David Stackpole v JB HiFi Group Pty Ltd

[2020] FWC 6685

[2020] FWC 6685

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Stackpole
v
JB HiFi Group Pty Ltd
(U2020/15120)

DEPUTY PRESIDENT COLMAN MELBOURNE, 11 DECEMBER 2020

Unfair dismissal application filed out of time – application dismissed

[1] This decision concerns an application by Mr David Stackpole for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009(Cth) (Act). Mr Stackpole’s employment with JB HiFi Group Pty Ltd (company) was terminated on 27 August 2020. His application was lodged on 22 November 2020. 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 17 September 2020. Mr Stackpole asks the Commission to grant a further period for the application to be made under s 394(3). The company opposes this request.

[2] On 24 November 2020, I issued directions to the parties to file and serve outlines of argument and statements of evidence concerning the application for an extension of time. The company complied with the directions. Mr Stackpole did not. The application for an extension of time was listed for hearing by telephone on 11 December 2020. The parties were directed to attend and were advised that, in the event a party did not attend, the Commission may proceed to hear and determine the application based on the materials before the Commission. Ms Pei Chen attended the hearing on behalf of the company. Mr Stackpole did not attend the hearing. He has not offered any explanation for his failure to file materials or attend the hearing. I have decided to determine the application based on the material before the Commission.

Extension of time

[3] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances’. This expression was considered in Nulty v Blue Star Group Pty Ltd (Nulty), 1 where the Full Bench stated that, to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a combination of ordinary factors which, although individually of little significance, when taken together can be considered exceptional.

[4] 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.

[5] 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.

Reason for the delay

[6] The Act does not specify what reasons for delay tell in favour of granting an extension however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable’ explanation. Mr Stackpole submitted that, following his dismissal, he was being treated for anxiety and depression, from which he had suffered for years, and that he had lost not only his job but also his marriage, which had left him in a pit of depression and with no motivation. He said that he had been a loyal worker for eight years and that he had lost his job in difficult times caused by the COVID-19 pandemic. He submitted that there were exceptional circumstances warranting an extension of time in his case.

[7] These are difficult circumstances, but I do not consider that they provide an acceptable or reasonable explanation for the delay. Many people suffer mental health challenges. Mr Stackpole did not submit medical evidence or explain how his condition prevented him from lodging his application on time. The F2 application is a simple document requiring little effort to complete and submit. The absence of an acceptable or reasonable explanation for the delay weighs against an extension of time.

Whether the person first became aware of the dismissal

[8] Mr Stackpole was notified of the dismissal on the same day that it took effect and had the full period of 21 days to lodge the application. This is a neutral consideration.

Action taken to dispute the dismissal, prejudice to employer

[9] Mr Stackpole initially protested his innocence and on 9 September 2020 sent his manager a text stating that he would be taking the matter further. This weighs marginally in favour of an extension. In my view, no prejudice would accrue to the company if an extension were granted. To the extent this favours an extension of time, I attribute it little weight.

Merits of the application

[10] Mr Stackpole was found in possession of a powdered white substance at work. At a meeting with his supervisor and Ms Chen on 24 August 2020, Mr Stackpole said that the substance was medicine for anxiety and a vitamin supplement for energy. The company had the substance tested by an accredited drug testing provider. It was identified as amphetamine. Mr Stackpole was advised of the result on 25 August 2020. Ms Chen gave evidence that during a telephone meeting on 27 August 2020, Mr Stackpole apologised for being dishonest and asked for a second chance. After considering his further response, the company dismissed Mr Stackpole with immediate effect. It nevertheless paid him four weeks’ salary. Mr Stackpole contends that under company policy, his conduct warranted only a final warning. He says that he did not use amphetamines, and that he did nothing wrong. The company contends that Mr Stackpole committed serious misconduct by having an illicit substance at work, in breach of the company’s code of conduct and its drug and alcohol policy, and that his dismissal was fair and reasonable. Although it is not possible to make a detailed assessment of the merits, I consider that Mr Stackpole’s case is weak. This tells against an extension of time.

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

[11] Applications to extend time turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Stackpole and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[12] Having regard to the matters that I am required to take into account under s 394(3), and all of the matters raised by Mr Stackpole, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. There is therefore no basis for me to extend time. I decline to grant an extension of time under s 394(3), and the application for an unfair dismissal remedy must therefore be dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance for Mr Stackpole
Ms P Chen for JB HiFi Pty Ltd

Hearing details:

2020
Melbourne (by telephone)
11 December

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 1   [2011] FWAFB 975