David Bruce Ward v Gippsland Group Training T/A AGA Apprenticeships Plus

[2021] FWC 4690

[2021] FWC 4690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Bruce Ward
v
Gippsland Group Training T/A AGA Apprenticeships Plus
(U2021/6213)

COMMISSIONER LEE MELBOURNE, 5 AUGUST 2021

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed

Introduction

[1] Mr David Bruce Ward (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Gippsland Group Training T/A AGA Apprenticeships Plus (Respondent). The application was lodged on 15 July 2021.

[2] The reason given by the Respondent for the decision to terminate the Applicant’s employment was that they became aware of alleged serious misconduct of a sexual nature that occurred out-of-hours and “following questions from the Respondent and answers from the Applicant”. 1

[3] The matter was listed for Conference/Hearing on 2 August 2021. I determined that the matter would proceed by way of determinative conference as this would be the most effective and efficient way to resolve the matter. 2

Permission to appear

[4] The Respondent sought to be represented by a lawyer, and I heard from the Respondent’s lawyer on the question of their representation before the Commission. After considering the Respondent’s submissions and taking into account the complexity of the matter, I was not satisfied that granting the Respondent leave to be represented by a lawyer would enable the matter to be dealt with more efficiently. 3

[5] The Applicant did not seek to be represented by a lawyer or paid agent. Accordingly, at the determinative conference on 2 August 2021, both the Applicant and Respondent were self-represented.

Submissions

[6] On 27 July 2021, the Applicant filed a statement pursuant to directions issued on 21 July 2021. On 29 July, the Respondent filed a Form F3 – Employer response to unfair dismissal application.

[7] I note that the Respondent sent several emails to my chambers after the conclusion of the determinative conference on 2 August 2021. I have had no regard to those emails and the materials attached to those emails in determining the matter.

Witnesses

[8] The Applicant gave evidence on his own behalf. No witnesses gave evidence on behalf of the Respondent.

Application was filed outside the statutory timeframe

[9] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time. Section 394(2) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

[10] It is not in contest that the Respondent terminated the Applicant’s employment with effect from 22 March 2021. Based on this fact, the application for a remedy should have been lodged by no later than 12 April 2021. The application was therefore lodged outside of the statutory time frame. The application was made in effect, 94 days after the last date on which it should have been made.

[11] Under s.394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal 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) 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.”

[12] Each of these matters need to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant so it is also necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 4

[13] 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 or unprecedented, nor do they need to be very rare. 5 I must be satisfied that, taking into account s.394(3) of the FW Act, that there are exceptional circumstances.

[14] I set out my consideration of each matter below.

Reason for the delay

[15] The FW Act does not specify what reason for delay might tell in favour of granting an extension of time 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. 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. 6

[16] After the Applicant’s dismissal on 22 March 2021, the Applicant contacted a “no win, no fee” law firm on 31 March 2021. There were email exchanges between the Applicant and the law firm for 10 days until 10 April 2021, 2 days before the last day to lodge an application within the statutory time frame. At that point, the firm advised the Applicant that he would need to go to “stage 2”, which would incur a cost of $5,500 with an upfront payment of $2,000. The Applicant advised the firm that he could not continue to engage their services as he could not afford the costs. The Applicant claims that the firm did not tell him that he could lodge the application himself.

[17] The Applicant gave evidence that his mental health “took a hit”. The factors that contributed to this this were that the Applicant:

•  Was arrested on 18 March 2021;

•  Was granted bail 48 hours later;

•  Had an intervention order placed against him;

•  Was unable to see his wife and son, who is 11 years old and has autism;

•  Did not have access to his bank account; and

•  Had trouble finding accommodation and ultimately found accommodation in a caravan park.

[18] The Applicant made the following submissions:

“As mentioned earlier, I did seek legal advise (sic) but for financial reasons I couldn’t continue, but more to the point, I was not prepared mentally, I couldn’t focus on anything and certainly couldn’t comprehend where my life was heading. To lose everything in a very short space of time was very challenging and my mental health certainly was having a huge impact on my decisions, I could not comprehend anything, I had absolutely no direction, no focus and to be honest, life was just to bloody hard.

My life was on a roller coaster, I finally hit rock bottom on the 19th April and I attempted suicide. There are a number of reasons why this occurred and my termination was certainly a contributing factor, this had been outlined in my sessions with my psychologist.” 7

[19] The Applicant also stated that:

“Over the last few months since my attempted suicide, I have been receiving help through a psychologist and my GP, as time has progressed my mental health has gotten a whole lot better and after many discussions with my psychologist relating to my employment, my termination, I was advised that I should pursue an unfair dismissal case. Mentally I am in a great space to start this process.

