Fayia David Bundoo v Lighthouse Disability Ltd
[2023] FWC 385
•17 FEBRUARY 2023
| [2023] FWC 385 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Fayia David Bundoo
v
Lighthouse Disability Ltd
(U2023/197)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 17 FEBRUARY 2023 |
Application for an unfair dismissal remedy – extension of time – discretionary considerations – no exceptional circumstances – application dismissed
On 6 January 2023 Fayia David Bundoo (Mr Bundoo or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to a termination of employment by Lighthouse Disability Ltd (Lighthouse or the employer) which took effect on 30 November 2022.
Mr Bundoo’s application was made thirty-seven days after the alleged dismissal took effect, being sixteen days beyond the twenty-one day statutory time-limit. For the application to proceed it requires an extension of time. Mr Bundoo seeks that extension.
This decision deals with whether an extension should be granted.
I issued directions on 24 January 2023.
Materials were filed by Mr Bundoo and by Lighthouse.
I conducted a hearing by video on 15 February 2023.
Mr Bundoo gave evidence as did Ms Lea Smart, General Manager Client Services, Lighthouse. Both parties made oral submissions.
Following the hearing I reserved my decision.
Facts
I make the following findings.
Lighthouse operates in the disability care industry.
Mr Bundoo commenced employment as a support worker on 19 May 2020.
In 2022, Mr Bundoo became involved in certain matters before the Federal Circuit and Family Court of Australia (Family Court).
In the period prior to dismissal, Mr Bundoo took exception to Lighthouse deducting child support payments from his salary. He considered that Lighthouse had no obligation to do so. Mr Bundoo declined to work rostered shifts if child support payments were to continue to be deducted. Lighthouse believed that it had a lawful obligation to make the deductions.
On 30 November 2022 Lighthouse summarily dismissed Mr Bundoo for not working required shifts.
On 6 January 2023 Mr Bundoo electronically sent an unfair dismissal application to the Commission, dated 30 December 2022.
The application stated (answer to question 1.6) that it was lodged within the 21-day time period. However in his covering email Mr Bundoo stated:
“I do have to apologise for the 21 days out of time period, due to Christmas holidays.”
According to Commission records, Mr Bundoo made payment of the $77.80 filing fee on 10 January 2023.
The employer filed a response on 17 January 2023.
Submissions
Mr Bundoo seeks an extension of time. He says that the circumstances were exceptional.
He relies on three reasons for the delay:
· Christmas;
· Financial cost of the filing fee; and
· Stress arising from the Family Court proceedings.
The first of these explanations was stated at the time of filing. The second and third of these explanations was stated in Mr Bundoo’s written submission to this hearing.
In response, Lighthouse contend that none of the reasons advanced constitute exceptional circumstances and that Mr Bundoo’s prospects in this litigation are poor.
Consideration
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
Being sixteen days out of time, Mr Bundoo’s application can only proceed if he establishes that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[1]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[2] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[3]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[4]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[5]
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[6] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[7]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[8] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[9]
I now deal with each of the reasons advanced by Mr Bundoo.
Christmas
Christmas is a time of festive reflection and joy for many in the community. However neither life nor the operation of law stops on account of Christmas. The Christmas season is accompanied by a number of public holidays. Four fell between the date Mr Bundoo’s employment ceased and the filing of the application (25 December 2022, 26 December 2022, 27 December 2022 and 1 January 2023).
The Christmas season is annual and all related public holidays were known and predictable.
In any event, Mr Bundoo’s obligation to file within 21-days of his dismissal was an obligation to file by 21 December 2022, some four days before Christmas Day. He was already out of time by the time Christmas arrived.
Neither the festivity of the Christmas season nor the related public holidays present a reasonable explanation for the delay.
Cost of filing fee
The current filing fee for an unfair dismissal application is $77.80. This was paid by Mr Bundoo on 10 January 2023.
Whilst recognising Mr Bundoo’s general evidence that he was financially constrained, it is not established that Mr Bundoo could not have funded this filing fee within the statutory 21-days or prior to the late lodgement.
I do not find that this was the reason for Mr Bundoo not filing the claim within this period. Mr Bundoo’s application makes no reference to that explanation and his covering email on 6 January 2023 advanced a different reason (Christmas).
In any event, the Commission and the underpinning regulations to the FW Act provide an avenue for a dismissed employee suffering financial hardship to seek a fee waiver. The covering page to the application form completed by Mr Bundoo states:
“If payment of the fee will cause you financial hardship, you can apply to have the fee waived. You must apply to have the fee waived at the same time as you lodge your application. Download the waiver form from the Commission’s website.”
