Hermogenes (Guy) Aliping v Melbourne Pathology Pty Limited

[2020] FWC 3824

[2020] FWC 3824

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hermogenes (Guy) Aliping
v
Melbourne Pathology Pty Limited
(U2020/9028)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 22 JULY 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Mr Hermogenes (Guy) Aliping for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Act).

[2] Mr Aliping made an application for an unfair dismissal remedy under s.394 of the Act on 1 July 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). It is not in dispute that Mr Aliping’s application was filed outside the timeframe for lodgement of the application. 1 Mr Aliping seeks that the Commission allow a further period of time for the application to be made.

[3] The respondent opposes the grant of an extension of time. It says that Mr Aliping has not advanced an acceptable reason for the delay and there are no exceptional circumstances.

[4] For the reasons set out below, I am not satisfied that there are exceptional circumstances that warrant the grant of a further period for making the application. The application is dismissed.

Background

[5] Mr Aliping commenced employment with the respondent on 16 July 2007 as a Pathologist Assistant. 2

[6] On 13 January 2020, Mr Aliping was issued a letter of allegations setting out the respondent’s concerns as to Mr Aliping’s removal and retention of histological samples (implants) from the respondent’s premises. Mr Aliping was invited to provide a written response by 15 January 2020. 3

[7] In Mr Aliping’s 15 January 2020 response to the letter of allegations, he admitted to removing two pairs of implants from the respondent’s laboratory on the basis that he “decided to keep the implants as a sample.” Mr Aliping acknowledged this to be a mistake and said that he would return the implants for disposal. His response to the letter of allegations concluded by stating, “I am pleading for your consideration regarding this matter.” 4

[8] The respondent met with Mr Aliping on 15 January 2020 during which Mr Aliping was advised that his employment was terminated. 5 A termination letter dated 15 January 2020 relevantly stated:

“This letter is to confirm the outcome of our meeting today with Vanessa Obers regarding the removal of histological samples (breast implants) from the department. As discussed, your employment with Melbourne Pathology has been terminated today (15/01/2020) due to serious misconduct.

Your outstanding leave entitlements will be paid into your nominated bank account – this includes any annual leave, long service and payment in lieu of notice (five weeks).”

[9] The 21-day statutory timeframe for filing the application expired at midnight on 5 February 2020. Mr Aliping’s application for unfair dismissal remedy was received by the Commission on 1 July 2020. The application was therefore lodged 147 days outside of the statutory timeframe.

Statutory framework

[10] The Commission has the power pursuant to s.394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.⁶In 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. 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.

[11] Under s.394(3) of the Act, the Commission may allow a further period of time for an application under s.394 to be made, if it is satisfied that there are exceptional circumstances taking into account:

(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.

[12] I consider each of these matters below.

Consideration

Reason for the delay: s.394(3(a)

[13] 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 or reasonable explanation. 7 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.8

[14] Mr Aliping accepts that he was aware on 15 January 2020 that he had been dismissed “and was no longer welcome to attend work.” 9 As to the reason for the delay in lodging his application for an unfair dismissal remedy, Mr Aliping relies on the following matters:

(a) Mr Aliping was waiting on a termination letter so that he could understand the basis for the dismissal, absent which he could not form a view as to the lodgement of an application for an unfair dismissal remedy. 10 Mr Aliping says that a termination letter was not received until 11 June 2020.11

(b) Mr Aliping contends that the respondent bears some responsibility for the delay in lodging the application by not providing him or his representative a termination letter or the Melbourne Pathology disciplinary procedure (disciplinary procedure) alleged to have been breached by Mr Aliping, prior to 11 June 2020. 12

(c) Mr Aliping was not aware that there was a time limit on instituting an application for an unfair dismissal remedy in the Commission. 13

(d) Following his dismissal, Mr Aliping was fearful about his future, he was “shocked, very worried, and began to sleep a lot.” He became withdrawn and stopped communicating with his wife. 14

[15] The relevant period required to be considered under s.394(3)(a) is the period after the 21-day timeframe for lodging the application, being 6 February 2020 to 1 July 2020.¹⁵ However, the circumstances from the time of the dismissal must be 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.¹⁶

[16] Mr Aliping’s contention that he did not understand why his employment had been terminated is at odds with the evidence before the Commission.

[17] The 13 January 2020 letter of allegations detailed the respondent’s concerns regarding Mr Aliping’s conduct. The letter explained that the removal of the implants by Mr Aliping may constitute theft, dishonesty and wilful misconduct. It specified that termination of employment may occur if the allegations were substantiated. 17

[18] In Mr Aliping’s response to the letter of allegations, he says that retaining the implants as a sample was a mistake. Notwithstanding this, Mr Aliping submits that he was not adequately notified of the allegations against him. 18 However, neither Mr Aliping’s 15 January 2020 response, nor the 15 January 2020 meeting notes indicate that Mr Aliping queried the nature of the allegations or the respondent’s view that retaining the implants may breach the disciplinary procedure.19 These matters demonstrate that Mr Aliping had a sufficient understanding that his dismissal was occasioned by his admitted conduct. I do not accept Mr Aliping’s contention that absent a termination letter he did not understand the basis for his dismissal. I therefore reject Mr Aliping’s contention that a termination letter was required for his unfair dismissal application to be made.