If I realistically had have tried this back in March/April, then I wouldn’t have done myself any justice, I wouldn’t have understood anything, wouldn’t have had clear thoughts and that the process may have been more detrimental to my mental health at the time.

I also wanted to wait and see/understand the full brief relating to the allegations from the Police which I didn’t receive until Thursday 8th July, now understanding the charges, I was able to move forward with this application and it also gives me the proof that a certain allegation from my employer is false, unfounded and untrue.” 8

[20] The Applicant also indicated that he was hospitalised for “two and a half days”. 9 During the determinative conference, the Applicant spoke of the considerable improvements he has made regarding his mental health, with the benefit of assistance from his health professionals.10

[21] Having considered the evidence of the Applicant, I accept that the nature of the allegations had a significant impact on him and his mental state. However, it is also apparent that the Applicant was able to, despite this impact, contact a law firm well within the 21-day period. Ultimately, the fees the firm charged led to the Applicant not pursuing the application through the firm. However, the Applicant could have made an application himself within the statutory time period. While the Applicant claims that he did not know he could lodge the application himself, lack of awareness is not an acceptable reason. The Applicant could have made his own inquiries about lodging an application but failed to do so. 11 Furthermore, the Applicant was aware of the 21-day time limit.12

[22] I accept that the Applicant’s attempted suicide on 19 March 2021 is an exceptional event. However, since that time, the Applicant’s mental health has improved considerably. Reflecting this improvement, the Applicant secured “a couple of weeks” employment “about a month and a half ago”. The Applicant is also currently employed. 13 However, it is not apparent that aside from the time surrounding the attempted suicide, which was a significant time ago, the Applicant could not have lodged an application in May or even June.

[23] It appears that the decision of the Applicant to lodge the application at this stage was triggered, at least to some extent, as a result of a conversation he had with an organisation that provided free legal advice. The Applicant’s evidence on this point was as follows:

“No, I literally had no idea until a couple of weeks ago, when I rang just an organisation that gives you free advice, it's like the Law Institute.  I can't remember the name of it.  I just spoke to them about some other matters and then I threw that one up, and yes, they said to me, that yes, at a cost of $75, I could do an application myself.  I wasn't aware of that, and they advised me that they should have told me.  But yes, I wasn't aware, and they suggested that if I'm in the right frame of mind, yes to potentially have a look at it again, which I've done.” 14

[24] Further, a driver for the delay of this length of time was that he “wanted to wait and see/understand the full brief relating to the allegations from the Police”. 15

[25] Taking into account all of the circumstances, I accept there was a significant mental health episode for the Applicant. This, along with the Applicant’s mental health, provides an acceptable reason for some delay. However, this delay totals 94 days and I do not consider those circumstances to be an acceptable reason for such a significant delay. The Applicant has been able to secure employment during the period of delay, evidencing that he had the capacity to lodge an application during that time. Further, a factor in the delay has clearly been driven by a desire of the Applicant to wait to see the police brief. While the interest of the Applicant to see that brief is understandable from the Applicant’s point of view, it is not an acceptable reason for the delay.

[26] Taking into account all the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for what is a very considerable period of delay. That is a matter that weighs against the Applicant in this case.

Whether Applicant first became aware of the dismissal after the date it took effect

[27] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect. The evidence is that from 18 March to 22 March 2021, the Applicant was suspended on full pay. He was then terminated on 22 March 2021. The Applicant was advised on 22 March 2021 that his employment would end on that date. In the circumstances, that is a matter that is neutral.

Action taken by the Applicant to dispute his dismissal

[28] Turning next to the question action taken by the Applicant to dispute his dismissal. There is no evidence before me to suggest that the Applicant took any action to dispute the dismissal beyond attempting to engage a lawyer. After the Applicant was advised of the firm’s fees, he failed to proceed with the application on his own accord. In the circumstances, that is a matter that is neutral.

Prejudice

[29] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor that weighs in favour of an Applicant for an extension of time. A long delay gives rise to a general presumption of prejudice. 16 The Respondent submitted that there is no prejudice.17 In the circumstances, that is a matter that is neutral in the instant case.

Merits of the application

[30] As to the merits of the application, in cases such as this where the substantial merits of an application are not fully examined or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.