Mr Bundoo had access to that advice. His application form sent to the Commission on 6 January 2023 included this coversheet.
The right of a dismissed employee to apply for a fee waiver existed throughout the entire period following Mr Bundoo’s dismissal up to and including the delay period. It was not a recent invention.
Mr Bundoo made no such request. Had he done so his unfair dismissal application would have been received once sent, and his request for a fee waiver would have been determined on its merits.
That Mr Bundoo may have felt financially constrained in being required to make payment of the filing fee is no reasonable explanation for the delay.
Stress arising from Family Court proceedings
It appears from Mr Bundoo’s evidence that Family Court proceedings were on-foot at the time of his dismissal and remained on-foot in the period following.
Whilst the existence of those proceedings was likely a cause of stress to Mr Bundoo and to some degree a distraction, there is no evidence that anything particular or unusual associated with those proceedings arose during the delay period or in the period immediately preceding so as to explain the delay. The reason for Mr Bundoo’s dismissal concerned his objection to child support payment deductions. Any continuing dispute over that issue was known and predictable in the period following dismissal.
It is well established that stress and anxiety in a period following dismissal is not uncommon,[10] and that involvement in family court proceedings does not, of itself, constitute exceptional circumstances.[11]
That Mr Bundoo was also dealing with litigation in the Family Court is no reasonable explanation for the delay.
One further issue arises. In this matter it appears that Mr Bundoo’s unfair dismissal application was completed and signed on 30 December 2022 (nine days late) but not filed until a week later (making it sixteen days late). Mr Bundoo was asked at the hearing to explain this further delay. Mr Bundoo’s evidence was that he was unsure how to file a claim and was stressed in that week. These explanations do not constitute acceptable reasons for the delay. The covering page to the application form made clear the methods for filing. Mr Bundoo said he did not read the covering instructions. If that is so, that was Mr Bundoo’s oversight.
The explanations for the delay neither individually nor collectively weigh in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
Mr Bundoo was aware on 30 November 2022 that his employment ended that day.
That Mr Bundoo was well aware of his employment ending and of the reason makes this a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
Other than filing this late unfair dismissal application, Mr Bundoo took no action after being dismissed to alert his employer of his intention to take the matter further. However, Lighthouse was well aware of Mr Bundoo’s difference of view about child support payments being deducted and in that sense a subsequent legal claim ought not have taken the employer by surprise.
This is a neutral consideration.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[12]
There is no material prejudice to Lighthouse and none is asserted.
A claim would have to be responded to, involving time and cost. However, that prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[13]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing on merit would concern whether Mr Bundoo failed to work required shifts and, if so, whether his reason for not doing so was fair and consistent with his employment obligations.
In the event that Lighthouse is able to establish that deducting child support payments from an employee’s salary is required by law and not a discretionary matter that can be set aside by contrary representations by an employee, Mr Bundoo’s case would be in peril.
Whilst not having received submissions or evidence on such matters, a provisional consideration of the merits weighs somewhat against extending time.
Fairness between persons in similar position (s 394(f))
It is not submitted that the application for an extension of time gives rise to issues of fairness between Mr Bundoo and persons in similar positions.
This is not a relevant factor.
Conclusion
The period of delay being sixteen days is considerable in the context of a 21-day statutory time period.
The FW Act requires the circumstances to have been exceptional in order for an extension to be granted.
None of the explanations for delay weigh in favour of such a finding, either individually or collectively. No other factors weigh in favour.
I am therefore unable to conclude that the circumstances giving rise to the late filing were exceptional.
There being no exceptional circumstances, the time for lodging the application cannot be extended.
As Mr Bundoo’s application is out of time, it is unable to proceed. Application U2023/197 is dismissed. An order[14] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr F D Bundoo, on his own behalf
Ms M L Hii, with permission, with Mr A Ellis and Ms L Smart, on behalf of Lighthouse Disability Ltd
Hearing details:
2023
Adelaide (by video)
15 February
[1] Smith v Canning Division of General Practice[2009] AIRC 959
[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[3] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[4] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[5] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[6] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[8] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[9] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[10] Coruna v BHP Billiton Iron Ore Pty Ltd[2016] FWC 5239; Reeve v Ramsay Health Care Limited[2011] FWA 5349
[11] Kim Joy Samsa v Belladia Pty Ltd t/as Wizard Pharmacy Joondalup Drive[2022] FWC 46; Rose v BMD Constructions Pty Ltd[2011] FWA 673 at [10]
[12] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[14] PR750643
Printed by authority of the Commonwealth Government Printer
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