Gavin Wootten v Department of Justice and Community Safety
[2022] FWC 1464
•14 JUNE 2022
| [2022] FWC 1464 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gavin Wootten
v
Department of Justice and Community Safety
(U2022/5085)
| COMMISSIONER O’NEILL | MELBOURNE, 14 JUNE 2022 |
Application for an unfair dismissal remedy – extension of time.
These are edited reasons of the decision delivered ex tempore and recorded in transcript on 9 June 2022.
On 5 May 2022, Mr Wootten made an application to the Commission for an unfair dismissal remedy. He contends that he was unfairly dismissed by the Respondent when his employment was terminated effective 11 April 2022.
Section 394(2) of the Fair Work Act 2009 (Cth) (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).
In order for the application to proceed, Mr Wootten requires the Commission grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a hearing on 9 June 2022, at which the Applicant gave evidence in support of his application.
Extension of time
Additional time can be allowed under section 394(3) of the Act where there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· 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
The Act does not specify what reason for delay might justify 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.[2]
In this case, the application was lodged on 5 May 2022 and the Applicant’s employment ended on 11 April 2022. Mr Wootten’s application was filed 3 days after the 21 day time limit under the Act, ending at midnight on 2 May 2022.
Mr Wootten’s evidence is that the delay in making his application came about from the culmination of an extended period of what he describes as the ordeal he experienced following the suspension of his employment in July 2021, pending an investigation. He says that his mental health declined from this time, and that the termination of his employment on 11 April 2022 compounded his existing distress. He says that when he received a telephone call that day informing him that his employment had been terminated, he felt completely destroyed, and the realisation that he was facing losing his home and losing his children sunk in very fast. He says that he didn’t eat or sleep for many days after the termination and was severely depressed and anxious. Mr Wootten believes he is suffering from PTSD, although this has not been diagnosed and he reported that he has had great difficulty finding mental health support services. To support his application, Mr Wootten provided a medical certificate. The medical certificate dated 9 May 2022 states that the Applicant is unfit for work or study from 9 May 2022 to 9 August 2022.
Having considered this material, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging his application. I accept that the Applicant was distraught, anxious and highly distressed upon the termination of his employment. However, it is not unusual or exceptional for a person to be highly distressed following the termination of their employment. Whilst the Applicant was concerned that he may lose his home, there was no evidence about this beyond his expression of a fear that this may occur. It is also not exceptional for a person to face serious financial hardship following the termination of their employment.
Further, the Applicant had successfully lodged an unfair dismissal application on 31 January 2022 and had participated in a conciliation conference on 5 April 2022. Following the conciliation conference, the Applicant withdrew his application, as his employment had not been terminated at that time. These events occurred prior to Mr Wootten’s termination, and I have taken them into consideration solely for the purpose of being satisfied that he was familiar with the Commission’s unfair dismissal processes.
Overall, I am not satisfied that Mr Wootten has provided an acceptable explanation for the delay and that is a matter that weighs against a finding that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was informed by telephone and by email on 11 April 2022, that his employment had been terminated. Accordingly, he had the benefit of the full 21 day period in which to make an application.
Any action taken by the person to dispute the dismissal
Other than the making of his unfair dismissal application, no other action was taken to dispute the dismissal. I consider this a neutral consideration in this case.
Prejudice to the employer (including prejudice caused by the delay)
There is no evidence of any particular prejudice to the Respondent. I have treated this as a neutral consideration.
Merits of the application
As to the merits of the application, in cases such as this where the substantial merits of an application are not fully examined or agitated, it is appropriate that I make an assessment based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
The Applicant was dismissed following two investigations into his conduct. The conduct that the Respondent found he had engaged in included: refusing to comply with a lawful direction to remove the words “(W.A.M.) Working Australia Male” from his departmental email signature block; sending a disrespectful and/or offensive email to a colleague and the Secretary of the Department questioning why he was not permitted to maintain his preferred signature block; participating in an interview that was uploaded to YouTube discussing the reasons for his suspension, and publicly commenting on the Department and/or government policy without authorisation.
At this point in time, the Applicant has not detailed the basis upon which he contends his dismissal was unfair. His application form contains the following answer to the question “3.2 Why was the dismissal unfair?”: Letters attached in email. Sexist. Racist. Bullying. Discrimination.” However, I note that the Department Secretary in her letter of termination to the Applicant dated 6 April 2022, deals with some of the Applicant’s responses to the findings of the investigations, including that he asserted that he has been bullied, threatened and discriminated against because he wanted to include “Working Australia Male” on his email signature block and has not been allowed to do this. My review of the material before the Commission at this point in time does not evidence any bullying or discrimination of the Applicant on the basis of sex, race or any other prohibited ground or attribute. I am not able to discern any basis for this allegation from the material presently before the Commission.
In the circumstances, I treat the merits as a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case. As there are no exceptional circumstances, no additional time can be allowed for Mr Wootten to make his application. This means that Mr Wootten is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
G Wootten, Applicant.
E Barrett for the Respondent.
Hearing details:
2020
Melbourne (by video):
June 9.
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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