Jacob William Thomas v Fujitsu Australia Ltd
[2022] FWC 1835
•14 JULY 2022
| [2022] FWC 1835 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jacob William Thomas
v
Fujitsu Australia Ltd
(C2022/2362)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 14 JULY 2022 |
Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.
This decision concerns an application by Mr Jacob William Thomas under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).
It is uncontested that Mr Thomas’ employment with the Respondent ended on 8 March 2022. The GP Application was lodged on 12 April 2022. The period of 21 days ended at midnight on 29 March 2022 and the GP Application was therefore lodged 12 days out of time. Mr Thomas seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent company opposes the grant of an extension of time.
On 13 July 2022 I conducted the proceedings by way of determinative conference by Microsoft Teams. Mrs Tracy Thomas, Mr Thomas’ mother, appeared on behalf of Mr Thomas and filed a witness statement. Mr Thomas filed a witness statement and gave evidence. Mr Thomas also filed a witness statement for Mr Christopher Thomas. The Respondent did not require either Mrs Thomas or Mr Christopher Thomas to attend for cross examination.
Ms Asha McDermott, Head of Corporate Law for the Respondent appeared on behalf of the Respondent.
Background
The Respondent is a supplier of air conditioning products in Australia. Mr Thomas was employed by the Respondent in the role of On-site Technician from 25 October 2021 until 8 March 2022. Mr Thomas is 23 years old and was dismissed during his probation period with the Respondent.
On 25 March Mr Thomas lodged an application for an unfair dismissal remedy pursuant to section 394 of the Act (Unfair Dismissal Application). Mrs Thomas assisted Mr Thomas in the preparation of the Unfair Dismissal Application and filed it on his behalf.[1] On 11 April 2022 Mrs Thomas, on behalf of Mr Thomas, discontinued the Unfair Dismissal Application. As already set out, Mr Thomas then lodged the GP Application on 12 April 2022.
Consideration
The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant.[2]
The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[3] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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.[4]
Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:
(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
The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[5] or a reasonable explanation.[6] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[7] the Full Bench noted that the absence of an 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 the circumstances must be considered.[8] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[9]
As to the reason for delay, Mr Thomas submits that he used the “wrong avenue” and he later realised that the GP Application was the correct avenue for his claim.[10] Further to this, in his witness statement Mr Thomas says that Mrs Thomas filed the Unfair Dismissal Application on his behalf and it was Mrs Thomas who first became aware that she had filed the wrong application. At hearing Mr Thomas’s evidence was that it was not until 11 April 2022 that he became aware that the Unfair Dismissal Application could not be pursued. Secondly, Mr Thomas says that he has been quite unwell with hives, anxiety and depression at the time of dismissal. Additionally, Mr Thomas says that he could not access computer equipment due to members of his household contracting COVID-19 as a reason for the delay.” [11]
The Respondent submits that the Applicant’s reasons for the delay are not a reasonable explanation for the delay and that the Applicant or his family members could have accessed the necessary resources and made the correct application in time.[12]
As to the Unfair Dismissal Application being wrongly filed it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement.[13] There is readily available information on the Commission’s website regarding eligibility to lodge applications. A preliminary perusal of that information demonstrates that Mr Thomas is ineligible to make the Unfair Dismissal Application as he does not meet the minimum employment period.
The prior lodgement of an erroneous application to the Commission has been considered an acceptable reason for the delay in lodgement of a second application.[14]
In Hambridge v Spotless Facilities Services Pty Ltd[15] the Full Bench of the Commission said:
“… A mistake in using a wrong form by a self-represented applicant should not lead to an outcome which is fatal to the applicant’s access to the Commission’s jurisdiction.”
However, upon realising that an incorrect application has been made it is incumbent on an applicant to act swiftly in making the correct application.[16]
Firstly, I do not consider that Mr Thomas used “the wrong avenue”. His evidence at hearing was that he made an unfair dismissal application because he believed he had been unfairly dismissed by the Respondent. In my view, he filed the application he intended to. The fact that he is ineligible to make such an application does not change that fact.
