Graham Mansfield v Wilmar T/A Wilmar Bioethanol

[2021] FWC 2314

[2021] FWC 2314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Graham Mansfield
v
Wilmar T/A Wilmar Bioethanol
(U2021/150)

DEPUTY PRESIDENT ASBURY BRISBANE, 29 APRIL 2021

Application for an unfair dismissal remedy – jurisdictional objection – application filed outside time required in s. 394(2) – Medical evidence – Exceptional circumstances established – Further period to make application granted.

Background

[1] This Decision concerns an application by Mr Graham Mansfield (the Applicant) under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of his dismissal by an entity described in his Form F2 Application for an unfair dismissal remedy as Wilmar T/A Wilmar Bioethanol. The entity that responded to the application by filing a Form F3 Employer response, is Wilmar Australia Pty Ltd. My provisional view is that the Applicant should be granted permission to amend his application to name the correct employer.

[2] The Applicant states that he was advised of his dismissal on 1 December 2020 and that the dismissal took effect on that date. By virtue of s.394(2) of the FW Act, an application under s.394 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). Accordingly, the application was required to be made by midnight on 22 December 2020. The application was made on 7 January 2021, 16 days outside the time required in s.394(2) of the FW Act. It is therefore necessary to determine whether a further period should be allowed under s.394(3) for the application to be made.

[3] In the Form F2 Unfair dismissal application the Applicant stated reasons for the delay including medical grounds and the death of his father-in-law, requiring the Applicant to travel to attend the funeral and to support his wife’s family. The Applicant also asserts that he telephoned the Fair Work Commission (Commission) following his dismissal but was not advised of the online lodgement process or the 21-day timeframe for filing.

[4] On 9 February 2021, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that he provide reasons as to why an extension should be granted having regard to the matters in s.394(2) of the FW Act. The Vice President’s Chambers also requested a completed Form F3 – Employer Response from the Respondent. The Respondent filed its Form F3 – Employer Response on 15 February 2021, raising a jurisdictional objection on the ground that the application was filed outside the 21-day statutory timeframe.

[5] The matter was allocated to me for determination and I issued directions requiring the parties to file any additional material they sought to rely on in relation to whether a further period should be granted. The Respondent corresponded with the Commission indicating that it did not intend to press its objection to the application and did not wish to be heard in relation to whether a further period should be granted to the Applicant to make his application.

[6] The matter was listed for Hearing on 25 March 2021 by telephone. The Applicant appeared on his own behalf at the telephone hearing, and consistent with its advice, the Respondent did not to attend. At that hearing I granted the Applicant a further period in which to file additional material in relation to the medical grounds on which he relies to explain the delay in filing his application.

Approach to deciding whether to grant a further period

[7] The FW Act allows the Commission to grant a further period for a person to make an unfair dismissal application, 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 factor, 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

[8] The requirement that there be exceptional circumstances before time can be extended under s.394(3) of the FW Act contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[9] Section 394(3) requires that, in considering whether to grant a further period to make an unfair dismissal application, the Commission must take 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.

[10] 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 the Application.

Evidence and submissions

[11] In his Form F2 application, the Applicant stated in response to a question as to whether his application had been made within 21 calendar days of his dismissal taking effect:

“I ask that the Commission take into account that my father-in-law passed away in Ipswich on the 29th November 2020. He was buried on the 8th December 2020. My wife and I drove to Ipswich and spent time with my mother-in-law and family during the grieving process and assisting with arrangements for my elderly mother-in-law. We then returned to Ipswich again on the 20th December to be with my mother-in-law. I did not feel capable of completing this application in December. I did call FWC directly after I received my termination letter however was not informed about the online process and I believed I had more time to lodge. When I telephone today I was told I only had 21 days to lodge and could use the online process. I ask that the Commission accept my late lodgment of this form.”

