Damian Saleeby v The Northcott Society

[2021] FWC 2909

[2021] FWC 2909

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damian Saleeby
v
The Northcott Society
(U2021/1194)

DEPUTY PRESIDENT EASTON SYDNEY, 20 MAY 2021

Application for an unfair dismissal remedy – unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

[1] The Northcott Society (“Northcott”) is a large disability services provider. On 24 December 2020 Northcott dismissed Mr Saleeby from his employment because of two separate incidents on 4 September 2020. Mr Saleeby worked for Northcott as a Disability Support Worker for almost 4 years and is alleged to have assaulted two customers in his care. The two incidents are also the subject of criminal proceedings.

[2] On 15 February 2021, 53 days after the dismissal took effect, Mr Saleeby made application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (“the Act”). Mr Saleeby’s application is 32 days late. Mr Saleeby says his application was delayed because of his poor mental health and because he thought that he could not commence his claim until after the criminal proceedings were resolved.

[3] For the reasons that follow, I am not satisfied that there are exceptional circumstances and I must therefore decline to allow Mr Saleeby an extension of time.

Section 394 – Exceptional Circumstances

[4] An unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s 394(2)), or within such further period as the Commission allows (per s 394(3)). The period of 21 days ended at midnight on 14 January 2021.

[5] The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances” (per s 394(3)). The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:

“[13] in summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. it is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. the ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

…

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[6] In considering whether there are exceptional circumstances, s 394(3) specifically requires the Commission to take into account the following:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[7] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 the Full Bench found that:

(a) generally the assessment of whether exceptional circumstances exist will require the consideration of all the relevant circumstances because even though no one factor may be exceptional, the factors considered in combination might support such a finding (at [17] and [38]);

(b) the obligation to “take into account” the matters set out in the statute means that each of those matters must be treated as a matter of significance in the decision-making process insofar as they are relevant (at [19]);

(c) no one factor need be exceptional in order to enliven the discretion to extend time (at [38]); and

(d) individual matters might not be particularly significant when viewed in isolation, but it is necessary to consider the matters collectively and to ask whether, collectively, the matters disclose exceptional circumstances (at [39]).

Reason for the delay

[8] When taking into account the reason for the delay (per s 394(3)(a)) the Commission invariably assesses whether the applicant has a credible or reasonable explanation for the delay. The Commission does so as part of the process of determining whether exceptional circumstances exist.

[9] A credible explanation for the whole of the period of the delay is not a condition precedent to finding exceptional circumstances exist - it is but one factor for the Commission to take into account. In other words, it is not essential that an applicant provide a credible explanation for the delay.¹ Generally if an applicant does not have a credible explanation for the some or all of the delay the Commission is less likely to find that exceptional circumstances apply. Conversely a credible explanation for the entirety of the delay will usually support a finding of exceptional circumstances.

[10] In his written submissions Mr Saleeby offered the following explanation for the delay:

“I have been suffering with a lower back injury from August 2020 and was mostly bedridden. I had been in pain for many months. In January 2021, my dog of 14 years had to be put down from cancer, which caused huge mental turmoil. My mental state had gotten extremely bad after I was unfairly terminated and I found it very difficult to think clearly and act wisely.

It was during this time, with a court case against me, I thought I couldn’t apply for unfair dismissal because the court case had not yet been resolved. After taking medication prescribed by my doctor, I sought some legal advice from a visiting friend, who was also a retired solicitor, and was advised to apply for unfair dismissal anyway, which I did.

I feel that for me the circumstances were extraordinary and exceptional as I have never faced anything like this before. Also knowing that I’m innocent of the charges has brought a huge weight upon me.

It was not my intention to contravene the 21 day deadline but my inability to think clearly at the time.”

[11] Mr Saleeby provided a report from his treating doctor in the following terms:

“This is to certify that Mr Damian Saleeby age 61yrs 6mnths, had work related lower back pain in August 2020 and is on work cover since then. He was very stressed at that time due to work place incident/situation as well. He consulted me about his stress and anxiety at that time.

He has seen physiotherapy, chiropractor/osteopath and had few investigations and I have referred him to a neurosurgeon for assessment.”

[12] At hearing Mr Saleeby was honest and forthright in further explaining his state of mind at the time: after being dismissed Mr Saleeby “just shut down”, he got by with help from his friends, but in hindsight he acknowledges that he should have sought specialist help about his mental health.

[13] Mr Saleeby also formed a belief that he was not able to lodge his unfair dismissal claim until after his criminal proceedings were resolved. He says he formed this view “out of the depression [he] was in.” In early January he sought advice from friends who agreed with his impression that he was not entitled to make an unfair dismissal claim until the criminal proceedings were resolved.

[14] During this time he applied for other work, from a computer in bed and for no more than half an hour per day, by sending prospective employers only a generic CV. He said that he wanted to be able to get work but that this limited activity was all he could muster. Mr Saleeby has not been successful in gaining other employment and continues to be treated for back pain.

[15] Mr Saleeby has had some significant difficulties in addition to the understandable stress of losing his job. He is still facing criminal charges and dealing with physical pain that he attributes to a workplace injury. He has also suffered the trauma of losing a household pet after a long period.

[16] In taking into account Mr Saleeby’s reason for delay as part of the process of considering whether there are exceptional circumstances, unfortunately the only available conclusion is that Mr Saleeby’s reasons for delay weigh against a finding that there were exceptional circumstances.

