David McGill v Downer EDI Works Pty Ltd

[2021] FWC 2565

[2021] FWC 2565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David McGill
v
Downer EDI Works Pty Ltd
(U2021/2842)

COMMISSIONER WILSON MELBOURNE, 12 MAY 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by David McGill alleging unfair dismissal against Downer EDI Works Pty Ltd (Downer EDI or the Respondent). Mr McGill was dismissed on Wednesday, 3 March 2021 following a short investigation by Downer EDI into allegations of serious misconduct which had first been put to him on 1 March 2021. Mr McGill’s application for unfair dismissal remedy was lodged in the Fair Work Commission on Wednesday 6 April 2021.

[2] Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates referred to above, Mr McGill’s application was made outside of the statutory time limit, with it having been made after the expiry of the 21 day time period allowed for by the FW Act, which ended on Wednesday, 24 March 2021.

[3] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr McGill’s application. Downer EDI object to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application.

[4] Evidence was received from Mr McGill on his own behalf and from Mr Tim Gilmour, the Respondent’s Workshop Supervisor. Mr McGill represented himself and Mr Andy Lynch, Legal Counsel, Industrial Relations a lawyer employed by Downer EDI represented the Respondent.

[5] In considering an application for an extension of time for the making of an unfair dismissal application, the FW Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion 1 and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.2

[6] I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Mr McGill’s case and that an extension of time should not be granted for the making of his unfair dismissal application.

BACKGROUND

[7] Mr McGill was employed by Downer EDI as a Field Mechanic from late in October 2019 until the termination of his employment on 3 March 2021.

[8] The circumstances of the termination of Mr McGill’s employment include that allegations were put to him on Monday, 1 March 2021 by his workshop supervisor Tim Gilmour who told him that he had been stood down pending an investigation into two incidents of incorrect timesheets on 11 January 2021 and 16 January 2021. The allegation put to Mr McGill was that he had deliberately falsified his timesheets on those days with him not accurately recording his finishing times. Mr McGill was required to attend a meeting with Downer EDI on 3 March 2021 which included Mr Gilmour and also the company’s National Operations Manager – Assets, Rob Elsley. Mr McGill was asked in the meeting to respond to the allegations and after he had done so, Downer EDI considered its position and formed the view that there had been a deliberate falsification of timesheets. The Respondent determined that Mr McGill’s actions were serious misconduct and his employment would be terminated with effect from 3 March 2021.

[9] Having been dismissed by Downer EDI, Mr McGill received a written confirmation of the matter on 4 March 2021. On 10 March 2021, Mr McGill spoke to Mr Gilmour expressing his disappointment about his dismissal. Mr Gilmour’s evidence is that Mr McGill had stated to him words to the effect that he may “take things further” but did not ask questions about the reason for the dismissal; challenge or dispute the reason for dismissal; or request any remedy or compensation as a result of the decision to terminate his employment”. 3

[10] Mr McGill’s evidence to the Commission about the delay in filing his application for unfair dismissal includes that he initially had some difficulty assimilating what had occurred to him having been dismissed from a job he thoroughly enjoyed. However, by 15 March 2021 he had formed the view that he wanted to challenge his dismissal and on that day printed and filled out the forms necessary for an unfair dismissal application to the Commission. A few days later, on 21 March 2021, he spoke with a lawyer about his circumstances and asked his opinion whether he had grounds for an unfair dismissal case. The lawyer was present at the care facility of Mr McGill’s mother-in-law and when he went to see her, Mr McGill had not known the lawyer would be there, or that the lawyer had some knowledge of employment matters. After hearing Mr McGill’s situation, the lawyer suggested that an unfair dismissal application had some merit and that Mr McGill should pursue the matter but “reiterated the importance of sending the application in within the 21 day period”. 4 Later the same day as having received the advice, namely 21 March 2021, Mr McGill walked to a letter box near his home and posted an envelope containing an unfair dismissal application.

[11] For Mr McGill’s unfair dismissal application to be within time it would have had to be received by the Fair Work Commission by no later than Wednesday, 24 March 2021.

[12] Mr McGill’s unfair dismissal application was received in the Commission on Tuesday, 6 April 2021, the day after the Easter holidays. It was received in an ordinary envelope (that is, it is not an express post envelope). Unfortunately, the envelope is not date stamped by Australia Post but does show clearly that it was posted with postage stamps worth two dollars.

[13] Since the application was received on 6 April 2021, it is 13 days out of time.

