Gaetan Allain v PDMCJ Pty Ltd
[2024] FWC 1560
•17 JUNE 2024
| [2024] FWC 1560 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Gaetan Allain
v
PDMCJ Pty Ltd
(C2024/1950)
| COMMISSIONER CRAWFORD | SYDNEY, 17 JUNE 2024 |
General protections dismissal dispute - application filed out of time – no exceptional circumstances – application dismissed.
BACKGROUND
Gaetan Allain has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Allain’s allegations that he was dismissed from his employment with PDMCJ Pty Ltd (PDMCJ) in contravention of Part 3-1 of the FW Act.
Mr Allain commenced employment with PDMCJ on 12 January 2024. PDMCJ provides arborist services using a trading name of French Lumberjack. Mr Allain was dismissed by PDMCJ on 27 February 2024.
Mr Allain filed a Form F8 general protections application on 26 March 2024.
PDMCJ filed a Form F8A employer response on 22 April 2024. PDMCJ has objected to Mr Allain’s general protections application on the ground that the application was filed out of time.
I issued directions for the filing of material in relation to whether I should grant an extension of time and listed the matter for hearing via video on 21 May 2024.
Mr Allain did not file any material in accordance with the directions. Mr Allain did not attend the hearing on 21 May 2024. Misty Kelly attended the hearing on 21 May 2024 on behalf of PDMCJ. Given Mr Allain’s non-attendance at the hearing and failure to file material in accordance with the directions, I indicated to Ms Kelly that I intended to determine the matter in Mr Allain’s absence on the filed material. However, before that process concluded, Mr Allain returned a call from my chambers and indicated he was not aware of the hearing. Mr Allain stated he was at work and unable to join the hearing. Mr Allain had difficulty understanding what a “hearing” means during a phone call with my Associate and requested assistance from a French interpreter in his application.
Given the circumstances, I indicated to Ms Kelly that I thought it was necessary to list a further hearing to give Mr Allain an opportunity to explain why he should be granted an extension of time. That further hearing was listed for 12 June 2024 via video.
Mr Allain represented himself at the hearing on 12 June 2024 with assistance from a French interpreter. Ms Kelly represented PDMCJ.
MATERIAL FILED
Mr Allain
Mr Allain relied on the following material in support of the granting of an extension of time for the filing of his application:
· Mr Allain’s Form F8 application. The application provides the following explanation regarding why it was not made within 21 days of the dismissal taking effect:
“I simply did not know about the Australian legislation for employees. As I am a foreigner on a working holiday visa, I was not familiar with what to do. The last day of work with this employer was 26/02/2024, the employer did not explain to me anything, I received verbal insults and harassment. I did not have a job anymore, from one day to an other after an accident happened cutting a tree, I found myself with no work and pay[1] in my back. In the following days from the accident I was in pain and I couldn’t do anything, like finding an other job, consequently I could not pay rent, therefore I stood at a friend place where I tried to move on. It was just a few days ago that, talking to someone I got to know that I could not get fired the way this employer did and as today I keep feeling pain in my back. Therefore I am convinced this is the right thing to do as what happened impacted my personal life.
Genuinely if I would have known before about what are my rights on the workplace I definitely would have done this application before.”
· An email from Mr Allain to the Commission dated 17 April 2024 which attached evidence that Mr Allain attended a consultation with Dr Seetharami Pateel on 9 April 2024 and subsequently had a CT Thoracic Spine scan on 12 April 2024. The conclusion from the scan was “normal CT of the thoracic spine.”
Mr Allain provided further evidence and oral submissions during the hearing on 12 June 2024.
Mr Allain indicated that he damaged some shrubs while cutting a tree on around 26 February 2024. This led to Mr Allain being told he would be dismissed at the end of the week. Mr Allain injured his back later that day while cutting a tree. Mr Allain was unable to continue working after this accident. Mr Allain returned his work vehicle the next morning and was informed his employment was terminated. Mr Allain confirmed he had not made a workers’ compensation claim in relation to the injury.
PDMCJ
PDMCJ relied on its Form F8A response form in opposing the granting of an extension of time to Mr Allain.
