Dr Matueny Marial Luke Kerding v Tgi Manufacturing Pty Ltd
[2022] FWC 429
| [2022] FWC 429 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dr Matueny Marial Luke Kerding
v
Tgi Manufacturing Pty Ltd
(U2022/1055)
| COMMISSIONER CIRKOVIC | MELBOURNE, 28 FEBRUARY 2022 |
Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.
Dr Matueny Marial Luke Kerding, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with TGI Manufacturing Pty Ltd, whom I will refer to as the Respondent.
Before granting a remedy, the Commission must be satisfied that the application was not made out of time.
Having heard the parties, I now proceed to give these reasons for my decision ex tempore.
This published decision reflects the decision I gave ex tempore on 28 February 2022 with corrections for grammatical, syntactical and any other insignificant errors.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
There is some contest between the parties as to the effective date of dismissal. The parties agree that the Applicant was informed on 20 December 2021 at a meeting at the workplace that he would no longer be offered work by the Respondent. Following the meeting the Respondent sent email correspondence to the Applicant dated 22 December 2021 confirming that the Respondent was unable to offer the Applicant work from 24 December 2021. On the material before me, I am satisfied that the effective date of dismissal was 24 December 2021. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect, rather some 31 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.
The Commission may exercise its discretion to 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 the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:
(a) the reason for the delay;
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the 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 18 January 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 24 January 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.
As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, 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.
As the Full Bench went on to say at paragraph 40, 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.
The Applicant submitted that the delay was for the following reasons:
· Side-effects from the COVID-19 vaccination
· Shock and stress relating to his termination.
In relation to the reason for the delay, the Respondent submitted that the Applicant had “ample time” to lodge his unfair dismissal application.
Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect
There is no contest the Applicant became aware of his dismissal in a meeting at the workplace with the Respondent on 20 December 2021.
Having made a finding that the Applicant was notified of the dismissal on 20 December 2021 and that it took effect on 24 December 2021, I find that the Applicant had the benefit of the full period of 21 days to lodge the unfair dismissal application.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
I have considered the detailed material before me as to the circumstances surrounding the Applicant’s termination. I note that the Applicant refers in his statement of evidence that he attended the workplace on 24 January 2022. The Applicant states that he attended the workplace to see if other staff members had been dismissed by Paul and to pick up hard copies of letters as previously advised.
In all the circumstances, I find the Applicant took some action to dispute the dismissal.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
The Applicant makes no submission in relation to this criterion. The Respondent indicated that the delay has “caused undue stress” and that the allegations made by the Applicant are “very upsetting”. I also note the Respondent’s submission that the claims raised by the Applicant involve persons not currently working for the Respondent. On balance, I find that if an extension of time were to be granted, any prejudice to the employer would be minor.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the parties are in dispute as to the fairness of the Applicant’s termination. The Respondent submits that as a small business, it was unable to retain the Applicant as a sub-contractor for financial reasons. The Applicant makes varying allegations involving bullying and racism at the workplace and disputes the legal status of his relationship with the Respondent. The merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, 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 an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any probative 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.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings
As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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 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.
I am not satisfied that the Applicant has established an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application, or that the matters to which he refers are exceptional. The Applicant indicates that on 11 January 2022 he went to have his second COVID-19 vaccination and that he suffered significant side effects as a result. He also states that he suffered side effects from the first COVID vaccine administered on 21 December 2021 but that his doctor advised him to take the second vaccine. He states that he was admitted to hospital on 18 January 2022 and that his medical condition was the reason for his failure to lodge his application within the 21-day statutory timeframe. I note that the Applicant provided the Commission with four medical certificates, two of which were dated 12 October and 25 October 2021, and pre-date the termination. A further certificate has been provided by the Royal Melbourne Hospital dated 18 January 2022 confirming that the Applicant attended the emergency department that day and “and is suffering from a medical condition and is absent from School/university for 17 January to 23 January inclusive”.
A further medical certificate was provided dated 2 February 2022, from the Kew Junction medical clinic stating that the Applicant “has a medical condition and will be unfit for work/study from 2 February 2022 to 15 February 2022 inclusive”. I note the 2 February 2022 post-dates the filing of the unfair dismissal application on 24 January 2022.
At the hearing, the Applicant stated that between 24 December 2021 and 11 January 2022, when the Applicant attended for his second COVID-19 vaccination, he was suffering from side effects from his first COVID-19 vaccination which he received on 21 December 2021 and the shock and distress of having been terminated. He states that he was unable to write anything and attend to work or study. In response to a question regarding when he became aware of the 21-day time limit for the filing of the application, the Applicant states that he accessed the Fair Work Commission website on the 11 January 2022 and became aware on that day as to the strict statutory time limit. I note that had the Applicant filed his application on 11 January 2022, it would have been lodged within the statutory time limit. I have also had regard to the Applicant’s evidence that he is currently completing a PHD in international law at Victoria University and that he resides with a family member, who is a kindergarten teacher, who is computer competent.
The Applicant has filed various medical records that support his claims of problems and suffering, and I accept this to be true.
The Applicant did not provide any further information as to why his medical condition limited his ability to file his application within the statutory time limit. The Applicant’s evidence as to his admission to hospital is that he was discharged on the same day he was admitted on 18 January 2022. A medical certificate alone is not evidence that the Applicant was unable to complete and lodge his application on time due to a medical condition. The existence of a medical condition is not evidence that the condition caused the non-compliance with the statutory timeframe. Some relationship between the condition and the failure to comply is necessary. In this case there is insufficient material before me as to the impact of this medical condition on the Applicant’s failure to lodge within the statutory timeframe.
The Applicant concedes that he accessed the Fair Work Commission website on 11 January 2022 and was aware of the strict 21-day time limit for the filing of an unfair dismissal application on and from that day. I note that had he lodged the Application on that day it would have been in time. Information on lodging unfair dismissal applications, including the 21-day requirement, is available on the Commission’s website. Whilst I accept the Applicant was unwell around the time of his dismissal and afterwards, I am not satisfied that his illness prevented him lodging his unfair dismissal application, a process which involves completion of a very simple form in any one of a variety of very simple ways.
There is nothing exceptional in the circumstances outlined above. The Applicant was aware of the time within which he had to make his application. I am not satisfied that the circumstances can be considered exceptional. I have found that the Applicant has not established an acceptable or reasonable reason for the delay in lodging his application. Although I have found he took some steps to dispute the dismissal, neither this factor alone, nor in combination with the Applicant’s other arguments – at their highest – provide a basis upon which I could conclude that exceptional circumstances exist such that an extension of time should be granted.
I have considered the Applicant’s personal circumstances as provided in the materials and in oral evidence at the hearing.
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.[1]
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed.
COMMISSIONER
Appearances:
Dr Luke Kerding (the Applicant)
Mr Paul Bastin (for the Respondent)
Mrs Toni Bastin (for the Respondent)
Hearing details:
10:00AM AEDT, Monday, 28 February 2022 via Microsoft Teams
[1] Lidia Li v Slim Form Australia Pty Ltd[2021] FWC 619, [20].
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