Secondly, Mr Thomas did not act swiftly once he became aware that he was ineligible to make the Unfair Dismissal Application. A search of the Commission’s file demonstrates that:
(a) on 28 March 2022 the Commission telephoned Mr Thomas and left a voicemail advising him that in order to make an unfair dismissal application an employee must have met the minimum employment period and it appeared that Mr Thomas had not. A telephone number was left and Mr Thomas was requested to return the call. He did not do so;
(b) on 1 April 2022 the Commission telephoned Mr Thomas again and spoke to him. In that telephone call Mr Thomas was advised that it did not appear that he had met the minimum employment period required to be eligible to make an unfair dismissal application. Mr Thomas advised that he wished to keep the Unfair Dismissal Application on foot pending legal advice. Mr Thomas was provided with information regarding general protections applications and advised that grounds for such an application must be established. He was advised that any general protections application would be out of time and was referred to the Commission’s website for more information regarding extension of time and exceptional circumstances;
(c) on 11 April 2022 Mrs Thomas contacted the Commission’s helpline and requested information as to how to lodge a general protections application. Mrs Thomas was provided with this information and referred to the Commission’s website for information regarding extension of time and exceptional circumstances. She was advised that if a general protections application was lodged it would be referred to a member to determine whether an extension of time for the lodgement of the application ought be granted. Mrs Thomas withdrew the Unfair Dismissal Application;
(d) the GP Application was lodged on 12 April 2022.
I accept that once Mrs Thomas contacted the Commission she acted quickly to lodge the GP Application. However, Mr Thomas was advised on 28 March 2022 and 1 April 2022 that it appeared that he was ineligible to make the Unfair Dismissal Application. He took no action in relation to either of these communications. He conceded at hearing that his evidence that he did not become aware until 11 April 2022 that he was ineligible to make an unfair dismissal claim was not true. Had Mr Thomas taken action immediately following the message left for him on 28 March 2022 the GP Application would have been lodged in time. Further, notwithstanding being informed on 1 April 2022 that any GP Application was now out of time, he elected to maintain the Unfair Dismissal Application on foot.
In the above circumstances the filing of the Unfair Dismissal Application does not provide an acceptable explanation for the delay in lodgement.
As to Mr Thomas being unwell, he says that he had been suffering from anxiety and hives and at the time of dismissal “was in a terrible state”. He says he became quite depressed. Mrs Thomas evidence is also that Mr Thomas was suffering from both physical and mental health issues.[17] Her evidence is that she took time off to care for Mr Thomas.[18] Mr Thomas filed a medical certificate from his treating practitioner, Dr Rathi Sasitharan. That certificate is dated 31 May 2022 and provides that “From my examination and information provided by the patient which I believe to be reasonable, Jacob was suffering from a medical condition.” It says that Mr Thomas had a rash and anxiety in the period early March 2022 to mid-April 2022 and provides that “In my opinion Jacob was unable to carry on his duties/tasks as usual from/on 08/03/2022 to 15/04/2022 inclusive.” I accept that Mr Thomas had anxiety and hives at the time of his dismissal. However, whilst unfortunate, I consider distress and anxiety to be a normal reaction following the loss of one’s employment. It is not uncommon or unusual or special. For my part, I am unable to see how having hives in any way precludes the lodgement of an application within time. As to the medical certificate, I do not consider it is probative evidence of the matters asserted by Mr Thomas. Firstly, it is dated 31 May 2022 and relates to the period 8 March 2022 – 15 April 2022. It is therefore a post dated, rather than a contemporaneous, certificate. Secondly, it is based, in part, on information provided by Mr Thomas approximately six weeks after the relevant period concluded. It is not based on an opinion Dr Sasitharan formed at the relevant time on Mr Thomas’ presentation at that time. Thirdly, Mr Thomas’ evidence at hearing was that he did not consult Dr Sasitharan at any time between his dismissal and 31 May 2022. His further evidence at hearing was that the consultation on 31 May 2022 was for the purposes of obtain the certificate for these proceedings. Accordingly, Mr Thomas’ health issues were not so severe as to require medical consultation. In those circumstances, it is difficult to see how it could be found that Mr Thomas’ medical conditions were so severe as to have precluded him from lodging the GP Application on time. Further, notwithstanding Mr Thomas’ health issues he had sufficient capacity to assist his mother to file the Unfair Dismissal Application on time. If Mr Thomas had capacity to file the Unfair Dismissal Application I am unable to see how he also did not have capacity to lodge the GP Application on time.
Mr Thomas’ health issues do not provide an acceptable or reasonable explanation for the delay.