[31] The nature of the Respondent’s allegations against the Applicant are to the effect that the Applicant has been secretly recording video/s of his stepdaughter when she is naked in the shower. These videos were allegedly found on his phone. The footage is alleged to have been obtained via a secretly installed camera. The Applicant denies that the allegations are true.

[32] The key reason for the dismissal as set out in the termination letter was:

“Because of the nature of your job and its connection to the safety of students, trainees and apprentices and the reputation of the company we regard your position as untenable as a result of your actions.”

[33] The Commission would need to be satisfied, on the balance of probabilities, that the alleged misconduct occurred. If not satisfied, the application would have a strong chance of success. The conduct was out-of-hours conduct, and generally, out-of-hours conduct must have a relevant connection to the employment relationship.

[34] Rose v Telstra 18 looked at relevant decisions on out-of-hours conduct and provides the following summary:

“•  The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer; or

•  The conduct damages the employer’s interests; or

•  The conduct is incompatible with the employee’s duty as an employee.” 19

[35] Further, it was said in Department of Social Security v Uink that it would be harsh, unjust, and unreasonable for an employer to dismiss an employee summarily on the ground of serious misconduct, without taking reasonable steps to investigate the allegations of misconduct and give the employee a fair chance of answering them. 20 It is not apparent to me that the Respondent undertook any investigatory process of its own.21

[36] Therefore, it appears to me that the Applicant’s claim is, on a preliminary assessment basis, not without merit. That is not to suggest that it will succeed, but I am satisfied that there is at least some merit which would give the Applicant a justifiable reason to pursue his unfair dismissal claim.

[37] In summary, the employer would need to satisfy the Commission that:

•  The alleged misconduct occurred;

•  There was the requisite connection of the out of hours conduct with the employment relationship; and

•  There was sufficient investigation of the allegations.

[38] Making an assessment of the merits against that background, the Applicant has an arguable case that the dismissal was unfair. In the circumstances, that is a matter that weighs in favour of the Applicant.

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

[39] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, this consideration concerns the importance of the application of consistent principles in cases of this kind. Thus, ensuring fairness between the Applicant and other persons in a similar or like 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.

[40] 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

[41] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action taken by one party, in this case a dismissal, that the right to question that action will be exercised promptly. Otherwise, except in exceptional circumstances, the right to bring the action will be lost.

[42] A person who seeks relief from an unfair dismissal must make an application within 21 days after it takes effect. It is only in exceptional circumstances that the Commission will consider whether to allow a further period. In weighing all of the matters and taking into account the matters set out in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[43] I am not satisfied that there is an acceptable reason for the delay. This weighs against the Applicant. Factors considered under ss.394(3)(b), (c) and (d) and (f) are neutral. Section 394(3)(e), the merits of the case, weighs in favour of the Applicant to the extent that the Applicant has an arguable case.

[44] In all of the circumstances, I am not satisfied that there are exceptional circumstances. Therefore, there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect will separately be issued.

COMMISSIONER

Appearances:

D Ward, Applicant.

N West, for the Respondent.

Hearing details:

2021.
Melbourne (by telephone):
August 2.

Printed by authority of the Commonwealth Government Printer

<PR732390>

 1   Form F3 – Employer response to unfair dismissal application at 2.2.

 2   Transcript at PN37.

 3   Transcript at PN13.

 4   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 5   Ibid.

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 7   Statement of David Bruce Ward lodged 27 July 2021.

 8   Ibid.

 9   Transcript at PN74.

 10   Transcript at PN100 – PN101.

 11   Transcript at PN120 – PN121.

 12   Transcript at PN122 – PN123.

 13   Transcript at PN104.

 14   Transcript at PN96.

 15   See also Transcript at P110 and PN153.

 16   Brisbane South Regional Health Authority v Taylor [1996] HCA 25 (2 October 1996), [(1996) 186 CLR 541, at p. 556].

 17   Transcript at PN160.

 18   Rose v Telstra Corporation Limited Print Q9292 (AIRC, Ross VP, 4 December 1998).

 19   Rose v Telstra Corporation Limited Print Q9292 (AIRC, Ross VP, 4 December 1998); cited with approval in Farquharson v Qantas Airways Limited PR971685 (AIRCFB, Lawler VP, O’Callaghan SDP, Raffaelli C, 10 August 2006) at para. 25, [(2006) 155 IR 22].

 20   Department of Social Security v Uink Print P7680 (AIRCFB, Ross VP, Drake DP, Palmer C, 24 December 1997); citing Schaale v Hoechst Australia Ltd (1993) 47 IR 249 at p. 252.

 21   Transcript at PN116.