Daniel MacDonald v Solomon Transport Pty Ltd

[2022] FWC 781

[2022] FWC 781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel MacDonald
v

Solomon Transport Pty Ltd

(U2022/2765)

DEPUTY PRESIDENT COLMAN MELBOURNE, 7 APRIL 2022

Extension of time (s 394(3)) – no exceptional circumstances – application dismissed

1. This decision concerns an application by Mr Daniel MacDonald under s 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. Mr MacDonald contends that he was dismissed from his employment with Solomon Transport Pty Ltd (company) on 4 February 2022 in circumstances that were unfair. The company objects to the application. It contends that there was no dismissal because Mr MacDonald walked out on his job after refusing to speak to his manager. Alternatively, the company contends that, if there was a dismissal, the application was filed out of time, and the Commission should not grant an extension.

1. Section 394(2) states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3).  Logically, the question of whether a person was dismissed would be determined before the question of whether an application was filed within the 21-day time period and if not whether an extension should be granted. But s 396(a) of the Act requires these latter questions to be determined first.

1. In this case, if there was a dismissal, it occurred on 4 February 2022. Mr MacDonald submitted that he walked off the job on 4 February 2022 because he was told at the start of his shift that there was no work for him. Mr MacDonald said that he understood this to mean that he had been dismissed on this day. For the purposes of considering whether the application was filed within time and if not whether an extension of time should be granted, I will proceed on the basis that the date of dismissal was 4 February 2022, as Mr MacDonald contends, and that the 21-day period for lodging an unfair dismissal application therefore ended at midnight on 25 February 2022. Mr MacDonald’s application was lodged on 3 March 2022, when it arrived by post at the Commission. It was six days out of time. In order for Mr MacDonald’s application to proceed, he requires an extension of time.

1. Section 394(3) states that the Commission may extend the period within which to lodge an unfair dismissal application if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section.

1. The Act does not indicate what kind of ‘reason for delay’ (s 394(3)(a)) might tell in favour of granting an extension of time, however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable explanation’. Mr MacDonald said that he had initially filed the wrong application, an unlawful termination application dated 18 February 2022. Mr MacDonald discontinued this application on 28 February 2022 over the telephone to the registry of the Commission. He then prepared an unfair dismissal application and sent it to the Commission by express post in early March 2022. Mr MacDonald said that he does not have a computer, and lives in a small town, and therefore had to send both the unlawful termination application and the unfair dismissal application to the Commission by post, which cost him time and resulted in delay.

1. I do not consider that Mr MacDonald has provided an acceptable or reasonable explanation for the delay. First, the fact that Mr MacDonald initially filed the wrong application simply reflects his unawareness of the relevant law. This is not a good reason for delay. I note that there is copious information on unfair dismissal applications on the Commission’s website. Mr MacDonald stated in his application that he has a smart phone. He could have looked up the relevant information. Further, Mr MacDonald did not have to lodge his application by post. The rules of the Commission allow an unfair dismissal application to be lodged in a number of different ways, including by email, and also by telephone (see rule 9 of the Fair Work Commission Rules). I do not accept that Mr MacDonald had no practical option but to use the post. Further, the post did not cause the delay in lodgement. The unfair dismissal application was sent in early March. The 21-day period had already elapsed on 25 February 2022. The reasons for the delay weigh against an extension of time.

1. I consider the following matters to be neutral considerations. First, this is not a case where the person first became aware of the (alleged) dismissal after it had taken effect (s 394(3)(b)). Secondly, there is no prejudice to the employer in this case (s 394(3)(d)). Thirdly, I am not aware of any matters that are relevant to the question of fairness as between Mr MacDonald and other persons (s 394(3)(f)).

1. I accept that Mr MacDonald took action to dispute his dismissal by filing his F9 unlawful termination application on 20 February 2022 (s 394(3)(c)). This weighs in favour of an extension of time.

1. As to the merits of the unfair dismissal application (s 394(3)(e)), Mr MacDonald contends that when he returned to work following a period of mandatory isolation on 4 February 2022, he was told by ‘Ted’ that there was no work for him, and that he should call the operations manager, ‘Gerard’. Mr MacDonald did not do so, because Gerard had told him on several occasions that he would never have hired him in the first place. Mr MacDonald said that he had earlier had a disagreement with Gerard about damage that had been done to a vehicle, and that he had told Gerard that the damage had been his (Gerard’s) fault. Mr MacDonald also stated in his F2 application that he was dismissed because of ‘nepotism’ and ‘prejudice’ but this was not developed. The company said that Mr MacDonald’s manager found him to be argumentative and that he would not follow instructions, but that Mr MacDonald had not been dismissed. Mr Jonathon Solomon, the company’s director, said that he had spoken to Mr MacDonald on the telephone and told him that he had not been dismissed. The company submitted that Mr MacDonald had resigned of his own accord.

1. An application to extend time is in the nature of an interlocutory application (see s 396). Although no final conclusions can be made, I consider the application to be weak. Mr MacDonald acknowledges that he left his shift and refused to speak to the operations manager. Even if Mr MacDonald was told that there was no work, this would not necessarily have meant that he was dismissed. Mr Macdonald does not contend that anyone told him that he was dismissed. An unfair dismissal application cannot succeed if the applicant was not dismissed. It is difficult to see how Mr MacDonald’s application could succeed in this case. The merits tell against an extension of time. But even if the merits had simply been neutral, it would not have altered my conclusion below.

1. Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. Mr MacDonald’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

D. MacDonald for himself
J. Solomon for the respondent

Conference details:

2022
Melbourne
7 April

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