Ian St Jacques v Bunnings Group Limited T/A Bunnings

[2015] FWC 7050

[2015] FWC 7050

FAIR WORK COMMISSION

DECISION

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

Ian St Jacques
v
Bunnings Group Limited T/A Bunnings
(U2015/10405)

COMMISSIONER JOHNS SYDNEY, 29 OCTOBER 2015

Application for relief from unfair dismissal, extension of time application.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow Mr Ian St Jacques (applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 4 September 2015, that being 305 days after his employment was terminated by Bunnings Group Limited (Bunnings/respondent) on 3 November 2014.

The jurisdictional objection

[3] On 14 September 2015 the Commission wrote to the applicant outlining the matters the Commission is required to consider under s.394 of the FW Act and asked him to provide a statement addressing these matters within 14 days.
[4] On 18 September 2015 the respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect. In short the respondent says:

a) The application was lodged outside the 21 day time limit and there are no exceptional circumstances which would justify an extension of time being granted; and
b) The applicant wrote a clear and comprehensive letter to the respondent regarding entitlements on 16 April 2015, however took no action to dispute the dismissal until 4 September 2015.

[5] On 28 September 2014 the applicant responded to the request for information made by the Commission.
[6] In short the applicant says that, although the termination took effect on 3 November 2014 he:

a) suffered from work related stress, anxiety and depression; and
b) was prevented from seeking legal advice due to the anxiety and depression he suffered.

[7] On 12 October 2015, through his representative, the applicant advised the Commission that he was content for the extension of time application to be decided “on the papers”.

Legislative scheme

[8] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

[9] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.  4

Facts leading up to and relating to the dismissal

[10] The applicant was dismissed from his employment on 3 November 2014.
[11] Prior to his dismissal the applicant had been absent from work on sick leave since 28 April 2014.
[12] The respondent submits that the decision to terminate the applicant’s employment was taken after his treating doctor advised Bunnings that applicant would not be fit to perform the inherent requirements of his role for a further period between 6 to 12 months.
Consideration
Paragraph 394(3)(a) - The reason for the delay
[13] It is indisputable that there were 305 days between when the termination of the applicant’s employment took effect and when an application was filed with the Commission.
[14] The applicant says the reason for the delay was due to his inability to seek legal advice in relation to the matter as a result of the anxiety and depression which he suffered as a result of his employment and the behaviour of his employer.
[15] The applicant provided the Commission with a statement which had attached to it a record of the applicant’s consultations between 17 April 2014 and 10 August 2015.
[16] Noting that the termination of employment occurred on 3 November 2014 the consultation notes establish that:

a) on 31 October 2014 the applicant received a medical certificate for the period from that day through until 14 November 2014. The doctor noted that the applicant reported having been “sacked” and that “he want[ed] to seek legal advice.”

b) on 19 May 2015 the applicant attended another medical appointment. The doctor notes that the applicant “is seeking legal advice.”

c) on 24 July 2015 the applicant attended a number of medical appointments. The doctor noted that “his legal battle with Bunnings goes on.”

[17] The Commission, as presently constituted, accepts that during the period from when the dismissal occurred (on 3 November 2014) through until when the applicant lodged his unfair dismissal claim (on 4 September 2015) the applicant was depressed, anxious and receiving treatment from a number of mental health professionals. However, the applicant did not file any medical evidence to establish that his anxiety and depression rendered him incapable of making an application for an unfair dismissal remedy in the 305 days after the termination of his employment took effect.
[18] The Commission, as presently constituted, accepts that the applicant’s medical condition was likely debilitating, however, the Commission also notes that on 16 April 2015 the applicant wrote to the General Manager of Bunnings Commercial and, in his words “pleaded my loyalty and hard work to Bunnings.” 5 Although the applicant had the capacity to write to Bunnings, as he did at this time, it took him another four months before he lodged his application for an unfair dismissal remedy. That delay is unexplained.
[19] In Thiess Services Pty Ltd v Stephens 6 the Full Bench made it very clear that an applicant for an unfair dismissal remedy “needs to provide a credible reason for the whole of the period that the application was delayed”7 (my emphasis).
[20] In the present matter the applicant has failed to provide a credible reason for all of the relevant period, especially the period between May 2015 (when his doctor noted he was seeking legal advice) and September 2015 (when the application an unfair dismissal remedy was filed).
[21] The statement provided by the applicant did not explain when the applicant obtained legal advice. There is no explanation of what he did and when he did it in the lead up to the filing of his unfair dismissal application. Either the applicant himself or his representative could have explained the chronology about the seeking and obtaining of legal advice and the filing of the unfair dismissal application.
[22] Consequently the Commission, as presently constituted, is not satisfied that the material before the Commission discloses anything out of the ordinary or special. Rather, periods of depression and anxiety are regularly and routinely encountered by people who have had issues in the workplace and, after a lengthy absence from the workplace, have their employment terminated. While the Commission, as presently constituted, accepts that the applicant was depressed and anxious that does not provide a credible reason for whole of the 284 day delay in the filing of his unfair dismissal application.
[23] While the Commission, as presently constituted, is sympathetic to the applicant’s circumstances, it is not satisfied that the applicant, who had the capacity to consult with doctors and seek legal advice in the period after the termination of his employment, was unable to lodge an unfair dismissal application at any other earlier time before he did in September 2015.
[24] This factor weighs against granting the applicant an extension of time.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[25] It is uncontested that the applicant first became aware of the dismissal on 3 November 2014.
[26] This factor weighs against granting the applicant an extension of time.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[27] The applicant disputed his dismissal by lodging this application 305 days after the termination of his employment.
[28] This factor weighs against granting the applicant an extension of time.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[29] In circumstances where there has been 305 days between the termination of the applicant’s employment and the filing of the application for an unfair dismissal remedy it is reasonable to assume that there might be some prejudice caused to the respondent by reason of the delay which is above the usual prejudice that a respondent experiences when there is a delay.
[30] However, for present purposes the Commission, as presently constituted, treats the prejudice to the employer was a neutral consideration.
Paragraph 394(3)(e) - The merits of the application
[31] In the matter of Kornicki v Telstra-Network Technology Group 8the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 9

[32] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[33] It is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[34] Therefore, consistent with the accepted practice in jurisdictional hearings the Commission, as presently constituted, has not embarked upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[35] The substantive factual contest between the applicant and the respondent is whether there was a valid reason for the dismissal based on the applicant’s inability to perform the inherent requirements of the position. This is not a factual dispute that can be resolved at a jurisdictional hearing.
[36] For present purposes the Commission, as presently constituted, is satisfied that the applicant’s case is not one that is without merit or lacking in any substance.
[37] If the applicant can establish to the satisfaction of the Commission that no valid reason existed then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the applicant’s employment was unfair.
[38] Because the applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[39] There was no issue of fairness in relation to any other person in a similar position and it is not a relevant factor in the present matter.

Conclusion

[40] For the reasons set out above, on balance, the Commission, as presently constituted, is not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).
[41] An Order to this effect will be issued with this decision.

COMMISSIONER

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3 [2011] 203 IR 1.

 4 Above note at [13].

 5   Applicant’s statement to the Commission paragraph 13.

 6   [2014] FWCFB 2426.

 7 Ibid at [37].

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

 9   Ibid.

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