Dominic Urbanowicz v Mithwada Pty Ltd
[2022] FWC 1188
•16 MAY 2022
| [2022] FWC 1188 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dominic Urbanowicz
v
Mithwada Pty Ltd
(C2022/429)
| DEPUTY PRESIDENT CROSS | SYDNEY, 16 MAY 2022 |
Application to deal with contraventions involving dismissal – application filed out of time – circumstances not exceptional – application dismissed.
Mr Dominic Urbanowicz (the Applicant) made an application (the Application) to the Fair Work Commission (the Commission) under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from his employment with Mithwada Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.
The Respondent has objected to the Application on the ground that the Application is out of time.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the 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.
It is a matter of record that the Application was made on 11 January 2022.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 20 December 2021, between 9:00am and 10:00am.[1]
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
As I found above, the dismissal took effect on 20 December 2021. The final day of the 21-day period was therefore 10 January 2022 and ended at midnight on that day. The Application was made on 11 January 2022. The application was made one day late.
The Application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under s 366(2) of the Act, the Commission may allow a further period for a dismissal dispute 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) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3] I set out my consideration of each matter below.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 10 January 2022. The delay is the period commencing immediately after that time until the date the Application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
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.[5]
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 an applicant has not provided any reason for any part of the delay.[6]
Submissions and evidence
The Applicant submitted, in his Form F8 and his Outline of Submissions, that the delay was for the following reasons:
“I contacted the Fair Work Ombudsman yesterday who advised me that the 21 days' time limit commences the day after date of termination (Tuesday, 11th January 2022).
I contacted the Fair Work Commission today and was advised the time limit commences on the day of termination (Monday, 10th January 2022).
I understand that there is immense pressure upon the FWC & FWO and the legal assistance I was offered via FWO referral had a very long waiting list.
Due to the complexity of my unfair dismissal and general protections matters, lack of response from the WA Health Department and their Office of the Chief Health Officer, long wait times on hold to both FWC & FWO and limited legal assistance options available to me, I undertook all of the legal research required to complete this application myself.
I request that the Fair Work Commission kindly provide consideration on the above in accepting my application as being submitted within the timeframe.”
The Applicant was questioned in relation to the above chronology and gave the following evidence:
“So your application is dated 9 January, and so that means, if you're looking at page 5 of the application where you've said, 'I contacted the Fair Work Ombudsman yesterday - - -'?‑‑‑Sorry, one second, I think I may have made an error. That would have been a Sunday, so I would have contacted them on the 10th.”[7]
…
“So after contacting the ombudsman, what did you do to progress your application?‑‑‑I called the Fair Work Commission the next day.
And you called them the next day because?‑‑‑Because I wanted to confirm the Fair Work Ombudsman indicated to me that the application falls on the day that is after the 21st day from the date of termination, so I just wanted to check that with the Fair Work Commission, and they basically advised me to just submit it anyway, and we would get to this stage where we're at now if there was any jurisdictional dispute being raised by you guys as the respondent.”[8]
…
“When you say at page 5, Mr Urbanowicz, 'I contacted the Fair Work Ombudsman yesterday', so that was on 10 January. Is that correct?‑‑‑Yes. And looking at the date of my application, realistically it should have been dated 11 January.
Bear with me. You then submit in the next passage:
“I contacted the Fair Work Commission today and was advised the time limit commences on the day of termination, Monday, 10 January.”
So that contact was made on 11 January?‑‑‑Correct.”[9]
In relation to the reason for the delay, the Respondent submitted that even if the Applicant was led into error by the Fair Work Ombudsman with respect to the incorrect due date for filing, which was doubtful, the Applicant failed to provide any explanation as to why he chose to file the General Protections Application on 11 January 2022.
The Respondent also submitted that the Applicant’s evidence regarding seeking legal advice before filing the Application was inadequate. It was open to the Applicant to explore more than one source of free legal advice in the event that the Applicant’s preferred law firm had a long wait time which would have meant he could not file on time.
