Gary William Buckley v Mattben Pty Ltd T/A Freight Lines Group
[2023] FWC 2211
•4 SEPTEMBER 2023
| [2023] FWC 2211 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gary William Buckley
v
Mattben Pty Ltd T/A Freight Lines Group
(U2023/6836)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 4 SEPTEMBER 2023 |
Application for an unfair dismissal remedy
Mr Buckley (the Applicant) applied for an unfair dismissal remedy having been dismissed from Mattben Pty Ltd T/A Freight Lines Group (the Respondent). He lodged his unfair dismissal application with the Commission on 26 July 2023. Whilst the Applicant contends his dismissal took effect on 4 July 2023, the Respondent holds the view that the dismissal took effect on 3 July 2023. Whether the dismissal took effect on 3 July 2023 or 4 July 2023, the application was lodged outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). Consequently, the Respondent has objected to the application on the basis it was filed outside of time. This decision deals with that objection.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.
It is not contested that the Applicant’s application was made out of time. However, for the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.[1]
The issues before me include ascertaining the date the dismissal took effect, in addition to determining whether there are exceptional circumstances and if there are, whether it is fair and equitable for an extension to be granted. Directions issued on 16 August 2023 for the parties to file materials in support of their respective positions concerning the issue of an extension of time. The Applicant did not file materials in compliance with those directions notwithstanding correspondence that reminded him to do so, and accordingly the parties were informed that the Commission would proceed to hearing based on the materials the Applicant had filed as of 28 August 2023.
The Applicant advanced several reasons why I should find that there are exceptional circumstances. Reasons for the delay in making his application included the death of his father-in-law and a family member requiring counselling and support due to suicidal ideation. In short, having weighed those reasons and the period of the delay with the other factors I am obliged to consider, I am persuaded there were exceptional circumstances and it is fair and equitable for an extension to be granted.
Accordingly, the application for an extension of time is granted with the time for making the unfair dismissal application extended to 26 July 2023. The application will now be remitted to the Regional Coordinator for allocation concerning the merits of the application. Parties will be advised shortly of such allocation.
My detailed reasons for the decision follow.
Background
According to the Respondent, the Applicant commenced working for the company on 23 September 2019.
It is apparent from the materials filed that during the last year of his employment with the Respondent, the Applicant had taken a not insubstantial amount of time off work.
According to the Respondent, during the period of 17 May 2022 to 16 May 2023, the Applicant had taken 683.60 hours of leave without pay (LWOP).[2] Further, in addition to the LWOP, the Respondent notes that the Applicant took 14 days of annual leave, 4 days of compassionate leave and 7 days of personal/sick leave.[3] The Respondent calculated that in the period 17 May 2022 until 16 May 2022, the Applicant was absent from his employment for a total of 114 days (866 hours).
In late May 2023, the Applicant attended a meeting with his Manager (Mr Grant Morris) to discuss his attendance.
It appears uncontentious that a Performance Improvement Plan (PIP) was put in place to address attendance issues.[4]
The Applicant and Mr Morris signed the PIP on 25 May 2023, with it scheduled to run for eight weeks, concluding on 14 July 2023.
The PIP set out that the Applicant agreed to a target of better than 90% attendance during the period of the PIP and zero late starts, unless agreed otherwise.[5] According to the Respondent, the Applicant’s agreed start time was 7:00 AM.
The Respondent stated that the day after agreeing and signing off on the PIP, the Applicant arrived at work at 8:00 AM, one hour late for his shift.
According to the Respondent, thereafter the Applicant arrived late to work on sixteen occasions during the period 26 May 2023 and 29 June 2023, the late starts ranging from 30 minutes to 120 minutes.[6]
The Respondent stated that by 30 June 2023, it had not observed an improvement in the Applicant’s reliability, and he was stood down on full pay.[7] A meeting was called on 3 July 2023, and the Applicant was informed that the meeting’s purpose was to discuss his inability to attend work on time as agreed in the PIP.[8]
The Respondent explained that the Applicant was asked why his attendance had not improved and he was said to have offered no plausible explanation.[9] The Respondent stated that whilst it considered the Applicant’s response to the alleged lack of improvement in his attendance, a decision was nevertheless made to terminate the Applicant’s employment immediately.[10]
The Respondent submits that the Applicant walked out of the room and did not offer any response.
