Daniel Bogie v Ian Cubitts Classic Home Improvements
[2023] FWC 1309
•1 JUNE 2023
| [2023] FWC 1309 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Daniel Bogie
v
Ian Cubitts Classic Home Improvements
(C2023/2024)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 1 JUNE 2023 |
General protections dismissal dispute – application filed out of time – circumstances not exceptional – application dismissed
Mr. Daniel Bogie (Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute relating to the Applicant’s dismissal from his employment with Ian Cubitt’s Classic Home Improvements Pty Limited (the Respondent) in alleged contravention of Part 3-1 of the FW Act.
The information provided in the application, and in the employer response form indicates that the application has been made out of time.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that an application to deal with a dismissal dispute must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the application was made on 6 April 2023.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 6 March 2023.
Was the application made within 21 days after the dismissal took effect?
In Singh v Trimatic Management Services Pty Ltd[1] the Full Bench stated, “[t]he 21-day period prescribed… does not include the day on which the dismissal took effect.”
The dismissal took effect on 6 March 2023. The final day of the 21-day period ended at midnight on 27 March 2023.
The application was made on 6 April 2023. The application was made ten days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I now need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 27 March 2023. The delay is the period commencing immediately after that time until 6 April 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Submissions and evidence
In Section 1.4 of the Form F8 Application, the Applicant was asked to:
Explain the reason for the delay, including any steps you have taken to dispute the dismissal or any other reason you think the Commission should take into account in considering whether to accept your application out of time.
In response, the Applicant stated:
The main reasoning for the delay in applying for unfair dismissal, is reflective of the situation in which this appeal is aligned with. The birth of our first born child, on the 13th of March 2023.
A hospital stay post birth and the adjustment of life with a new born baby in our household, while taking care of my partner who underwent major surgery and extremely traumatic circumstances – has not allowed me the time to complete this sooner.
On 27 April 2023, my Chambers issued directions in relation to the hearing of the matter. The directions set out section 366(2) of the Act and required the Applicant to to file with the Fair Work Commission and serve on the Respondent material that addresses the matters in s.366(2), including any witness statements, any other documentary evidence and submissions in support of his application for an extension of time by 4:00pm on Friday, 12 May 2023.
On 16 May 2023, the Applicant filed material which did not address the criteria under section 366(2). There was one sentence in this material which is potentially relevant to the reason for the delay which is as follows:
Upon receiving the termination letter, I experienced an overwhelming amount of sadness and financial pressure at an already stressful time.
At the hearing on 29 May 2023, I advised the Applicant that I would treat his Application and the material filed on 16 May 2023 as his evidence and submissions. I explained that the Applicant had not provided sufficiemt detail in relation to the criteria listed in section 366(2) of the Act. I told Applicant that he now had the opportunity to provide a full explanation of the circumstances. In response the Applicant provided the following evidence:
The birth of our new born child and the traumatic experience my partner went through to do so. I had quite a bit on my plate as far as leaving the hospital up to that date and as far as welcoming our boy into the world while dealing with the shock of it a week before she gave birth, it wasn’t the number one thing on my list to deal with, with everything that we had to go through in order to be able to bring him into the world and to bring him home. It was quite a bit of trauma to deal with after that. The 13th until we made the application was a justifiable time for myself personally to even think about doing so.
When asked what he meant by trauma, the Applicant gave the following evidence:
Post trauma from birth, my partner went through a lot of bring our boy into the world. It was six weeks until she was able to manage the baby on her own.
In relation to the reason for the delay, the Respondent submitted in the employer response form that it objected to the late application lodged and that the reason for late application was not sufficient.
Findings
I accept that the Applicant was experiencing a stressful time in the lead up to the birth of his child and that this was compounded by the sadness and shock that he felt upon being dismissed. I also accept that there was trauma associated with the birth and that the Applicant had ongoing caring responsibilities for his son and partner in the following weeks. The loss of employment and the birth of a child may individually be regarded as ordinary and common occurrences, but together could amount to exceptional circumstances in that an individual would not usually experience such significant life events at the same time.
These circumstances might explain why the application was not lodged between 6 and 13 March 2023 when the Applicant’s son was born and for a short period after 13 March 2023. However, the Applicant did not explain in any detail why these events prevented him from lodging the Application on or before 27 March 2023.
The Applicant did not provide any medical or other evidence about whether his capacity to prepare and lodge the Application was impaired or otherwise affected by his mental state. Apart from saying his partner was unable to manage the baby on her own for a six-week period, the Applicant did not explain the precise nature of his responsibilities for his partner and son and how they prevented him from filing the Application on time.
The six-week period that the Applicant’s partner was unable to care for their son on her own ended on 24 April 2023 and included the dates that the Applicant filed both the Unfair Dismissal Application and the General Protections Application.
The Applicant has not explained why he was able to lodge the Application during this six-week period, but not on 27 March 2023 or earlier.
In the circumstances I am not satisfied that the reasons for the delay advanced by the Applicant weigh in favour of a finding that there were exceptional circumstances.
What action was taken by the Applicant to dispute the dismissal?
The Applicant gave evidence that he took action to dispute the dismissal.
Submissions and evidence
During the hearing, the Applicant gave evidence that he disputed the dismissal by lodging an Unfair Dismissal Application with the Fair Work Commission on 2 April 2023 which he withdrew upon being made aware that he had not served the required minimum qualifying period.
Findings
I accept that the Applicant disputed the dismissal by lodging an Unfair Dismissal Application with the Fair Work Commission on 2 April 2023. The Applicant’s actions in this regard do not weigh in favour of a finding of exceptional circumstances as the Application was lodged more than 21 days after the Applicant was dismissed.
What is the prejudice to the employer (including prejudice caused by the delay)?
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore find that this does not weigh for or against the presence of exceptional circumstances.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[6]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore find that this does not weigh for or against the presence of exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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 can be considered exceptional.[8]
The reasons for the delay and that the Applicant’s actions in disputing the dismissal do not weigh in favour of a finding of exceptional circumstances. I note that the matters in subsections 366(2)(c)-(e) are neutral considerations.
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
As I am not satisfied that there are exceptional circumstances, there is no basis to allow an extension of time.
The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
Mr Q Mawkes, for the Applicant
Ms K Cubitt, for the Respondent
Hearing details:
2023.
Sydney (by Video).
29 May
[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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