Jacob Birch v Services Australia
[2022] FWC 787
| [2022] FWC 787 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jacob Birch
v
Services Australia
(U2022/1469)
| DEPUTY PRESIDENT MOLTONI | BRISBANE, 7 APRIL 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Mr Jacob Birch (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Services Australia (Respondent).
The Respondent has objected to the application on the ground that the application is out of time.
Background
Before turning to the current application before me, I must address the background of this matter.
In the Applicant’s present application, the Applicant in acknowledging it was filed out of time, explained that he had previously made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the FW Act. When asked for a further explanation, the Applicant advised that on 6 October 2021 he had made a prior application (U2021/8985). That application was accepted as lodged within the 21-day statutory time frame but was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.
In reviewing the Commission’s file of the previous matter, it was noted that the Commission made multiple attempts to contact the Applicant by phone and by email using the Applicant’s nominated contact details regarding his incomplete application.
On 13 October 2021, the Commission notified the Applicant, by voicemail and by email, that application U2021/8985 was unpaid and incomplete.
On 25 October 2021, the Commission made a further attempt to contact the Applicant to obtain payment or a completed fee waiver form. A voicemail was left on the Applicant’s phone requesting a call back by close of business on 26 October 2021 as the application was at risk of being dismissed if he did not contact the Commission.
On 27 October 2021, the Applicant sent email correspondence to the Commission advising that he wanted to apply for a fee waiver however he did not have access to a printer to print the required form.
On 1 November 2021, the Commission provided the Applicant with a Form F80 – Waiver of application fee form and advised the Applicant that he could complete and return the form electronically and he should do so within 48 hours. The Applicant was further advised of the importance to progress the matter to avoid potential dismissal of the application as it remained incomplete, and he was advised to contact the Commission’s helpline if he experienced any issues.
On 5 November 2021, the Commission attempted to contact the Applicant by phone as a completed fee waiver form had not been received. A voicemail was left on the Applicant’s phone advising him that the Commission had not received a call back or reply to the Commission’s email of 1 November 2021 and that it was likely that the application would be moving towards dismissal. The Applicant was invited to call the Commission back to discuss this.
Other than the Applicant’s email of 27 October 2021, the Commission received no further contact from the Applicant in relation to his application before a decision was made.
On 21 December 2021, that application was ultimately dismissed by Commissioner Bissett pursuant to s.587(1)(a) of the FW Act, in decision [[2021] FWC 6630], with Commissioner Bisset finding that the application was not accompanied by the fee prescribed by the FW Act and the application was not made in accordance with the FW Act.
On 18 January 2022, the Commission received a phone call from the Applicant’s brother advising the Commission that the Applicant had missed the email attaching the decision due to personal health issues he was experiencing at the time. The Applicant’s brother further advised the Commission that a fee waiver had been completed and sent to the Commission. The Applicant’s brother was requested to provide this information to the Commission in writing.
On 31 January 2022, the Commission received email correspondence from the Applicant requesting to have his case reinstated. The Applicant advised that he had lodged an application for fee waiver via post prior to Christmas but assumed something had gone awry with the postal delivery due to Christmas pressures.
Later that day the Commission responded to the Applicant advising him that the application was made on 6 October 2021 and the application was dismissed some 11 weeks after it was made and about 4 weeks after the Commission’s last attempt to contact him. It was reiterated to the Applicant that payment of the required fee or a completed fee waiver form was due in November and in circumstances where the Commission dismissed the application over a month after payment was due and the Applicant had contacted the Commission more than a month after the application was dismissed, it was not considered an appropriate course of action to reinstate the claim. The Applicant was advised that he could make a new application for an unfair dismissal remedy, but he would be required to make an application for an extension of time for the late filing (as the application would be outside of the 21-day statutory time frame) and address the reason for the delay.
To date, the Commission has no record of receiving the Applicant’s completed fee waiver form sent by post for application U2021/8985.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Turning now to the current application before me, an unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
The Determinative Conference
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the FW Act).
Witnesses
The Applicant gave evidence on his own behalf.
The following witnesses gave evidence on behalf of the Respondent:
·Ms Amie Davies, Director Conduct & Reviews, Services Australia
Submissions
The Applicant filed submissions in the Commission on 3 March 2022 and 28 March 2022. The Respondent filed submissions in the Commission on 1 April 2022.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 17 September 2021.
When was the application made?
It is not in dispute, and I so find, that the application was made on 3 February 2022.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 17 September 2021. The final day of the 21-day period was therefore 8 October 2021 and ended at midnight on that day. As I found above, the application was made on 3 February 2022. This was 3 months and 26 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Consideration
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 8 October 2021. The delay is the period commencing immediately after that time until 3 February 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
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. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Submissions
The Applicant submitted that the delay was for the following reasons:
·The Applicant experienced a breakdown of his marriage, mental health difficulties and homelessness and these led to the Applicant not responding to correspondence in his first application and taking so long to make the second (present) application.
In relation to the reason for the delay, the Respondent submitted that the Applicant had not put medical or other evidence before the Commission to support the Applicant’s submissions as to the reason or delay and further that given the Applicant’s credibility was in question that the Commission ought not find that the Applicant’s reasons for delay were able to be believed.
Evidence
The Applicant’s evidence was that he provided a copy of a Mental Health Care plan dated 15 November 2020. Under cross examination the Applicant said he had seen a psychologist on 6 occasions during the period of June-July 2021 but not following that time. The Applicant conceded that he had not provided any corroborating evidence to the Commission to explain the delay during the relevant period. That is between the date of termination and the date of filing his unfair dismissal claim (the Relevant Period).
