Ian De'Ath v Kathmandu Holdings Limited

[2021] FWC 5520

[2021] FWC 5520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian De’Ath
v
Kathmandu Holdings Limited
(U2021/7354)

DEPUTY PRESIDENT MASSON MELBOURNE, 13 SEPTEMBER 2021

Application for an unfair dismissal remedy- application made outside of 21-day time limit –no exceptional circumstances present – extension of time not granted - unfair dismissal application dismissed.

Introduction and background

[1] This decision concerns an application by Mr Ian De’Ath (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Kathmandu Holdings Limited (the Respondent) from 26 May 2014 and at the time of his dismissal was employed as a part time sales advisor at its Frankston store.

[2] The Applicant asserts in his Form F2 application that his employment with the Respondent was terminated with effect from 27 July 2021. The unfair dismissal application was lodged on 19 August 2021.

[3] Section 394(2) of 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 Fair Work Commission (the Commission) allows pursuant to s 394(2). As the dismissal took effect on 27 July 2021 the period of 21 days ended at midnight on 17 August 2021. The application was therefore filed 2 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] There being contested facts involved, the Commission is obliged by s 397 of the Act to conduct a conference or hold a hearing. After taking into account the views of the Applicant and the Respondent as to whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s 399 of the Act) which was set down for 9 September 2021. At the conference the Applicant appeared and gave evidence on his own behalf. Ms Yvette Dowlan (People and Performance Manager) appeared for and gave evidence on behalf of the Respondent.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made 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 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 exceptional².

[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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.

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[8] 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 turn to consider these matters in the context of the Application.

Reason for the delay

[9] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 17 August 2021. The delay is the period commencing immediately after that time until 19 August 2021, although circumstances arising prior to that day may be relevant to the reason for the delay 3.

[10] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. 4 An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay5.

[11] The Applicant gave evidence that he suffers from medically diagnosed anxiety and depression and in the wake of his dismissal had been overwhelmed such that he was unable to focus on completing and filing his application. He attributed the delay in filing his application to his condition and state of mind following his dismissal. He further states that he was also required to take steps to secure social security benefits to ensure he had some income in the wake of loss of employment. The Applicant also states that he had been unable to secure an appointment with either his General Practitioner (GP) or his treating psychologist in the period since his dismissal and as such was unable to provide any medical evidence regarding his condition following his dismissal.

[12] I accept without reservation that the Applicant was upset at the loss of his employment in circumstances where he had been employed by the Respondent for over seven years. I also have no reason to doubt the Applicant’s evidence that he suffers from diagnosed anxiety and depression. However, in the absence of any medical evidence, I treat with great caution his claim that his condition was such that he was unable to prepare and file his application for an unfair dismissal remedy within the 21 day statutory time period. I particularly note that the Applicant contacted the Respondent on the 28 July 2021 for the purpose of requesting a review of the decision to dismiss him and that he also gave evidence of his efforts to secure social security benefits in the wake of his dismissal.

[13] Having regard to the foregoing, I am unable to accept the explanation provided by the Applicant as to having been unable to lodge the application on time or at a time earlier than the date on which this application was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

[14] It was not in dispute, and I find, that the Applicant was notified of his dismissal on the same day that it took effect on 27 July 2021 and therefore had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances.

Action taken to dispute the dismissal

[15] The Applicant contacted the Respondent’s HR department on 28 July 2021 in the wake of his dismissal and sought a review by the General Manager of the decision to dismiss him. Ms Dowlan gave evidence that the Respondent does not have a policy that provides for the review of a dismissal decision. It was not in dispute that no response was provided by the Respondent to the Applicant’s request for a review of the dismissal decision.

[16] While the Respondent does not have a policy providing for a review of a dismissal decision that position should have been communicated to the Applicant in response to his request for a review. I am satisfied in the circumstances that the Applicant, by contacting the Respondent’s HR department on 28 July 2021 seeking a review of the decision to terminate his employment, took some action to dispute his dismissal. This weighs in favour of a finding of exceptional circumstances.

Prejudice to the employer

[17] It is not in dispute, and I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

Merits of the application

[18] The Act requires me to take into account the merits of the application in considering whether to extend time.

[19] The Applicant states that a series of allegations were put to him prior to his dismissal, those being that he had engaged in harassment, sexual harassment, racial harassment and had thereby breached the Kathmandu code of conduct. While acknowledging that some of the allegations had some truth to them he contended that any conversations he held with other staff were private and his accusers had not been privy to such conversations. He further categorically refuted that he had engaged in any form of racial harassment. The Applicant further claimed that his private conversations with colleagues were taken out of context, constituted hearsay and should have been dealt with at the time they occurred by way of counselling or warnings rather than dismissal.

[20] The Applicant further contended that particular staff members who had made complaints and levelled false allegations against him were motivated by dissatisfaction with the Applicant on two basis. Firstly, he had left the store one day without notice after suffering an anxiety attack which left work colleagues to cover his absence. Secondly, he had obtained a medical exemption from wearing a mask during Covid restrictions which led to some staff not wanting to work with him. The Applicant further states that he had raised the behaviour of his disgruntled colleagues with his manager and while invited by that manager to raise a formal complaint he ultimately decided “not to stir the pot” and chose not to make a formal complaint.

[21] In relation to the investigative process the Applicant submits that there was no evidence to support his dismissal, he was given limited time to prepare for the disciplinary interview on 27 July 2021 and that in seven years of employment with the Respondent he had not been subject to any verbal or written or warnings.

[22] The Respondent rejects the Applicant’s contentions. Ms Dowlan states that while the identities of the employees who had made complaints regarding the Applicant were not disclosed to the Applicant during the investigation process for privacy reasons, the detail of the allegations were clearly provided to the Applicant to enable him to respond. Ms Dowlan further states that if the matter proceeded to hearing of the merits, then those witnesses would necessarily be called. Ms Dowlan emphasised that as a large retailer the Respondent could not and would not tolerate conduct in the workplace of the kind that the Applicant was found to have engaged in.

[23] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case 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

[24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[25] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Conclusion

[26] While the Applicant took some steps to challenge his dismissal, which I have found weighs in favour of a finding of exceptional circumstances, all other factors either weigh against or are neutral considerations. Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[27] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

I De’Ath, Applicant.
Y Dowlan for the respondent.

Hearing details:

2021.
Melbourne (By Microsoft Teams):
9 September.

Printed by authority of the Commonwealth Government Printer

<PR733555>

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

2 Ibid.

 3   Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

 5 Ibid at [40].