David Hall v Clennett Hire Pty Ltd
[2023] FWC 500
•3 MARCH 2023
| [2023] FWC 500 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Hall
v
Clennett Hire Pty Ltd
(U2023/704)
| COMMISSIONER BISSETT | MELBOURNE, 3 MARCH 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed
Mr David Hall (the Applicant) has made an application in which he seeks a remedy for unfair dismissal. The Applicant was employed by Clennett Hire Pty Ltd (the Respondent) and was dismissed from his employment on Friday 6 January 2023.
Section 394 of the Fair Work Act 2009 (FW Act) requires that an application for unfair dismissal be made within 21 days of the date the dismissal takes effect. The Applicant was dismissed with effect on 6 January 2023. To be filed within time his application was required to be received by the Commission by midnight on Friday 27 January 2023. The Applicant made his application on 29 January 2023. It was therefore made 2 days outside of the statutory timeframe within which an application is required to be made. The Commission can only hear the application if it grants an extension of time to this timeframe.
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.
Under section 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 Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
The application for an extension of time was heard by me on 27 February 2023. Prior to that hearing I issued directions in which I invited the Applicant to file submissions that addressed those matters to which I am required to have regard in determining if exceptional circumstances exist such that an extension of time should be granted.
The Respondent was required to file their Form F3 – Employer response to an application for unfair dismissal and was invited to file any submissions it wished to make on the question of an extension of time. The Respondent confirmed the termination of employment date of the Applicant of 6 January 2023.
In his application for unfair dismissal and in the hearing before me the Applicant agreed that he had been dismissed on Friday 6 January 2023 and acknowledged that he had made his application outside the required 21-day period. He therefore accepted that he required an extension of time within which to make his application for unfair dismissal.
The Applicant made written and oral submissions as to the reason for the delay in making his application and made oral submissions in relation to the merits of his application.
The Respondent made brief submissions in relation to the merits of the Applicant’s claim and relied otherwise on what was included in the Form F3.
In order to determine if I should extend the time within which the application may be made I have considered each of the factors detailed in s.394(3) of the FW Act. Each of these matters must be considered in assessing whether there are exceptional circumstances.[1]
Reason for the delay
For the application to have been made within time, it needed to have been made by midnight on Friday 27 January 2023. The period of delay commenced immediately after that time and continued until the application was lodged on 29 January 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2]
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.[3]
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.[4]
In his written submissions the Applicant said:
As I have been accused of stealing, and that being the basis for the whole dismissal, I was waiting for the Tasmania police to look into this and advise. When it got to the 21st day, I had no choice but to lodge my application.
The reason I missed the deadline, was due to the severe depression I am dealing with. As you can imagine, this whole matter has only made that worse!! It is very easy to get confused with dates, etc when you feel this way.
I honestly thought the date of dismissal was the 7th, thus I thought the 21 day period, starting the day after dismissal, would be ‘due’ on the 29th. Once I realized my grave mistake, I noted as such in my application.[5]
The Applicant agreed that he was aware that his application must be made within 21 days after his dismissal. He said he received legal advice on 12 January 2023 and was advised that the 21 days starts from the day after the dismissal.
The Applicant said that he thought his employment had been terminated on 7 January 2023 although agreed that he was dismissed on the Friday. He said that he thought he should begin counting the 21 days after the day following his dismissal – that is that the first of the 21 days should be the Sunday.
I am satisfied, based on the evidence and submissions of the Applicant, that the reason for the delay in the making his application is that he mistook the date of the dismissal and when he thought he should start counting the 21 days within which he was required to make his application.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant agreed that he was aware of his dismissal on Friday 6 January 2023, the date it took effect.
What action was taken by the Applicant to dispute the dismissal?
The Applicant does not say that he took any action (beyond this application) to dispute his dismissal.
I am satisfied that the Applicant took no other action to dispute his dismissal.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent does not argue any prejudice to it arising from the delay.
I am satisfied that there would be no prejudice to the Respondent if an extension of time was granted.