Further, the Applicant admitted that he failed to follow up the fee waiver form, does not recall posting it and did not respond to any attempts from the Commission to contact him in his first application.
The Applicant provided two witness statements however these were not supported by testimony and the Respondent was denied the opportunity to cross examine those witnesses. The Applicant submitted that one witness (Ms Birch) was very ill and the other (Mr Foulstone) had recently been promoted and therefore could not take time off work. Additionally, the Respondent submitted that Ms Birch’s evidence consisted of general assertions and Mr Foulstone had no special knowledge of the facts.
The Applicant conceded in cross examination that he had not been honest when he made a submission that his employment history with Services Australia was unblemished. The Applicant claimed this was to protect the identity of other parties involved in his previous transgression however conceded on further cross examination that an admission would not have opened those parties to any further scrutiny than was otherwise caused by his omission. This was a matter relevant to the credit of the Applicant’s reasons for the delay.
The Respondent’s evidence was that the Applicant had been able to email Services Australia on two occasions during the Relevant Period of delay (on 20 September 2021 and again on 22 September 2021) for matters relevant to the Applicant’s employment and final pay.[6] Further it was the Respondent’s evidence on cross examination of the Applicant that the Applicant’s assertions in material filed before the Commission, that his service with the Respondent was unblemished, was not accurate. The Applicant admitted that he had been subject to a previous Australian Public Service Code of Conduct breach in February 2021.[7] The Respondent submitted this ought be considered in respect to the credit of the Applicant’s asserted reasons for the delay.
Findings
Having regard to the above, I find that the reasons for the delay provided by the Applicant were not supported by any corroborating evidence during the Relevant Period and further that the Applicant’s explanations were not credible. This weighs against the grant of a further period.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.
What action was taken by the Applicant to dispute the dismissal?
The Applicant alleges that he took action to dispute the dismissal by lodging the first unfair dismissal application on 6 October 2021.
Paragraphs 3 to 16 summarise the circumstances in relation to that first application. That application was dismissed by Commissioner Bissett on 21 December 2021.[8]
Submissions
The Applicant submitted that he lodged an unfair dismissal form to dispute the dismissal on 6 October 2021 however that the Commission did not send him a fee waiver form.[9]
The Respondent submitted that its termination letter expressly outlined the Applicant’s ability to seek review of his dismissal by making an application to the Commission and that an application must be made within 21 days of the dismissal taking effect.[10] The Respondent also submitted that the Applicant emailed the Respondent to seek further information about his final leave entitlements on 20 September 2021 and 22 September 2021.[11]
Evidence
The Applicant’s evidence on cross examination is that he could not recall if he did or did not send the waiver form in. I note this was at odds with the assertions made to the Commission.
The Respondent’s evidence was that the Applicant knew he had 21 days to lodge his unfair dismissal application the first time,[12] that the Applicant sent two emails to the Respondent during the Relevant Period[13] and that the Applicant admitted under cross examination that he had not put any evidence before the Commission to corroborate his reasons for not completing his first application.
Findings
While the Applicant took some action to dispute the dismissal, he did not complete the required steps and it was reasonable for the Respondent to assume that the Applicant did not intend to pursue his dismissal. This weighs against the granting of a further period, albeit slightly.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find, that in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. This is a matter that weighs in favour of the grant of a further period, albeit slightly.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[14] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits, albeit there was evidence detrimental to the credit of the Applicant. The Applicant has an apparent case, to which the Respondent has an apparent defence. This is a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
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 and this consideration is neutral.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reason for the delay, being not supported by any corroborating evidence during the Relevant Period and further that the Applicant’s explanations were not credible;
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the actions taken by the Applicant to dispute the dismissal were incomplete;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[15] 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 exceptional.[16]
Whilst the Applicant provided an explanation for the delay, that explanation was not supported by any evidence put before the Commission. Indeed, on the Applicant’s own evidence there was no medical support sought during the Relevant Period. Furthermore, the remainder of the explanations for the delay turned on the Applicant’s own evidence. I accept that the Applicant lacked candour in his claim to have an unblemished service record with the Respondent and that he put contradictory evidence before the Commission in relation to whether or not he had posted a fee waiver form in the first application (see paragraphs [14] and [39]) and this has weighed against the credibility of the Applicant’s witness testimony.
Nonetheless, the stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist,[17] however there is no medical evidence to support that contention in this matter.
Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[18] In this case, there was no evidence put before the commission to support such contentions.
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[19] However in this case, the Applicant’s steps to contest the termination were incomplete.
A lack of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist.[20]
Where an applicant’s submissions on the merits lack detail, they are unlikely to favour an extension of time being granted.[21]
Conclusion
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances. Not being satisfied that there are exceptional circumstances, it is therefore not appropriate to grant an extension of time.
I order that the jurisdictional objection be upheld and that the Applicant’s application for an unfair dismissal remedy be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Birch, Applicant
Mr S Misrachi, Respondent
Hearing details
2022.
Brisbane (by video)
April 5.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[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, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Services Australia, Witness Statement of Ms Amie Davies, 1 April 2022, AD2.
[7] Ibid (n 6) AD3, p24.
[8] Jacob Birch v Services Australia[2021] FWC 6630.
[9] Jacob Birch, Witness Statement of Mr Jacob Birch, Undated, p4.
[10] Ibid (n 6) AD1, p3.
[11] Ibid (n 6) AD2.
[12] Ibid (n 10).
[13] Ibid (n 11).
[14] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[16] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[17] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[18] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[20] Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].
[21] See, eg, Day v CBI Constructions Pty Ltd [2013] FWC 5359, [19]; Fitzpatrick v Danila Dilba Health Service[2013] FWC 4565.
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