Ms Kelly provided oral submissions at the end of the hearing. Ms Kelly cast doubt upon whether an accident occurred as alleged by Mr Allain. Ms Kelly stated that an incident report was not completed, and no workers’ compensation claim made by Mr Allain. Ms Kelly stated Mr Allain had a work vehicle on the day of the alleged accident and could have used it to attend a doctor's appointment if required.
CONSIDERATION
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW 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.
There is no dispute that Mr Allain filed his application on 26 March 2024.
When did the dismissal take effect?
It is not in dispute, and I find, that Mr Allain’s dismissal took effect on 27 February 2024.
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 27 February 2024. The final day of the 21-day period was therefore 19 March 2024 and ended at midnight on that day. The application was filed seven days late on 26 March 2024.
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 section 366(2) of the FW 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 Mr Allain 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 Mr Allain 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 19 March 2024. The delay is the period commencing immediately after that time until 26 March 2024, 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]
Mr Allain 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 Mr Allain has not provided any reason for any part of the delay.[6]
The reasons Mr Allain has provided for missing the 21-day filing period are:
· Not being aware that he could make an application until he was told by someone he got to know.
· Being incapacitated due to a back injury he suffered at work on around 26 February 2024.
In relation to Mr Allain’s first reason, it is well established that ignorance is not a satisfactory explanation for filing an application late.[7] I accept Mr Allain has limited English skills and is not familiar with the FW Act. However, I do not think these factors are sufficient to justify a finding that his ignorance provides a satisfactory explanation for the delay.
In relation to Mr Allain’s second reason, it is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[8] The evidence filed by Mr Allain concerns two appointments he attended on 9 and 12 April 2024, which is well after he filed the application on 26 March 2024. Further, the CT Thoracic Spine scan did not identify any issues with Mr Allain’s back. I do not consider Mr Allain’s attendance at these appointments on 9 and 12 April 2024 provides a sufficient explanation for the delay in filing between 19 March 2024 and 26 March 2024.
I do not consider Mr Allain has a satisfactory explanation for the delay and I consider this factor weighs against a finding of exceptional circumstances and the granting of an extension of time.
What action was taken to dispute the dismissal?
Mr Allain did not provide any evidence that he took any action to dispute his dismissal prior to filing the application on 26 March 2024. I find this factor weighs marginally against a finding of exceptional circumstances and the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
PDMCJ did not argue it will suffer any significant prejudice if an extension of time is granted for Mr Allain’s application. I consider prejudice to PDMCJ to be a neutral factor.
What are the merits of the application?
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)”.[9]
Mr Allain confirmed during the hearing that the basis for his application is that PDMCJ dismissed him because he suffered an injury at work on 26 February 2024. However, Mr Allain also stated during the hearing that he was told he was being dismissed by PDMCJ at the end of the week prior to the alleged injury occurring, after he damaged some shrubs while cutting a tree. If that is correct, on Mr Allain’s own evidence he had been told he was being dismissed before the injury occurred and hence the injury could not be the reason for his dismissal.
However, it is conceivable that Mr Allain’s injury may have led to him being sacked on 27 February 2024 as opposed to the end of the week on 1 March 2024. If that is correct, Mr Allain may still have an argument that his injury was one of the reasons for his dismissal on 27 February 2024.
In the circumstances, I consider the merits to be a neutral factor.
Fairness as between Mr Allain and other persons in a similar position
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[10] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[11]
Neither party made a persuasive argument that this factor weighs in favour of their respective positions. I consider this to be a neutral factor.
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.[12] 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.[13]
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Mr Allain does not have a satisfactory explanation for why he missed the 21-day filing deadline and he took no other steps to dispute his dismissal. The remaining factors do not weigh in favour of a finding of exceptional circumstances.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances:
Mr Allain representing himself.
Ms Kelly representing PDMCJ.
Hearing details:
2024.
12 June.
Via video.
Printed by authority of the Commonwealth Government Printer
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[1] It appears this is intended to refer to “pain” in the back.
[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] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].
[8] See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)-[2018] FWCFB 1643, [38], [67].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[10] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].
[11] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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