[17] Accepting Mr Saleeby’s self-assessment on face value, and acknowledging his personal struggles, I cannot be satisfied on the materials before me that Mr Saleeby was medically unable to lodge his application earlier than he did.

[18] The report from Mr Saleeby’s treating doctor does not provide any medical evidence of Mr Saleeby’s capacity to lodge his application and refers in only general terms to Mr Saleeby being “very stressed at that time”. The period of time to which the treating doctor is referring is not clear from the report itself and he does not directly report upon Mr Saleeby’s capacity to commence legal proceedings at all.

[19] Of course the circumstances Mr Saleeby found himself in were exceptional to him, but that is not the test. Mr Saleeby must clear the ‘high hurdle’ of establishing that the circumstances of the case, when viewed together, can reasonably be seen as out of the ordinary course, unusual, special or uncommon.

[20] Mr Saleeby relies upon a combination of mental health difficulties and his misbelief that he was not able to commence an unfair dismissal proceeding until criminal proceedings were resolved. Mere ignorance of the statutory time limit is not an exceptional circumstance.² Mr Saleeby’s erroneous understanding of the significance of the criminal proceedings, even after recognising that his misbelief arose in part from his poor mental health, is not an acceptable explanation for the delay and does not point towards there being exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[21] Mr Saleeby was notified of the dismissal in writing on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[22] On 29 December 2020 Mr Saleeby sent an email to Northcott simply stating “what a crock, this matter will go further.”

[23] The email sent by Mr Saleeby does literally dispute Northcott’s decision to dismiss him and does literally refer to some kind of further challenge to the dismissal. The email was sent shortly after the dismissal but was very brief. Mr Saleeby explained that the hearing that the few short words in his email was all that he was able to write at the time.

[24] Mr Saleeby did not otherwise take any steps to challenge his dismissal during the relevant period. On balance the action taken by Mr Saleeby to dispute the dismissal points against there being exceptional circumstances.

Prejudice to the employer

[25] Northcott submitted that the substantial application is likely to be decided by cross-examination of witnesses and investigators who are likely to have their memory affected by the delay. Northcott is entitled to make this submission given that the incidents about which Mr Saleeby was dismissed took place on 2 September 2020. However Northcott must accept some responsibility for the fact that 8 months have now passed since the incident. Mr Saleeby was not dismissed by Northcott until almost 4 months after the incident. If Mr Saleeby had promptly lodged his application within the statutory time limit Northcott would still have very similar difficulties regarding fading memories and the like. I am satisfied that there is some minor prejudice to Northcott caused by the delay.

[26] The prejudice to the employer caused by the delay, in this situation, points slightly against there being exceptional circumstances.

Merits of the application

[27] The Act requires me to take into account the merits of the application in considering whether there are exceptional circumstances. It is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture.

[28] Section 387 requires consideration at final hearing of a number of factors including whether there was a valid reason for the dismissal related to the person’s capacity, whether the person was given an opportunity to respond, whether the person had been warned about that unsatisfactory performance before the dismissal and so on.

[29] In this matter the merits of the application can only be regarded as a neutral factor. Mr Saleeby was dismissed for alleged misconduct, being that he allegedly assaulted two customers in breach of his duty of care as a Disability Support Worker. Mr Saleeby is facing criminal charges in relation to the same two incidents. In the show cause letter issued to Mr Saleeby on 14 September 2020, Northcott’s allegations were as follows:

“1) It has been alleged that on 4th September 2020 at 8:05 am, in the presence of a visitor, when Customer – [AA] walked in to the office and stood in front of a cupboard…, you grabbed [AA] with your two hands on both of [AA]’s shoulders, pushed him out the door with enough force that, if [BB] (Unisson staff) had not been positioned (standing at the wall directly opposite the door leading out of the office) to stop him, [AA] would have travelled approximately 2 metres into the wall.

2) It has been alleged that during the same event on 4th September 2020, you have spoken to [AA] in an aggressive tone using words along the line of: "I am sick of you already".

3) It has been alleged that on 4th September 2020, when [CC] put his hand around the corner, into the office, reaching for something, you smacked [CC] on the back of his hand and just shook your head.”

[30] Mr Saleeby’s contrary account is that he didn’t push anyone and he didn’t speak harshly to anyone.

[31] Northcott was required to take the allegations against Mr Saleeby very seriously and it properly did so. That said, the term ‘assault’ covers a wide spectrum of conduct from very minor to very serious. Assuming for present purposes that the ‘assaults’ occurred as described above, it is quite conceivable that these assaults might fall at the minor end of the spectrum and might not constitute grounds for summary dismissal.

[32] From my preliminary review of each party’s case, I can only conclude that Mr Saleeby’s case is arguable.

Fairness as between the person and other persons in a similar position

[33] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Saleeby and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[34] Having regard to the above matters I am not satisfied that there are exceptional circumstances for the purposes of s 394(3) of the Act. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I must therefore decline to allow a further period for Mr Saleeby’s application to be made and dismiss his application for an unfair dismissal remedy.

DEPUTY PRESIDENT

Appearances:

D Saleeby, Applicant

V Karraz and G Tyrrell on behalf of the Respondent

Hearing details:

2021.

Sydney

17 May 2021.

Printed by authority of the Commonwealth Government Printer

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1 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, [2018] FWCFB 901 at [30]-[40].

2 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 at [14].