David Stokes v Checkpoint Building Surveyors
[2023] FWC 42
•6 JANUARY 2023
| [2023] FWC 42 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Stokes
v
Checkpoint Building Surveyors
(U2022/11586)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 6 JANUARY 2023 |
Application for an unfair dismissal remedy – extension of time - exceptional circumstances not found – application dismissed
On 6 December 2022, Mr Stokes made an application to the Commission for an unfair dismissal remedy. He contends that he was unfairly dismissed by the Respondent when his employment ended on 14 June 2022.
Section 394(2) of the Fair Work Act 2009 (Cth) (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).
In order for the application to proceed, Mr Stokes requires the Commission grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a hearing on 6 January 2023, at which Mr Stokes gave evidence in support of his application. The Respondent filed submissions opposing an extension of time, which have been taken into consideration.
Extension of time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay,
· whether the person first became aware of the dismissal after it had taken effect,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
Relevant factors
Reason for delay
The Act does not specify what reason for delay might justify 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.[2]
In this case, the application was lodged on 6 December 2022 and the Applicant’s employment ended on 14 June 2022, meaning Mr Stokes’ application was filed 154 days after the 21-day time limit under the Act, ending at midnight on 5 July 2022.
Mr Stokes was notified on 14 June 2022 in person at a meeting with Checkpoint Building Surveyors (CBS) managers that his employment was being terminated, effective immediately.
Mr Stokes’ explanation for the delay in making his application is that he was totally shocked by the dismissal and it took him “time to adjust” as he submits he was not given a reason for his dismissal. He said that he was not aware that he could challenge the dismissal or that there was a 21-day time limit to lodge an unfair dismissal application. He said that in late June, Centrelink suggested he seek legal advice, and some time before 7 October 2022, his doctor suggested he go to the Commission. At the time, Mr Stokes was dealing with other health issues and trying to make sense of what CBS had alleged he had done wrong to justify his dismissal. Mr Stokes provided a letter from Dr Biehl dated 7 October 2022 which states that at the time of his dismissal, Mr Stokes was managing severe bilateral knee osteoarthritis and that in his opinion, Mr Stokes’ attention was focussed on his health and that this was a factor in the delay it took him to seek help regarding his termination.
I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging his application. Whilst I accept that Mr Stokes found the experience of losing his job to be very shocking and unexpected, it is not exceptional for a person to experience this when they are dismissed. It is also not exceptional for a person to be unaware of the 21-day time limit. There is no material before me to demonstrate that Mr Stokes was rendered incapable of lodging an application at an earlier date. The fact Mr Stokes was preoccupied by his knee condition does not explain the entirety of the delay. Dr Biehl’s letter is dated almost 4 months after the dismissal, and I am not satisfied that it establishes that Mr Stokes was unable to complete an unfair dismissal application as a result of his physical health at an earlier date.
Even if I was to accept that he was incapable of making an application prior to 7 October 2022, Mr Stokes’ did not make his application for a further 2 months and no reasonable explanation has been provided for this delay.
Overall, I am not satisfied that Mr Stokes has provided an acceptable explanation for the delay and that is a matter that weighs against granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
Mr Stokes was informed of his dismissal in person on 14 June 2022 at a meeting with the Respondent, which was to take immediate effect. Accordingly, Mr Stokes had the full 21-day period in which to make an application.
Any action taken by the person to dispute the dismissal
Other than making the application, Mr Stokes took no other action to dispute the dismissal. I consider this a neutral consideration in this case.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent asserts that it is disadvantaged by the application being lodged out of time, as it has since replaced the Applicant and is prejudiced by the passage of time and recollection of witnesses. I accept this, and it is a matter that weighs against granting an extension of time.
Merits of the application
At this early stage of the application, where the substantial merits of an application are not fully examined or agitated, it is appropriate that I assess the merits based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
The Applicant’s employment separation certificate indicates that his employment ended because of misconduct and failure to execute duties in a safe manner. Mr Stokes submits he had no knowledge of the reason for his termination and that he has “had no issues at all with anybody”. The Respondent submits that there have been several examples of performance issues since February 2022 which resulted in complaints and performance discussions with the Applicant.
It is not possible without hearing evidence to come to a firm view about the strength of Mr Stokes’ claim that he was unfairly dismissed. On the limited material presently before the Commission, I treat the merits as a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this as a neutral consideration in this case.
Conclusion
The Commission can only grant an extension of time if it is satisfied that there are exceptional circumstances. None of the factors I need to consider weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case. As there are no exceptional circumstances, there is no basis to allow additional time for Mr Stokes to make his application. This means that Mr Stokes is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
D Stokes, Applicant.
Hearing details:
2023.
Melbourne (by video):
January 6.
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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