[12] In his out of time response to the Vice President’s correspondence, the Applicant provided as follows:

“I wish to advise that I would like to proceed with my Fair Work application and acknowledge that I have already provide the relevant information regarding late lodgment due to the death of my father in law and the need for my wife and myself to travel to family to assist with funeral arrangements and care for my mother-in-law was the cause of my late application…”

[13] In response to the Directions issued for any further materials he sought to rely on, the Applicant filed a written statement. The Applicant set out a timeline as follows. At the time of his dismissal, the Applicant was absent from work on personal leave covered by a medical certificate. The Applicant had applied to take annual leave and long service leave as his sick leave had been exhausted and he required further medical treatment. The Applicant stated that he was seeing his physician and a psychologist.

[14] On 29 November 2020 the Applicant’s father-in-law passed away at Ipswich Hospital. On 30 November 2020, Mr Carl Morton, Manager for the Respondent, sent an email to the Applicant advising that he had left a voice message on the Applicant’s landline to arrange an on-site meeting to go over his decision regarding the Applicant’s ongoing employment. The meeting was requested to take place on 1 December 2020, and the Applicant stated that he replied to the email confirming he would attend on that date.

[15] The Applicant said that he attended the meeting with his wife as support person. Also in attendance were Ms Caitlin Benson, HR Officer, and Mr Morton. The Applicant stated that Mr Morton “hopped straight into reading…a lengthy termination letter, effective immediately”. He stated that there was no option to discuss his situation, and the Respondent did not “appear interested in any way”. The Applicant was not expecting to be dismissed on 1 December 2020 and had been seeking to discuss taking bereavement leave due to the death of his father-in-law, and also wished to discuss taking his annual leave and long service leave so that he could “get [himself] better”. The Applicant said that instead, he was “greeted with a termination letter”.

[16] The Applicant said that during the termination meeting, he made it clear to Mr Morton that he would be “discussing the termination” with the Commission as he believed it to be unfair. The Applicant also said that in light of the events over the prior five months and in light of his father-in-law’s death, followed by the termination of his employment, he was emotionally drained. Further, the Applicant said that he tried to ring the Commission a couple of times prior to leaving for his father-in-law’s funeral to discuss his dismissal, but that there was no response to his telephone calls.

[17] The Applicant travelled to Ipswich for the funeral on 6 December 2020 to assist with arrangements and returned home on 11 December 2020. The Applicant said that following the funeral he did speak with the Commission “eventually”, and that he was advised to complete an application and told that he had “plenty of time to submit it”. The Applicant said that he was “totally unaware” of the 21-day statutory timeframe.

[18] The Applicant stated that he was called back to Ipswich on 21 December to assist his mother-in-law. He said that he did not get the chance to review the application “as there was a lot going on with [his] family and [he] was struggling with [his] termination of employment”. The Applicant said that he would become “emotionally stressed” when he thought about it and had discussed this with his physician.

[19] The Applicant said that he tried calling the Commission again to gain assistance with his application, but that the Commission was closed for the Christmas period. The Applicant said he again called in early January and was advised at this time of the 21-day timeframe for filing. He confirmed that he was advised a further period may be granted for exceptional circumstances; and accordingly, he filed his application on 7 January 2021.

[20] Further to his submissions regarding medical grounds and commitments around his father-in-law’s funeral, the Applicant seeks that the Commission have regard to the following in determining whether exceptional circumstances exist:

…

•  I was never given any indication that I would be dismissed on the 1^st December 2020 by my employer.

•  I believe there was not a valid reason for my dismissal given the fact that I was a permanent employee of 12 years, still under a medical certificate and also had ample leave I could utilise if needed.

•  I had not been told of the reason for my dismissal until after the decision had been made to dismiss me so I was not able to respond to Management concerns.

•  I believe I have never been given an opportunity to respond to the reason for my dismal before I was dismissed.

•  I had not previously been warned about unsatisfactory performance. I was however called in to talk about safety incidents in June 2020. I was issued with a safety breach at this time. This breach notice, along with other work incidents I raised with my employer led to my breakdown and anxiety attacks.

•  I believe that given the circumstances, my dismissal was harsh and unreasonable which I believe I am eligible to lodge this application.