What are the merits of the application?
The Applicant submitted that his dismissal was unfair because there was no evidence that he had stolen anything and therefore such a finding could not be made by the Respondent until the police concluded their investigation. The Applicant further said that the fact that the police had not yet completed their investigation suggested that the police were not taking the matter seriously.
While the Applicant conceded that he was aware of the dismissal on the day it took effect (Friday 6 January 2023) he said he was not given an opportunity to have anyone present at the meeting and that he was not told the purpose of the meeting he was called to on the Friday.
In his application the Applicant said he was not given a right of reply or an opportunity to explain what had happened in relation to the allegations made by the Respondent.
The Applicant said that he did not steal any fuel as alleged by the Respondent. He also said he was not told how he had breached the code of conduct or his contractual obligations.
The Respondent submitted that the Applicant had been advised that the meeting with him on 6 January 2023 was in relation to his excessive fuel use on his work provided fuel card. The Respondent maintained that it had evidence in relation to the allegations put to the Applicant.
In its response to the application, the Respondent set out details of the “Record of Conversation” held with the Applicant in which the Applicant was asked if he had filled a jerry can with petrol and paid for this using his company provided fuel card. The Applicant said that he had done so. The Applicant also indicated in that conversation that this was not the first time he had done this, but he was going to “put it back and pay for it”.[6]
It is evident to me that the merits of the application turn on contested facts. Evidence of these matters would need to be heard and weighed in a hearing of the merits of this application, if an extension of time is granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits” of the application[7] in determining if an extension of time should be granted.
Without a hearing of the evidence, it is not possible to make any firm assessment of the merits.
In the absence of having heard the evidence I have not factored consideration of the merits of the case into my consideration as to whether an extension of time should be granted.
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. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Are there exceptional circumstances such that an extension of time should be considered?
I have considered the submissions of both parties in addition to the material provided by the Applicant in his application and the response to that application provided by the Respondent.
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. Exceptional circumstances can 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]
While the Applicant said that he thought his dismissal had occurred on 7 January 2023 he agreed that he knew his dismissal had occurred on the Friday (6 January 2023). The Applicant did not make his submission until 11.31 pm on Sunday 29 January 2023, despite 21 days after the dismissal date also being a Friday. Even if the Applicant thought his dismissal occurred on 7 January 2023 he agreed that his dismissal occurred on the Friday, so the wrong date does not assist him. Further, the Applicant provides no rational explanation as to why he thought the 21 days started two days after the date of dismissal.
While it is the period following the 21 days that the Applicant must explain, in this case the Applicant has put nothing forward to suggest he could not have made the application within the 21-day period. Following his dismissal the Applicant quickly obtained legal advice (six days after his dismissal) at which time he was aware of the 21 day period within which he should make the application.
I acknowledge that the Applicant said the circumstances surrounding his dismissal “played havoc” with his depression and this affected his ability to deal with matters.[9] However, no specific evidence, including medical evidence, was provided in support of the submission.
There was, otherwise, no matters put to the Commission that weigh in favour of the finding of exceptional circumstances.
Having regard to all of the matters in s.394(3) of the FW Act I am therefore not convinced that there are exceptional circumstances such that an extension of time within which to make the application should be considered.
Conclusion
Having found that there are not exceptional circumstances the application has been filed out of time and there is no basis on which the Commission can grant an extension of time. The Applicant’s application for unfair dismissal is therefore dismissed. An order[10] to this effect will be issued with this decision.
COMMISSIONER
Appearances:
D Hall, Applicant
S Bone, for the Respondent
Hearing details:
2023.
Melbourne (by video)
February 27.
Final written submissions:
Applicant, 13 February 2023
Respondent, 23 February 2023
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39]
[2] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP)
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39]
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40]
[5] Court Book, p 45 (CB)
[6] CB, p 53
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36]
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13]
[9] CB, p 6
[10] PR760007
Printed by authority of the Commonwealth Government Printer
<PR751267>
0
0
0