LEGISLATION

[14] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:

“394 Application for unfair dismissal remedy

(1) ….

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[15] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria.

[16] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”  5 

[17] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 6

[18] In considering whether an extension of time should be granted to Mr McGill, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[19] The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 7 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.8 An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.9 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.10

[20] The delay to be considered in matters such as these is the delay in making the application after the expiry of the statutory time limit. In Mr McGill’s case the relevant period to be considered is that after the last day for a lodgement to be within time, namely Wednesday, 24 March 2021.

[21] In his evidence, Mr McGill set out that the reason for the delay in filing the application was his reliance on Australia Post to ensure delivery of the application in time. He had posted the application on Sunday, 21 March 2021, and expected it would be delivered by Wednesday, 24 March 2021. He considers in hindsight that it may have been wiser to post the application using registered mail.

[22] Before posting the unfair dismissal application, Mr McGill had rung his former supervisor Mr Gilmour on 10 March 2021 in order to express his belief that his termination was unfair or disproportionate. Several days later, on or around 15 March 2021, Mr McGill’s partner obtained from the FWC’s website a copy of the unfair dismissal application form and printed it out. Mr McGill completed the form and signed and dated it 15 March 2021. However, he did not at that time do anything further to lodge the application. Later, on Sunday, 21 March 2021, he discussed his circumstances with a lawyer who happened to be at his mother-in-law’s care facility in Ballarat when he went to see her that Sunday. The lawyer had some familiarity with employment matters and gave Mr McGill advice to the effect that there was some purpose in making an unfair dismissal application but impressed upon Mr McGill the need to make the application within 21 days of his dismissal taking effect. The lawyer was not formally retained by Mr McGill and when Mr McGill went to visit his mother-in-law, he had not been expecting to see the lawyer; instead, the conversation the two had appears to have been opportunistic on Mr McGill’s part. The conversation though prompted Mr McGill to post the application later the same day, Sunday, 21 March 2021.

[23] In many respects Mr McGill’s case is that he believed Australia Post would be able to deliver his application within the three business days remaining for the making of an in-time application. He considers it to be unfair to now penalise him because it took Australia Post more than two weeks, until Tuesday, 6 April 2021, to deliver an item posted in East Bentleigh, Victoria to the Fair Work Commission in Exhibition Street, Melbourne.

[24] In this case the reason for the delay in making the application comprises two parts; the time taken by Mr McGill to assimilate the circumstances of his dismissal and to then be motivated to finally decide to make an application (which took from 3 March 2021 until 21 March 2021); and secondly his reliance upon Australia Post’s delivery schedules to ensure the application made, somewhat late in the piece, was lodged within the statutory time limits.

[25] Mr McGill is not to be criticised for the first element of these reasons; clearly any person who has been dismissed has rights to understand what has occurred to them, to seek out views as to what can be done and to then exercise those rights. However, there can be little doubt that as an applicant moves inexorably closer to the time-limit for making an application that the simple logistics of making an application to the Commission become ever riskier. The risks associated with lodgement would usually and mainly rest with the lodging party and not with the business running the lodgement service, whether that be the mail, a courier, an email system or something else.

[26] While the Fair Work Commission Rules allow applications to the Commission be made through several different mechanisms there comes a point at which certain lodgement modalities simply cannot be sustained. For example, an application posted on the last day of the time period would simply not arrive in time, meaning that an applicant deciding to lodge on the last available day will have to find an alternative lodgement mechanism. An applicant who decides to lodge online at the very last minute runs the risk that either their computer crashes or the Commission’s online lodgement system is unavailable for some reason.

[27] In posting a document through the ordinary mail on Sunday and expecting it to be delivered within three business days is, at best, a stretch. While many might say they would hope their mail is at its destination within that period I suspect most, with a shrug of their shoulders, would concede that in many cases it would not. By 21 March 2021, Mr McGill had thought long and hard about whether he wanted to make an unfair dismissal application. He realised that his dismissal had taken a toll on him. By the same date he also knew that time was of the essence with the lawyer he spoke with impressing upon him there was a need to file the application within 21 days of the date of dismissal taking effect. Trusting a time-limited important document to the ordinary mail with only a few days remaining on the time-limit was a risky proposition. Mr McGill was so close to the deadline that he could and should have considered alternative lodgement means. He had access to those alternatives and could have availed himself of them.

[28] It follows that Mr McGill has not provided the Commission with an acceptable explanation for the delay in making his unfair dismissal application.