For his part, the Applicant conceded that he had not informed the Respondent what was occurring for him in his personal life at the time of the PIP or dismissal, concerning issues with a family member’s suicide attempts and his own ability to cope. The Applicant further stated that he had been placed on a PIP which was due to run until 14 July 2023 and under the PIP he was to be provided with daily and weekly follow-up and support – none of which was forthcoming.[11] The Applicant noted that his answers to the questions asked of him at the disciplinary meeting on 3 July 2023 were heavily influenced by his own mental state.[12] The Applicant further noted that he was regularly required to undertake tasks for which he had received no training.[13]
At hearing, Mr Morris gave evidence that he had personally called the Applicant during the period of the PIP to ascertain his whereabouts when he was late.
Whilst the Respondent considers that the dismissal took effect on 3 July 2023, in his application, the Applicant stated that his dismissal took effect on 4 July 2023.
Extension of the 21-day period
In respect of the date on which the Applicant’s dismissal took effect, I find that the date is 3 July 2023.
It is well-established that a termination of employment takes effect when it has been communicated to the employee. The Respondent argues that this date was 3 July 2023 and the Applicant holds the view that it was 4 July 2023.
In Ayub v NSW Trains (Ayub), the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[14] The Full Bench explained at paragraph [42] of Ayub:
We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…
It is evident that the Applicant was notified of his dismissal at the meeting on 3 July 2023. After that meeting, there were text messages that passed between the Applicant and Mr Morris. Mr Morris, on behalf of the Respondent, sent a text message concerning the Applicant’s entitlement to ‘3 weeks in lieu plus any annual leave entitlements’. The Applicant responded stating, on 3 July 2023:
FairWork insisted that the 3 weeks in lieu + A/L should be applied after the end of July according to the performance plan end date[15]
Mr Morris sent a text message to the Applicant on 4 July 2023 that set out the Applicant’s letter of termination dated 3 July 2023.
Based on the evidence before me, including the evidence of the parties concerning the meeting on 3 July 2023 and the subsequent text messages that followed, I have found that the Applicant had a reasonable opportunity to find out he had been dismissed as at 3 July 2023. It follows that his dismissal took effect on that day.
Consideration now turns to whether to extend the 21-day period within which the Applicant’s unfair dismissal application was to be brought. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[16]
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[17] Whilst it considered the general protections provisions of the Act, the reasoning in Nulty is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.[18]
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[19] 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 can be considered exceptional.[20]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of ‘exceptional circumstances’, stating:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[21]
The reason for the delay
The Commission takes into account whether an applicant has provided a credible reason for the whole of the period in which the application was delayed.[22] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[23] It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.[24]
In Pottenger v Department of Caffeine,[25] the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[26] or a reasonable explanation.[27] It is not the case that the applicant ‘needs to provide’ an acceptable, reasonable or for that matter credible explanation.[28]
The absence of any explanation for any part of the delay will usually weigh against an applicant in such an assessment.[29] Similarly, a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, though it is a question of degree and insight.[30]
In email correspondence to the Chambers of the Vice President dated 13 August 2023, the Applicant outlined that in respect of the cause of the delay he had been dealing with a lot over the last few months. This included dealing with a close family member who had struggled with mental health issues, culminating in the need for suicide intervention strategies, and the death of his father-in-law who had spent his last few months in palliative care. The Applicant stated that both of these issues had taken priority in his life at the time (presumedly from the date of his dismissal until the filing of his application).
