Garth Morrison v National Archives of Australia
[2023] FWC 2447
•22 SEPTEMBER 2023
| [2023] FWC 2447 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Garth Morrison
v
National Archives of Australia
(U2023/7310)
| DEPUTY PRESIDENT DEAN | CANBERRA, 22 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Mr Garth Morrison (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his employment with National Archives of Australia (the Respondent).
The Applicant had been employed in the position of Legal and Policy Coordination Manager with the Respondent. It is not in dispute that the Applicant resigned and ceased employment with the Respondent on 28 November 2022. His unfair dismissal application was lodged on 8 August 2023.
Section 394(2) of the 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). The Applicant filed his application some 232 days outside the 21 day period and can only proceed if the Commission grants a further period for the application to be made.
The matter was listed for hearing by telephone on 21 September 2023. The Applicant appeared and gave evidence on his own behalf. The Respondent was represented by Mr Craig Rawson of Australian Government Solicitor and called evidence from Ms Phoebe Morrison, Director, Corporate Governance and Risk Section, of the Respondent.
For the reasons set out below, I find there are no exceptional circumstances.
Extension of time
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[1] 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.[2]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person 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 person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.
Consideration
Reason for the delay
The Act does not specify what reason for the delay might tell in favour of 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.[3]
The Applicant said the primary reason for the delay in lodging his application was that he was the subject of harassment and bullying while employed and as a result he felt unsafe. He said he resigned as a result and the feeling of being unsafe had taken some time to go away.
He also said that he was wating for his workers compensation claim to be finalised and was waiting to receive responses to the multiple freedom of information (FOI) requests he had made.
The Respondent provided detailed submissions outlining why it said that none of these matters are exceptional.
Having considered all of the circumstances, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application.
To the extent the Applicant was suggesting that his feeling of being unsafe was a mental injury that may have prevented him from making his application within time, there was no medical evidence to support this.
The Applicant was able to make 12 FOI requests over a period from January to May 2023. None of the material filed obtained as part of the FOI requests was necessary for the filing of this application, which is a straightforward form, particularly for someone who was engaged in a legal role.
Further, the workers compensation claim does not explain a delay of some 232 days.
This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant resigned, effective 28 November 2022, which he suggests was a forced resignation because of conduct of the Respondent. He was afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute the cessation of his employment until the present application was lodged. I do not accept that his requests for mediation are action taken to dispute the cessation of his employment.
This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The delay is lengthy. However, in the absence of any specific evidence as to what prejudice the Respondent may suffer, I consider this to be a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.
The Applicant’s resignation will be a hurdle for him to overcome in demonstrating he was unfairly dismissed.
On the limited evidence before me, it is unlikely the Applicant’s prospects of success are high. This weighs against a finding that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and this is a high hurdle.
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
G Morrison on his own behalf.
C Rawson for National Archives of Australia.
Hearing details:
2023.
By telephone:
September 21.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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