[29] Accordingly, my assessment is that consideration of this criterion does not resolve in favour of Mr McGill for the granting of an extension of time for the making of his application.

2. Whether the person first became aware of the dismissal after it had taken effect

[30] Mr McGill was notified of the termination of employment the same day it took effect, Wednesday, 3 March 2021. Correspondence from Downer EDI was sent to Mr McGill the following day confirming his dismissal took effect from 3 March 2021. This is therefore not a circumstance in which Mr McGill only became aware of Downer EDI’s decision after it had taken effect. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[31] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 11

[32] The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time” 12 (underlining added).

[33] Although there was a conversation between Mr McGill and Mr Gilmour on 10 March 2021 in which Mr McGill expressed disappointment in his dismissal and that he may take things further, this does not quite rise to a situation in which the applicant actively contested his termination of employment. There was no intervention on his part by a union or a lawyer; there was no detailed information provided to the Respondent about how its decision was wrong or was based on incomplete or wrong evidence.

[34] Accordingly, this also is a neutral factor in my consideration of whether an extension of time should be granted for the making of the unfair dismissal application.

4. Prejudice to the employer (including prejudice caused by the delay)

[35] The delay in the filing of the application is 13 days.

[36] The Respondent does not point to any prejudice that would arise to it if the Applicant were granted an extension of time for the filing of his application. Nonetheless the Respondent notes that the mere absence prejudice to it is an insufficient basis to grant an extension of time. 13

[37] As a result, consideration of this criterion is also a neutral factor in considering whether there were not exceptional circumstances.

5. The merits of the application

[38] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[39] At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters. 14 Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.15

[40] Mr McGill’s termination of employment occurred after a short investigation conducted by Downer EDI into concerns it held that Mr McGill was inaccurately completing his timesheets with those inaccuracies being falsification on his part. Such evidence as is before me indicates that the nature of Mr McGill’s work was that at least some of the time he would finish work for the day at his home. He would also sometimes work through his meal break and other breaks; arrive home earlier than scheduled and write a later time on his timesheets than the time he actually returned home.

[41] Downer EDI’s finding of serious misconduct on Mr McGill’s part rests on its belief that his actual finishing time did not correlate with the information he put forward about his finishing time. It established this view after taking into account not only the documents completed by Mr McGill but also GPS and other electronic information about the times at which Mr McGill returned home. Mr McGill’s defence in relation to these matters includes him not conceding that the time he arrived home is the time he finished work. Mr McGill argues that he would often work through his lunch and other breaks and that the practice of putting forward timesheets that suggested the breaks had been taken as well as submitting some finishing time later than that which actually occurred was known to and condoned by Downer EDI managers. Mr McGill also argued that even though he might finish at home at a particular time he would then proceed to clean his tools and shower, both of which took some time and were essential given the prevailing COVID conditions and the occupation of his partner, who is a nurse.

[42] In response, Downer EDI reject that it condoned employees working through meal and other breaks as well as rejecting the submission that it condoned or knew about Mr McGill’s practice of putting some different finishing time to that at which it actually took place.

[43] There may be some merit to Mr McGill’s case if the facts are as he alleges. At the least a dismissal in the face of condoned or known practices could well be a disproportionate response if the established conduct is at the lowest levels of misconduct. On the other hand, with the actual transgressions not being known and there being no evidence of substance at this time on the subject of condonation it is also quite possible that the Respondent’s case might be preferred in the event of a full hearing.

[44] It is the case in this matter, as with most extension of time matters, that the uncertainties about each party’s case lead me to find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of Mr McGill’s unfair dismissal application.

6. Fairness as between the person and other persons in a similar position

[45] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 16 It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.17 In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues.18

[46] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr McGill.

[47] As a result, Mr McGill’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr D. McGill for himself.

Mr A. Lynch for the Respondent.

Hearing details:

Melbourne (via video conference);
6 May;
2021.

Printed by authority of the Commonwealth Government Printer

<PR729605>

 1   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].

 3   Exhibit R3, Witness Statement of Tim Gilmour, [11].

 4   Exhibit A1, Applicant’s Outline of Submissions, p.2.

 5   Nulty v Blue Star Group, 2011, 203 IR 1, [13].

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].

 8   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].

 9   Ibid, [40].

 10   Ibid, [41].

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].

 12   Ibid.

 13   Ibid.

 14   Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].

 15   Haining v Deputy President Drake (1998) 87 FCR 248, [250].

 16   Wilson v Woolworths [2010] FWA 2480, [24]‒[29].

 17   Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].

 18   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].