It was notable that the Applicant did not plead ignorance of the processes of the Commission. Indeed, his evidence was:[10]
“So you had formed the view that your dismissal was complex; however, you only called the Fair Work Ombudsman three weeks after your dismissal, and you didn't attempt to call them before, did you?‑‑‑No. I'm quite familiar with the Fair Work Ombudsman and Fair Work Commission in terms of claims relating to unfair dismissal, so I could navigate my way through all their online resources; and just from hearing from other people in a similar position with these vaccine mandates for employment kicking in on 30 December, it was probably not going to be very easy to even get through to them via phone.
Have you managed Fair Work Commission claims as an aspect of your role as a claims executive insurance advisor?‑‑‑Correct. I've actually dealt with you previously, Mr Duffy, in one of those claim scenarios when I was employed.”
Conclusion Regarding Delay
It is difficult to understand how a person with such relative familiarity with the processes of the Commission such as the Applicant, either miscalculated the 21-day period, or waited so long before contacting the Commission. I particularly note the Applicant commenced drafting the Application on 7 or 8 January 2022.[11]
Having regard to the above, I am satisfied that the Applicant has not provided an acceptable explanation for all of the period of the delay, and that is a factor that weighs against the Applicant in this matter.
What action was taken by the Applicant to dispute the dismissal?
The Applicant did not take action to dispute his dismissal prior to making the Application. This consideration ordinarily enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application.
In this matter, this consideration takes the less traditional course of applying weight to the failure of the Applicant to foreshadow the Application during his many dealings by email and even in person with representatives of the Respondent. The Applicant entertained his former employer Mr Davis for a considerable period of time on 7 January 2022, without mentioning any pending Application. The Applicant’s evidence was:[12]
“Just one question from me, Mr Urbanowicz. When you met with Mr Davis on 7 January it's correct, is it not, that you didn't mention the possibility of any claim being made?‑‑‑Not directly by me; but, however, when Michael Davis first informed me that his business and the principal organisation would be taking this stance that there needs to be disclosure of private health information and they have to keep mandate vaccine information for each employee, I expressed to him, 'Well, you guys are going to be the ones that are going to cop the flak from this government direction, whether it be, you know, just or lawful or whatever.' He seemed to agree. But there was no direct expression of me to Michael Davis that I would be pursuing an unfair dismissal Fair Work application.
And that what you were saying in relation to your comment, 'you will cop the flak', that occurred prior to the cessation of your employment?‑‑‑I said that generally speaking industries will cop the flak. I did not say that 'your business will cop the flak'.”
In all the circumstances, as the Respondent was unaware of the Application, I do not find that the Applicant took any action to dispute the dismissal, notwithstanding numerous opportunities to do so. I consider this that is a factor that weighs against the Applicant in this matter.
What is the prejudice to the employer (including prejudice caused by the delay)?
In its submissions, the Respondent did not state that any particular prejudice would be caused to it in the event the Commission extended the time for the Application to be made. I consider this factor is a neutral consideration.
What are the merits of the Application?
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter that the Commission is required to take into account in assessing whether there are exceptional circumstances.
Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[13]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. The merits of the Application are a neutral consideration.
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.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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 nor unprecedented, nor even very rare.[14] Exceptional circumstances may 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.[15]
It is clear that the factors that have been accorded any weight in this matter, being the absence of an acceptable reason for the delay and failure to take action to dispute the dismissal, are both factors that weigh in the Respondent’s favour.
Having regard to all of the matters listed at s 366(2) of the Act, I am satisfied that there are not exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. I decline to grant an extension of time under s 366(2). Accordingly, the Application must be dismissed.
DEPUTY PRESIDENT
Appearances:
D Urbanowicz Applicant.
J Duffy for the Respondent.
Hearing details:
2022.
Sydney (by Video):
May 3.
Printed by authority of the Commonwealth Government Printer
<PR741662>
[1] Transcript PN 38.
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Transcript PN 90.
[8] Transcript PN 97 and 98.
[9] Transcript PN 103-106.
[10] Transcript PN 111 and 112.
[11] Transcript PN 121.
[12] Transcript PN 124 and 125.
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[14] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
Printed by authority of the Commonwealth Government Printer
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