Gavin Peter Leigh v Coastal Fire Services Pty Ltd
[2022] FWC 1049
•5 MAY 2022
| [2022] FWC 1049 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gavin Peter Leigh
v
Coastal Fire Services Pty Ltd
(U2022/3482)
| COMMISSIONER MCKINNON | SYDNEY, 5 MAY 2022 |
Application for an unfair dismissal remedy – whether exceptional circumstances – whether additional time should be allowed to make the application.
Mr Gavin Leigh was employed as a Service Technician by Coastal Fire Services Pty Ltd from 31 August 2020 until he was dismissed on 1 March 2022. On 23 March 2022, Mr Leigh applied for an unfair dismissal remedy. Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) requires an application for an unfair dismissal remedy to be made within 21 days after the dismissal took effect, or such further period as the Commission allows. There is no dispute that Mr Leigh’s application is 1 day late.
I have decided not to allow an additional period for Mr Leigh to make his application. These are my reasons.
Extension of time
Under section 394(2), a further period can be allowed to make an unfair dismissal application if I am satisfied that there are exceptional circumstances, taking into account certain legislated matters.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[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.”
The matters that must be taken into account when deciding whether to grant additional time are set out in section 394(3) of the Act. They are:
the reason for the delay
whether the person first became aware of the dismissal after it had taken effect
any action taken by the person to dispute the dismissal
prejudice to the employer (including prejudice caused by the delay)
the merits of the application, and
fairness as between the person and other persons in a similar position.
Relevant factors
Reason for delay: Mr Leigh’s reason for the delay in making the application is that on the day he was dismissed, two large storage buildings next to an investment apartment he owns burnt down. The area was evacuated for two weeks. He spent much of that time making phone calls and attending meetings trying to understand what was happening, what if any damage had been caused to his apartment, whether his tenants were safe and what were the asbestos clean-up processes in the area as well as working with his real estate agent to sell the apartment. As his company vehicle had been taken away, he was only able to travel using public transport. This was a stressful time.
With all this going on, Mr Leigh was not able to manage to seek advice, think clearly or enter paperwork. He made the application as soon as possible. He went to the Commission’s office in Newcastle on 22 March 2022 (the 21st day after dismissal) to put the application in, but the office was closed. Mr Leigh rang the Commission’s number and was told the office was shut. He thought he still had time to make the application because of the time of day that he was dismissed (at approximately 5.00pm).
Whether the person first became aware of the dismissal after it had taken effect: Mr Leigh knew he was dismissed on 1 March 2022 when the dismissal occurred.
Any action taken by the person to dispute the dismissal: Mr Leigh spoke to Craig Pennings, a Director of Coastal Fire Services, on the day after his dismissal. He told Mr Pennings that he would be seeking advice. He then met with a friend to get some advice.
Prejudice to the employer (including prejudice caused by the delay): There is no prejudice to Coastal Fire Services if the application proceeds one day late.
Merits of the application: Mr Leigh was dismissed due to three alleged instances of inappropriate contact with, or advances toward, customers of the business. Mr Leigh says the dismissal was unfair because the bosses set the standard, and one of his bosses (who trained him) had married a client. He also dated a client for a while that the bosses knew about. The first alleged instance of misconduct related to his ex-partner. The second (which triggered dismissal) may have only been notified to Coastal Fire Services on 28 February 2022 but happened 12 months ago, in March 2021. The third incident occurred on 17 November 2021. Mr Leigh was spoken to about the incident by the General Manager. This is when Mr Leigh says the bosses “changed the standard”. He has stuck to what they have asked him to do since then and his conduct has not been repeated. Mr Leigh also says it was unfair that despite receiving notification of the second incident on a Monday, he was allowed to work until the end of Tuesday when he was dismissed while on overtime.
Despite being terminated with immediate effect, Mr Leigh was paid two weeks’ wages in lieu of notice of termination. He has not yet found work and does not have a car or a reference to help him find new employment. He also says he has been underpaid during his employment.
Coastal Fire Services does not oppose the extension of time, but says it complied with the Small Business Fair Dismissal Code in relation to the dismissal. Mr Leigh disputes both that the Code was followed and that it applies to Coastal Fire Services. He says the business is not a small business employer because its contractors are properly characterised as employees.
Fairness as between the person and other persons in a similar position is not a relevant consideration in the case.
Conclusion
There are exceptional circumstances in this case in that Mr Leigh’s investment apartment was in an area evacuated following a building fire that caused potential asbestos contamination. These circumstances affected Mr Leigh, although indirectly. They do not adequately explain the delay in filing the application, occupying his attention as they did for up to two of the three weeks of the 21-day filing period. Selling an investment property is not an exceptional circumstance. In my view, Mr Leigh could have made the application on time – indeed he sought to do so by attending the Commission’s Newcastle premises on the 21st day. Had he made his application online that day, no extension would be required. There is no explanation for why the application was not made until the following day.
On their own, the reasons for delay do not persuade me that an extension of time is warranted. Mr Leigh knew about the dismissal when it took effect and had access to a friend for advice about challenging the dismissal. He foreshadowed this possibility to Coastal Fire Services the day after he was dismissed. There is no prejudice to Coastal Fire Services if the application proceeds, and there is no issue of fairness as between Mr Leigh and any other person in relation to the dismissal.
On the face of the record, the substantive case has merit. Mr Leigh’s conduct that led to dismissal was unprofessional. On two occasions, it was also inappropriate and likely a valid reason for dismissal. However, of the three incidents, one involved a former partner and there was thus a pre-existing relationship between them, separate to their professional relationship. After the second incident, Mr Leigh was warned but not dismissed. The warning caused a change in his behaviour and there has been no further recurrence of the conduct. The third incident occurred approximately 8 months before the warning that caused a change in Mr Leigh’s behaviour. In the circumstances, relying on these three incidents to dismiss Mr Leigh ‘out of the blue’ on 1 March 2022 might indeed be found to be unfair.
This matter is finely balanced as between the reasons for delay and the merits. The other mandatory considerations either do not assist Mr Leigh or do not stand in his way. Ultimately, I have decided not to grant an extension of time to Mr Leigh. The statutory filing period is fixed, including for cases that have merit. While Mr Leigh has a case, he could have made his application on time and did not.
The application is dismissed.
For completeness, the dismissal of this application does not affect Mr Leigh’s ability to seek recovery of wages from Coastal Fire Services under the Act. Advice about underpayment of wages can be sought from the Fair Work Ombudsman.
COMMISSIONER
Appearances:
G Leigh on his own behalf.
J Wilson for the Respondent.
Hearing details:
2022.
Sydney (video):
28 April.
[1] [2011] 203 IR 1 at [13].
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