Having received the letter of termination on 4 July 2023 by text message from Mr Morris, the Applicant responded to Mr Morris by text message on 4 July 2023, stating the following:
OK, thanks G. I am going to forward with action through FairWork. This will be handed on to WorkSafe also. Sorting out timesheet now.[31]
A further text message was sent by the Applicant on 5 July 2023 to Mr Morris, once the Applicant had forwarded to Mr Morris relevant timesheets. That text message, located at page 126 of the Digital Hearing Book, stated:
2032-07-05 11:32:29
Hey G. This outcome was clearly not what I hoped for and I’m disappointed to be out. That being said, now I’m my priority, the next actions are about doing the best for me. Will I be paid to the end of the performance plan (31/7) plus 3 weeks in lieu? If not, then FairWork can start their action on my behalf.
Mr Morris responded to the Applicant’s enquiry of 5 July 2023 to the effect that the PIP was due to end on 14 July, but that he would check on whether the Applicant would be paid out this period.[32]
On 18 July 2023, the Applicant then texted Mr Morris, explaining that he had four stained shirts to return, which he would return that week, and that he had planned to have done this sooner but for time spent in counselling with a family member who had made three suicide attempts over a period of the last seven months.[33] The text message was acknowledged by Mr Morris on 25 July 2023, who had explained that he had been on annual leave, not to worry about the shirts, and that he was sorry about the Applicant’s circumstances with the family member.[34]
On 25 July 2023, the Applicant sent a text message to Mr Morris, informing him of ‘Dad passing’[35] and on 26 July 2023, the Applicant sent a text message to Mr Morris, advising that his father-in-law had passed away overnight and:
…I’m getting everything sort now. I have just finalised claim with FairWork & now waiting on Worksafe to call back…[36]
The majority of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd (Shaw) expressed that stress, shock, and confusion, in and of themselves, are not exceptional, in the context of the loss of employment.[37] The Full Bench in acknowledged that the loss of employment is a serious event in a person’s life, but the effects of such are unfortunately not unusual.[38] However, compounding the loss of employment in this case, was the Applicant’s circumstances of contending with a family member with mental health issues in addition to death of his father-in-law over the period of 25–26 July 2023. Whilst the Applicant did not supplement his contentions regarding the mental health of the family member or that of his father-in-law with medical certificates, the Respondent’s materials included text messages sent by the Applicant to Mr Morris, which were unchallenged and contemporaneous with the aforementioned unfolding events in the Applicant’s life.
I have considered the evidence that the Applicant had clearly contemplated taking action to contest his dismissal as early as 4 July 2023, where he referred to ‘…I am going forward with action through FairWork’ and on 5 July 2023, where he asked Mr Morris, ‘[w]ill I be paid to the end of the performance plan (31/7) plus 3 weeks in lieu? If not, then FairWork can start their action on my behalf.’ The Applicant, had, in addition, communicated with the Respondent on 18 July 2023 about stained shirts albeit the Applicant’s text message also disclosed serious mental health issues of a family member.
On an objective basis, it appears that the Applicant did not prioritise the making of the unfair dismissal application after his dismissal, and, in addition, was able to perform activities such as communicating with Mr Morris about whether he was to be paid accrued entitlements or whether he was to return stained shirts. However, it is also apparent, from the evidence filed that the Applicant’s father-in-law passed away over the period of 25–26 July 2023, that is the period of the delay, and that the Applicant immediately addressed the filing of the application once his father-in-law had passed on 26 July 2023.
I have considered the delay as the period beyond the 21-day period, but have, in addition, considered the reasons for that delay by reference to the circumstances from the date the dismissal took effect. On balance, I am satisfied that the Applicant has made out an acceptable or reasonable explanation for the two-day delay in lodging his unfair dismissal application. This weighs towards a finding of there having been exceptional circumstances.
Whether the Applicant became aware of the dismissal after it took effect
At all material times from 3 July 2023 until the date the unfair dismissal application was made, the Applicant knew that he had been dismissed – he conceded as much. Therefore, this is not a factor that weighs in favour of finding the circumstances were exceptional.
Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[39] The Applicant enquired whether he would be paid for the remainder of the period of the PIP and his entitlements, in addition to placing the Respondent on notice that he intended go forward with action through ‘FairWork’ on two occasions post his dismissal. Having twice communicated to the Respondent that he intended to pursue the matter in the Commission, I am satisfied that in these circumstances such communication constituted action to dispute his dismissal during the statutory timeframe notwithstanding his reference to being paid certain entitlements. I consider this finding weighs in favour of there having been exceptional circumstances.
Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted. The absence of prejudice, however, is not itself a factor that would warrant the grant of extension of time. I therefore consider this to be a neutral factor in the present case.
Merits of the application
The nature of the matter is such that consideration must be given to whether the application was made within the period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.
In Telstra-Network Technology Group v Kornicki,[40] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:
If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[41]
Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[42] The factual contentions and the merits of the application more generally would need to be scrutinised in this case, including under cross-examination, if an extension of time was granted and the matter proceeded.
In light of the materials filed by the parties to date, I consider this criterion to be neutral. I note however that the Respondent appears to have endeavoured with its employment relationship with the Applicant, notwithstanding the Applicant’s tardiness and absenteeism over an extended period.
Fairness between the person and other persons in a similar position
In Morphett v Pearcedale Egg Farm,[43] the Deputy President considered this criterion and said:
…cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[44]
My attention has not been drawn to other persons in a position similar to that of the Applicant. I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is not a relevant consideration in this matter and is therefore a neutral factor in determining whether to grant an extension of time.
Conclusion
Having considered the matters referred to in paragraphs [33]–[54] above, I am, on balance, satisfied that there are exceptional circumstances that warrant extending the time for the Applicant to make his unfair dismissal application.
There is satisfactory explanation for the delay in making the application and in respect of the totality of the evidence, it is sufficient to ground a finding that the Applicant’s circumstances were out of the ordinary course, unusual, special, or uncommon. Furthermore, I consider that it would be fair and equitable to grant an extension. The time for making the unfair dismissal application is therefore extended to 26 July 2023.
DEPUTY PRESIDENT
Appearances:
G Buckley, Applicant
P Doherty for the Respondent
Hearing details:
2023.
Perth (by telephone):
31 August.
[1] Fair Work Act 2009 (Cth) s 394(3).
[2] Form F3 Employer response to unfair dismissal application, question 3.1(2).
[3] Ibid question 3.1(3).
[4] Ibid question 3.1(6).
[5] Ibid annexure A.
[6] Ibid.
[7] Ibid question 3.1(14).
[8] Ibid question 3.1(15).
[9] Ibid question 3.1(18).
[10] Ibid question 3.1(21).
[11] Form F2 Unfair dismissal application.
[12] Ibid.
[13] Ibid.
[14] (2016) 262 IR 60, 79 [48].
[15] Digital Hearing Book, 124 (DHB).
[16] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [21].
[17] (2011) 203 IR 1, 6 [15] (Nulty).
[18] Ibid.
[19] Ibid 5 [13].
[20] Ibid.
[21] (2018) 273 IR 156, 165 [38] (Stogiannidis).
[22] Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 409 [18].
[23] Henderson v Hoban Recruitment Pty Ltd[2016] FWC 5041, [10].
[24] Shaw v Australia & New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12] (Shaw); Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society (2016) 258 IR 110, 116 [29]–[31].
[25] [2018] FWC 3403.
[26] Ibid [31], citing Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[27] Ibid, citing Roberts v Greystanes Disability Services[2018] FWC 64, [16].
[28] Stogiannidis (n 21) 165–6 [40].
[29] Ibid 165 [39].
[30] Ibid.
[31] DHB (n 15) 125.
[32] Ibid 126.
[33] Ibid 126–7.
[34] Ibid 127.
[35] Ibid.
[36] Ibid.
[37] Shaw (n 24) 366 [15].
[38] Ibid.
[39] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300.
[40] (1997) 140 IR 1.
[41] Ibid 11.
[42] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Guidice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [38].
[43] [2015] FWC 8885.
[44] Ibid [29].
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