•  I believe I was dismissed from my employment due to my medical condition (anxiety attacks) which I was still seeking medical treatment for at the time of termination.

•  I had never received a warning about my performance or interactions prior to the safety breach in June 2020.”

[21] On 1 April 2021, the Applicant filed a letter from his general practitioner which stated, in summary, that the Applicant had been seen on 15 October 2020, presenting with “stressing issues relating to loss of employment and perceived bullying at work”. The letter confirmed that the Applicant had been seen on 24 June by another general practitioner who had assessed the Applicant and referred him to a Psychologist at that time. The letter went on to state that the Applicant had suffered mental trauma, for which he had required mental health consultations and been referred to a psychologist.

[22] Further, the letter stated that the Applicant continued to receive “psychological input” and suffered from depression. The General Practitioner also expressed the opinion that these matters could have delayed the Applicant filing the unfair dismissal application following his dismissal on 1 December 2020.

CONSIDERATION

Reason for the delay

[23] The delay required to be considered in s.394(3)(a) is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[24] The FW 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 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. 5 In the present case, the primary reason for the delay advanced by the Applicant is medical grounds including the impact of the death of his father-in-law and associated travel.

[25] In my view, the matters outlined in the Applicant’s evidence, considered together, provide an acceptable explanation for the majority of the delay in making his application. The timing of the Applicant’s dismissal was unfortunate given the proximity of the Applicant being informed of his dismissal to the death of his father-in-law. This was compounded by the need to travel to attend the funeral and to provide support to family members including the Applicant’s wife. I also accept that the Applicant suffered from a diagnosed mental health disorder and that in the opinion of his treating medical practitioner, this could have delayed the Applicant making his application. The acceptable explanation for the delay weighs in favour of the grant of a further period.

Whether the person first became aware of the dismissal after it had taken effect

[26] It is not in dispute that the Applicant became aware of the dismissal on 1 December 2020 and that it took effect on 1 December 2020. The Applicant accordingly had the full 21 day period in which to make his application, a matter which weighs against the grant of a further period, albeit only slightly.

Any action taken by the person to dispute the dismissal

[27] I accept the Applicant’s uncontested evidence that he told the Respondent’s Manager Mr Morton that he believed he had been unfairly dismissed and that he would be discussing the matter with the Commission. This matter weighs in favour of the grant of a further period, albeit only slightly.

Prejudice to the employer (including prejudice caused by the delay)

[28] Other than having to defend the application, there is no evidence that the Respondent is prejudiced by the delay. The period of delay is relatively short and it is not evident that this will cause the Respondent any difficulty in defending the application. This is a neutral consideration.

The merits of the application

[29] As a Full Bench of the Commission observed in Kornicki v Telstra-Network Technology Group: 6

“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.”

[30] After considering the material filed by the parties, I do not consider that the application is without merit. Neither do I consider that the Applicant’s case is so strong that it could be said that it has merit. Accordingly, I am of the view that merit is a neutral consideration in the present case. In reaching this conclusion, I make the following observations.

Fairness as between the person and other persons

[31] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 7 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[32] In the circumstances of this case I do not consider that the grant of a further period will be inconsistent with the outcomes in other matters determined by the Commission.

Conclusion

[33] Having regard to the matters I am required to consider as set out in s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances justifying the grant of a further period to the Applicant in which to make his application. An Order 8 will issue with this Decision extending the time for the application in U2021/150 to be made to 7 January 2021. If no objection is received from the Respondent in relation to the application being amended to name “Wilmar Australia Pty Ltd” as the Respondent within seven days of this decision, a further Order will issue amending the application so that it is made against Wilmar Australia Pty Ltd.

DEPUTY PRESIDENT

Appearances:

The Applicant on his own behalf.

No appearance for the Respondent.

Hearing details:

25 March.

2020.

By telephone.

Printed by authority of the Commonwealth Government Printer

<PR728979>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40].

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 6   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 7   [2016] FWCFB 6963.

 8   PR729031.