[19] Notwithstanding Mr Aliping’s reliance upon the import of the termination letter to explain the delay, Mr Aliping did not take immediate steps to lodge the application upon its receipt together with the disciplinary procedure on 11 June 2020. Rather, the application was not lodged for a further 20 days during which Mr Aliping says that he was taking advice and preparing his application for lodgement. 20 In circumstances where Mr Aliping contends that the termination letter did not contribute to his understanding of the dismissal,21 I do not accept that Mr Aliping required 20 days from 11 June 2020 to lodge his application. Accordingly, I reject Mr Aliping’s contention that the delay was occasioned by the absence of a termination letter.

[20] The respondent did not adduce any evidence to support its position that the termination letter was posted to Mr Aliping’s home address following the 15 January 2020 dismissal. 22 However, by reason of the above matters, I reject Mr Aliping’s contention that the respondent contributed to the delay by not providing the termination letter prior to 11 June 2020. Indeed, no explanation has been advanced by Mr Aliping as to why a copy of the termination letter was not sought following his dismissal on 15 January 2020 and prior to engaging his representative in early April 2020, at which time the application was already out of time.

[21] Further, Mr Aliping’s contention that the respondent did not provide to him the disciplinary procedure before 11 June 2020 and therefore bears some responsibility for the delay is rejected. The 13 January 2020 letter of allegations states that “the behaviours that may breach the Melbourne Pathology Disciplinary Policy include theft, dishonesty and wilful misconduct.” Despite this, a copy of the disciplinary procedure was not sought by Mr Aliping until 9 April 2020, during the period of the delay. In this circumstance, I do not accept that the delay was partly the making of the respondent. In any case, the disciplinary procedure was not necessary for the making of the application where, as I have found, Mr Aliping had sufficient information before him as to the basis for his dismissal which was effected on 15 January 2020. I therefore do not accept that in order to make the application Mr Aliping required the period following 11 June 2020 to evaluate his legal position upon receipt of the disciplinary procedure.

[22] Mr Aliping’s contention that he was not aware of the 21-day limitation period for lodgement is not an acceptable reason for the delay. 23 In any case, Mr Aliping was legally represented from early April 2020. Mr Aliping’s evidence is that he advised his representative upon engagement that he “had been fired but did not understand why.”24 I have earlier rejected the contention that a termination letter and the disciplinary procedure were necessary for Mr Aliping to lodge his application. It follows that I also reject Mr Aliping’s submission that it was “unrealistic” for the application to have been made in early April 2020, particularly where the 21-day limitation period lapsed on 5 February 2020.

[23] Mr Aliping submits that he became withdrawn following his dismissal and this contributed to the delay. However, the effect of the dismissal upon Mr Aliping’s capacity to lodge the application is not further explained. Nor does Mr Aliping advance any probative evidence to support the contention that his feelings of shock and worry contributed to the delay. I am not persuaded that this matter constitutes an acceptable explanation for any part of the delay.

[24] I do not find that any of the matters relied upon by Mr Aliping, individually or collectively, constitute an acceptable reason for the delay giving rise to exceptional circumstances.

[25] The absence of an acceptable reason for the delay weighs against the grant of an extension.

Whether the person first became aware of the dismissal after it had taken effect: s.394(3)(b)

[26] It is not in dispute that Mr Aliping became aware of his dismissal on 15 January 2020. 25

[27] Mr Aliping submits that he does not rely upon s.394(3)(b) to support his application for an extension of time. 26 Rather, Mr Aliping relies upon “a different matter.” He contends that he did not understand the basis for his dismissal at the 15 January 2020 meeting and this weighs in favour of the grant of an extension.27

[28] Mr Aliping’s submission misunderstands the application of s.394(3) of the Act, which requires the Commission to take into account each of the factors at sub-sections (a) to (f) in considering whether to grant an extension of time. Each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. 28

[29] Notwithstanding Mr Aliping’s contention that he did not understand the basis for his dismissal, Mr Aliping had 21 days to lodge his application from the date the dismissal took effect. This weighs against the grant of an extension.

Action taken by the person to dispute the dismissal: s.394(3)(c)

[30] Mr Aliping did not take any action to dispute the dismissal until his representative sent correspondence to the respondent on 9 April 2020. 29

[31] At this time, Mr Aliping’s application for an unfair dismissal remedy was already out of time. This weighs against the grant of an extension.

