Darren Horsfield v Mai-Wel Enterprises, Telarah
[2024] FWC 1474
•6 JUNE 2024
| [2024] FWC 1474 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darren Horsfield
v
Mai-Wel Enterprises, Telarah
(U2024/1838)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 6 JUNE 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Introduction
This decision concerns an application by Mr Darren Horsfield (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, Mai-Wel Limited (Respondent).
The Applicant was employed by the Respondent in a supported employment role on a full time basis mowing lawns. He was also a NDIS client of the Respondent.
The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).
I conducted a hearing, by telephone, on 28 May 2024 in relation to the Applicant’s request for an extension of time. The Applicant was supported in the hearing by his Behavioural Therapist and his current NDIS Coordinator.
In his unfair dismissal application the Applicant stated that his dismissal took effect in “2017”, but “no notification [was] received” of his dismissal. In the hearing the Applicant stated that he had a large operation on 10 July 20217 and was told by the Respondent that he would have his job back after his operation. The Applicant is of the belief that he was off work for a few months after his operation on 10 July 2017 before his employment with the Respondent came to an end. However, the Applicant does not recall receiving any communication from the Respondent about the ending of his employment with the Respondent. He said that he does not know what went wrong.
The employment records which the Respondent has, at this stage, been able to access are very limited. They indicate that the Applicant’s “exit” from the Respondent’s system took place on 8 August 2018. Those employment records do not indicate whether the Applicant resigned or was dismissed.
On the balance of probabilities and having regard to the very limited evidence before the Commission, I find that the Applicant’s employment with the Respondent came to an end on 8 August 2018 when his “exit” from the Respondent’s system took place. It is more likely than not that the Applicant remained employed for a period after his large operation on 10 July 2017, during which time he was unable to work as a result of his surgery and recovery from it. His employment with the Respondent then came to an end on 8 August 2018.
The Applicant lodged his unfair dismissal application in the Commission on 20 February 2024.
Section 394(2) of the Act states that an application for an unfair dismissal remedy 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). The period of 21 days ended at midnight on 29 August 2018. The application was therefore filed about 5.5 years outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[1] 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.[2]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[5]
The Applicant provided the following explanation for his delay in his unfair dismissal application form:
“I was diagnosed with a cancer of the tongue. This required extensive surgery, a skin graft, and radiation. Due to my cancer, and long recovery time, I have only just been able to address my unfair dismissal.”
The Applicant declined the opportunity given to him to provide the Commission with medical certificates, reports or other documents to support his application for an extension of time.
At the hearing the Applicant explained, as a reason for his delay in lodging his application, that he thought he was going to get his job with the Respondent back. The Applicant also gave evidence that he has worked in two other jobs since his employment with the Respondent came to an end. The first job was obtained prior to the COVID-19 pandemic and involved packing boxes, but the Applicant did not enjoy it so he left. The second job was obtained by the Applicant about eight to ten months ago and involves him working in a café.
Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for much of the long delay in filing his unfair dismissal application. The Applicant obviously required a significant amount of time to recover from his extensive surgery on 17 July 2017. I accept that the recovery period extended beyond 8 August 2018. However, the Applicant has been able to secure and work in two different jobs since his employment with the Respondent came to an end. Further, the material before the Commission does not suggest that the Respondent made any representations to the Applicant about being given his job back in the past 5.5 years.
The absence of an acceptable or reasonable explanation for much of the delay in lodging the application weighs against the Applicant’s contention that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
I accept that the Applicant was not given any clear notification that his employment with the Respondent had come to an end. This weighs in support of the Applicant’s argument that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant has not suggested that he took any action to dispute his dismissal, other than filing his unfair dismissal application in the Commission. This is a neutral consideration in my assessment as to whether there are exceptional circumstances.
Prejudice to the employer
The Applicant’s application has been lodged in the Commission about 5.5 years after his alleged dismissal took effect. The Respondent is a charity and has limited administrative resources. In 2018, the Respondent moved to a different record keeping system. The Respondent has been unable, at this time, to locate many employment records relating to the Applicant. The Respondent may be able to locate some additional records relating to the Applicant’s employment if given more time to do so, but many of the Respondent’s employees have moved on since 2018. Having regard to these matters, I am satisfied that there would be prejudice to the Respondent (caused by the lengthy delay) if I extended time for the application to be lodged in the Commission. This weighs against a conclusion that there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
The Applicant says that he was not given any reasons for his dismissal and he wanted to continue working for the Respondent after his treatment for cancer. The Applicant does not know why he was dismissed and wants to right the wrong that has been done to him.
The Respondent believes that the Applicant was not dismissed because the limited records it has found do not suggest that the Applicant was dismissed.
On the basis of the very limited information before the Commission, I consider there to be some merit in the Applicant’s unfair dismissal application. The Applicant was told that he would have his job back after his operation but that never eventuated and he does not recall receiving any communication from the Respondent about the ending of his employment. The fact that the limited records the Respondent has been able to access at this time do not state that the Applicant was dismissed is not persuasive of the Respondent’s argument that there was no dismissal. The merits of the case weigh in support of a conclusion that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
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.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although there is, on a prima facie basis, some merit in the Applicant’s unfair dismissal application and the Applicant was not given any clear notification that his employment with the Respondent had come to an end, the other relevant factors are either neutral or weigh against a finding of exceptional circumstances, particularly the long delay in lodging the applicantion and the absence of a reasonable or acceptable explanation for much of the delay. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms L. Clements and Ms C. Lavelle appeared for the Applicant.
Ms F. Gould and Mr T. Underwood appeared for the Respondent.
Hearing details:
2024.
Newcastle (by telephone):
28 May.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
Printed by authority of the Commonwealth Government Printer
<PR775728>
0
0
0