Guy Teede v Epiroc Australia Pty Ltd
[2024] FWC 3172
•18 NOVEMBER 2024
| [2024] FWC 3172 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Guy Teede
v
Epiroc Australia Pty Ltd
(C2024/6823)
| COMMISSIONER MCKINNON | SYDNEY, 18 NOVEMBER 2024 |
Application to deal with a general protections dismissal dispute – late application – whether extension of time should be allowed
Mr Guy Teede was employed as an Auto Electrician by Epiroc Australia Pty Ltd (Epiroc) from 6 February 2024 until 29 July 2024. Prior to his employment with Epiroc, he was employed by a labour hire provider to provide services to Epiroc. On 24 September 2024, Mr Teede applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). Mr Teede alleges that he was dismissed by Epiroc in contravention of the general protections because he was told at the termination meeting that previous discussions had been had with him which he denies, and because Epiroc has refused to provide him with payslips despite multiple requests. Epiroc objects to the application on the basis that the application is filed out of time.
This decision is about whether additional time can and should be allowed for the application to be made. For the reasons that follow, I am satisfied that there are some exceptional circumstances of relevance to the late filing, but decline to exercise my discretion to allow additional time for the application to be made. The application will instead be dismissed.
Consideration
Ordinarily, applications under s.365 of the Act must be filed within 21 days of dismissal. The Commission can extend this timeframe if there are exceptional circumstances (s.366(1)(b)) after taking into account the following matters set out in s.366(2):
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Reason for delay: Although Mr Teede did not know it, a 21 day filing period applies both to applications for an unfair dismissal remedy and applications to deal with a general protections dispute involving dismissal. Mr Teede filed his unfair dismissal application on 20 August 2024, which was 1 day after the end of the 21 day filing period. He filed this application 36 days late.
The reasons given for delay in filing the application are that Mr Teede was waiting for information from Epiroc about conversations it had relied upon to dismiss him. When the information did not come through, he filed the unfair dismissal application. On 26 August 2024, registry staff of the Commission informed Mr Teede that he may not be eligible for an unfair dismissal remedy due to not having completed the minimum employment period. The Commission provided Mr Teede with information about general protections applications involving dismissal and the Workplace Advice Service.
Mr Teede was asked to confirm whether he wished to continue with the unfair dismissal application by 9 September 2024. Mr Teede did not meet this request from the Commission. On 17 September 2024, the Commission again contacted Mr Teede about his application. Mr Teede advised that he wanted to continue with his unfair dismissal application but that he was also considering a general protections application. Mr Teede was asked to confirm his position by 20 September 2024. Again, Mr Teede did not meet this timeframe. Instead, on 24 September 2024 he filed this application and discontinued the unfair dismissal application over the telephone approximately 20 minutes later.
Since approximately two months before the dismissal, Mr Teede has been supporting his wife who is undergoing cancer treatment. This can require day travel to medical clinics from Brookton where he lives, which is about 2 hours from Perth, and home. Reading the evidence beneficially in favour of Mr Teede, in the 21-day period after dismissal (from 30 July 2024 to 19 August 2024) this occupied 3 days of his time. There were a further 6 medical appointments between 20 August 2024 and 24 September 2024 (when this application was made) and likely additional days of travel in connection with a period of radiation therapy from 12 September 2024. That is, 3 of the 21 days are explained by this circumstance, and at least 6 days (but likely more) account for part of the subsequent delay prior to filing.
Action to dispute the dismissal: After dismissal, Mr Teede had a couple of conversations with the Site Manager, Jeremy Birrell and with his manager, Tom Lindfield, in which he asked for his position back. In subsequent correspondence with Epiroc’s human resources staff, Mr Teede alleged that he had been sexually harassed by his manager, sought copies of his payslips and queried the rate of pay used to calculate his final pay. He did not dispute the dismissal itself in correspondence with human resources. Otherwise, the only action taken to dispute the dismissal was filing the unfair dismissal application and then this application.
Prejudice to the employer: There is no apparent or asserted prejudice to Epiroc if additional time is allowed for the application to be made.
Merits: On the face of the record, the merits of the application are not strong. There does not appear to be any allegation of conduct that might constitute unlawful adverse action. The two primary complaints made by Mr Teede are that Epiroc was wrong to assert previous discussions with him about the issue that ultimately led to his dismissal, and that it did not provide him with payslips despite his repeated requests. The first complaint might go to the fairness or otherwise of the dismissal, but a denial of procedural fairness is unlikely to constitute unlawful adverse action on its own. The second complaint relates to conduct in the period after the dismissal had taken effect and is thus unlikely to have formed part of the reasons for dismissal.
Finally, Mr Teede submits that he was poorly treated by another manager of the business during his employment; that dismissal caused loss of income and significant financial stress coinciding with a time of increased medical expenses; and that he has faced challenges finding another job. These are matters of relevance to an unfair dismissal application but except in relation to remedy, are of limited relevance to a general protections case.
Fairness as between Mr Teede and another person in a like position is not a relevant consideration in this case.
Conclusion
I find that there are exceptional circumstances in this case relating to the support Mr Teede was providing to his wife for her cancer treatment during the relevant period. However, I am not satisfied that I should exercise my discretion to allow additional time in this case for Mr Teede to make his application to the Commission.
Ignorance of the law, including in relation to eligibility to apply for a legal remedy or the timeframes in which an application to the Commission must be made, are not exceptional circumstances. The same can be said about filing one application and later seeking to substitute it with another to overcome a jurisdictional hurdle. It was not necessary for Mr Teede to have the answers to his questions from Epiroc before he applied to the Commission. He had asked for his job back and had been told no. When he decided to apply for an unfair dismissal remedy and discovered he may be ineligible, Mr Teede did not act on the concern until approximately 1 month later.
I accept that Mr Teede was supporting his wife during the relevant period and that he was experiencing financial stress while also trying to find another job. Although these were all important matters, I am not persuaded on balance that they provide an adequate explanation for the delay. Mr Teede took only limited steps to dispute the dismissal until his unfair dismissal application. The absence of prejudice to Epiroc takes the matter no further. The merits of the case are not strong for the reasons described above, and fairness as between others is not a relevant consideration.
The application was not filed within 21 days after the dismissal took effect and for that reason, it was not made in accordance with the Act.
Order
The application is dismissed under s.587(1)(a) of the Act.
COMMISSIONER
Appearances:
G Teede on his own behalf.
A Kefalinos for the Respondent.
Hearing details:
2024.
Sydney (by video):
November 7.
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