Prejudice to the employer: s.394(3)(d)

[32] While a long delay gives rise to a general presumption of prejudice, 30 it is not contended that any prejudice to the respondent would arise if an extension of time was granted.31

[33] Contrary to Mr Aliping’s submission, 32 I do not consider the mere absence of prejudice to be a factor that would tell in favour of the grant of an extension of time. I consider this to be a neutral consideration.

Merits of the application: s.394(3)(e)

[34] The Commission should not embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.³³

[35] The respondent submits that it had a valid reason for dismissing Mr Aliping for removing the implants from its workplace.

[36] Mr Aliping contends that his merits case has some prospects of success on the following basis: 34

(a) Mr Aliping says that he was not adequately notified of the allegations against him so that he could provide an appropriate response.

(b) Mr Aliping denies that he was directed to dispose of the implants prior to dismissal.

(c) The respondent acted unfairly and unreasonably in its investigation.

(d) The disciplinary procedure specified a process which Mr Aliping contends was not observed by the respondent.

(e) The respondent mischaracterised earlier correspondence to Mr Aliping as a warning.

(f) The dismissal of Mr Aliping was harsh in light of various mitigating factors including Mr Aliping’s qualifications, length of service and his demonstrated remorse in respect of the conduct.

(g) Mr Aliping was not reminded of his right to have a support person attend the 15 January 2020 meeting.

(h) The respondent “may have taken into account irrelevant and incorrect considerations” in terminating Mr Aliping.

[37] While the factual dispute between the parties has not been tested before me, I note the seriousness of the allegations levelled against Mr Aliping by the respondent. This includes Dr Maxwell’s evidence regarding the ethical and legal implications associated with the removal of the implants. 35 This proceeding, which is essentially interlocutory in nature, does not enable a fulsome examination of these issues and Mr Aliping’s contentions.

[38] It is therefore not possible to make any firm or detailed assessment of the merits of the application. I do not consider the merits to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position: s.394(3)(f)

[39] The parties did not raise any circumstances that are relevant to the question of fairness as it relates to Mr Aliping or any other person in a similar position.

[40] I consider this to be a neutral consideration.

Conclusion

[41] The test of exceptional circumstances in s.394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time either when the various circumstances are considered individually or together.

[42] Given this, there is no basis for me to allow an extension of time. Mr Aliping’s application for an extension of time is dismissed.

DEPUTY PRESIDENT

Appearances:

L Line, Counsel for the Applicant
D Grace, Counsel for the Respondent

Hearing details:

2020.
Melbourne (by telephone):
July 14.

Printed by authority of the Commonwealth Government Printer

<PR721162>

 1  Form F2 – Unfair dismissal application dated 1 July 2020 at 1.5

 2   Hermogenes (Guy) Aliping witness statement dated 10 July 2020 (Aliping statement) at [6]

 3   Dr Ellen Maxwell witness statement filed 13 July 2020 (Maxwell statement) annexure EM5

 4   Maxwell statement annexure EM6; See also Aliping statement at [86]

 5   Maxwell statement at [10], annexure EM7

6 [2011] 203 IR 1

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

 8   Ibid

 9  Aliping statement at [43]

 10   Aliping statement at [19] and [42(a)]; Hermogenes (Guy) Aliping submissions in support of extension of time application dated 13 July 2020 (Aliping submissions) at [10(a) and (b)]

 11   Aliping statement at [16]-[18] and [35]

 12   Aliping submissions at [10(e)]; Aliping statement at [42(c)] and [42(e)]

 13   Aliping statement at [22]; Aliping submissions at [10(a)]

 14   Aliping statement at [14]-[15] and [42(b)]; Aliping submissions at [10(c) and (d)]

15 Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [40]

16 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]

 17   Maxwell statement annexure EM5

 18   Aliping submissions at [18(a)]

 19   Maxwell statement annexure EM7

 20   Aliping statement at [37]-[40]

 21   Ibid at [37], [38],[40] and [42](d)

 22   Form F3 Employer response to unfair dismissal application dated 8 July 2020 at 2.2 and 3.2 at [9]; Respondent’s submissions dated 13 July 2020 (Respondent’s submissions) at [10]

 23   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14]. While this decision relates to an application pursuant to s.365 of the Act, the principle remains apposite

 24   Aliping statement at [25]

 25   Aliping statement at [10]-[11] and [43]; Respondent’s submissions at [11]

 26   Aliping’s submissions at [11]

 27   Aliping’s submissions at [12]; Aliping statement at [19] and [44]

 28   See Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 and Nestle Australia Ltd v Federal Commissioner of Taxation 16 FCR 167 at 184

 29   Aliping statement at [26] and [75]

 30   Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at p.556

 31   Respondent’s submissions at [14]

 32   Aliping’s submissions at [14]-[16]

33 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]

 34   Aliping submission at [18]

 35   Maxwell statement at [4]