David Bernardo v Calvary Private Health Care Canberra Limited
[2023] FWC 2247
•6 SEPTEMBER 2023
| [2023] FWC 2247 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Bernardo
v
Calvary Private Health Care Canberra Limited
(U2023/6838)
| DEPUTY PRESIDENT DEAN | CANBERRA, 6 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Mr David Bernardo (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed by Calvary Private Health Care Canberra Limited (Respondent).
The Respondent objected to the application on the basis that it was made outside the 21-day period prescribed by the Act and that the Applicant’s employment did not meet the minimum employment period.
There was a conflict as to when the Applicant’s employment ended. In his application for an unfair dismissal remedy, the Applicant stated that his dismissal took effect on 3 July 2023 when he received an ‘exit interview’ email. The Respondent says the Applicant was engaged as a casual employee after he resigned from his part time employment on 1 June 2022. It is not in dispute that the Applicant resigned freely and of his own accord. It is also not in dispute that the Applicant worked only one shift as a casual employee on 9 July 2022 and did not work again after this date.
Section 394(2) of the Act provides 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 Commission must first consider whether to grant a further period for the application to be made under s 394(3) prior to determining other jurisdictional objections[1].
The Applicant’s unfair dismissal application was lodged on 26 July 2023. Whether the Applicant’s employment ended on 3 July 2023 as he claims, or as the Respondent claims on either 9 July being his only casual shift or 4 August 2022 when his manager cancelled all future shifts he had been rostered to work, the application was made outside the 21 day time limit prescribed by the Act. I must therefore decide whether to grant a further period for the application to be made under s 394(3).
The application was listed for hearing by telephone on 5 September 2023 to consider the jurisdictional objection. The Applicant appeared and gave evidence on his own behalf. Mr M Douglas appeared for the Respondent.
Effective date of dismissal
I am satisfied and find that the Applicant’s employment ended on 4 August 2022 when his manager cancelled the shift he was rostered to work 13 August 2022 and did not roster him to work again. The Applicant gave evidence he was informed by his manager that the reason his shifts were cancelled was that permanent staff had to be prioritised over casual staff when filling shifts.
The Applicant was clearly aware that he was not likely to be rostered to work after this time because he made a formal complaint to the Respondent on 1 September 2022 which included that he was not being rostered to work as promised by his manager.
As a result, I am satisfied that 4 August 2022 was the date the Applicant’s employment ended.
Extension of time
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.[2] 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.[3]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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 now consider these matters in the context of this application.
Reason for the delay
The Act does not specify what reason for the 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.[4]
The Applicant said he was unclear about whether he had been dismissed until he received an email on 3 July 2023 from the Respondent requesting that he participate in an exit interview. I do not accept this given the cancellation of his rostered shifts in July and August 2022 and the advice he received to the effect that the Respondent was going to prioritise permanent staff rather than rostering casual staff for shifts. Even if I accept what the Applicant contends and his employment did not end until 3 July 2023, there is still no acceptable explanation for the delay of 3 days.
I am not satisfied that this is an acceptable reason for the delay in making an application, having already found that the Applicant knew he was not going to be provided with further shifts as early as August 2022. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
As set out earlier, I am satisfied and find that the Applicant was told he would no longer be likely to be rostered to work, and in fact was not rostered to work after 9 July 2023.
This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant engaged in communication with his manager and other officers of the Respondent as to whether he would be rostered for further work after his shifts in July and August 2022 were cancelled.
Overall, this weighs in favour of a finding that there are exceptional circumstances.
Prejudice to the employer
I accept the delay is a lengthy one. However, in the absence of any specific evidence as to what prejudice the Respondent may suffer, I consider this to be a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.
Based on the limited evidence before the Commission, it is not possible to form a view about the merits of the application. Accordingly, this is a neutral consideration.
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 raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. 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).
It is unnecessary to deal with the Respondent’s jurisdictional objection as to whether the Applicant met the minimum employment period given I have decided not to extend time for the application to proceed.
Accordingly, this application is dismissed.
DEPUTY PRESIDENT
Appearances:
D Bernardo on his own behalf.
M Douglas for Calvary Private Health Care Canberra Limited.
Hearing details:
2023.
By telephone:
September 5.
[1] See Herc v Hays Specialist Recruitment (Australia) Pty Ltd[2022] FWCFB 234.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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