Thirdly, Mr Thomas submits that he was unable to access any of his computer equipment. He says that his brother contracted COVID-19 and was required to isolate from 31 March 2022 until 6 April 2022.[19] Mr Thomas says that he and his brother share a room that houses their computer equipment and that his brother required that room to work during his period of isolation. As such, he says that he did not have access to a computer. His evidence at hearing was that he could not use the room at any time due to the risk of infection. I do not consider this provides a reasonable explanation for the delay. Firstly, even if Mr Thomas did not wish to enter the room after his brother had ceased working, he could have asked his brother to access the Form F8 and send it to him or to his mother or print it out for Mr Thomas to complete. Secondly, Mr Thomas’ evidence was that he had a mobile telephone. Mr Thomas (or Mrs Thomas) could have accessed the Form F8 from a mobile telephone. Thirdly, he could have used a computer located elsewhere, for example in a library, at a friend’s house or at his parents’ house. There is no evidence that Mr Thomas was infectious or required to isolate. Fourthly, Mr Thomas could have lodged an application by telephone. Fifthly, the period of the delay is the period from 29 March to 12 April 2022. Accordingly, even if Mr Christopher Thomas contracting COVID -19 provides a reasonable explanation for the period he was required to isolate, which I do not consider it does, it does not provide an explanation for the periods 29 - 30 March 2022 and 7 April - 12 April 2022. I note that the latter period is after Mr Thomas was advised on 1 April 2022 that it appeared that he was ineligible to make the Unfair Dismissal Application and that any general protections application was out of time.
Mr Thomas’ asserted inability to access his computer due to his brother contracting COVID -19 does not provide an acceptable or reasonable explanation for the delay in lodgement.
In light of all of the above, I do not consider that Mr Thomas has provided a reasonable or acceptable explanation for the delay in lodgement. This weights against the grant of an extension of time.
Action taken by the person to dispute the dismissal
As set out above, it is uncontested that the Applicant lodged the Unfair Dismissal Application. The Respondent concedes, correctly in my view, that by doing so Mr Thomas disputed his dismissal. This weighs in favour of granting an extension of time.
Prejudice to the employer
The Respondent submits that the lateness of the application will, if accepted, expose the Respondent to prejudice including time, costs and inconvenience of defending the Application.[20] I cannot identify any specific prejudice that would accrue to it were an extension of time to be granted. Nonetheless, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
The Respondent says that the Applicant was dismissed in his probationary period because of his poor performance, inability to complete work to the minimum required standard of his role within the required timeframes, his poor work ethic, poor communication skills and lack of accountability in following up on assigned tasks.[21]
In his Form F8 Mr Thomas says that he was called to a meeting and told that due to his absences he was no longer going to be employed. He says that he did not receive any formal counselling that his work performance was lacking.[22] He relies upon on section 340 of the Act. This is consistent with the Form F2 filed in the Unfair Dismissal Application which says “Reason for termination @ meeting called on 8 March 2022 was too many absences during my probationary period.”[23] However, in his Outline of Argument Mr Thomas says that the reason the Respondent gave for dismissing him was because his “output was unsatisfactory” and “numerous reasons ... such as not meeting KPI standards, slack attitude towards work, not displaying appropriate skills for someone in his role.”[24] Further, at hearing his evidence was that at the meeting in which his employment was terminated he was told the reason for his dismissal was that he was not meeting the required work standards in his probationary period. His further evidence was that he believed he was dismissed because he took personal leave and that he formed that view “in my own head.” Accordingly, on his own evidence, contrary to the contents of his Form F2 and Form F3, the reason given by the Respondent for Mr Thomas’ dismissal at the time was not his absences from work; rather it was that he had failed to meet the necessary standard of performance in his probationary period.
Although the merits of the matter have not been fully tested, on the material currently before me, and with particular reference to Mr Thomas’ inconsistent evidence on this issue, the application appears to have little merit. However, for the present purposes I am prepared to consider this to be a neutral factor.
Fairness as between the person and another person in a like position
Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[25] Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.[26] The parties did not draw my attention to any particular cases (noting the Respondent made reference to a number of cases throughout its Outline of Argument) or persons that would be relevant in relation to the question of fairness as between Mr Thomas and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mr Thomas’s application.
Accordingly, I decline to grant an extension of time under section 366(2). Mr Thomas’ application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
T Thomas for the Applicant
A McDermott for the Respondent
Hearing details:
2022
Melbourne (by Teams)
13 July 2022
[1] Witness statement of Jacob Thomas, Witness statement of Tracy Thomas at [2] – [3]
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
[3] [2011] FWAFB 975
[4] Ibid at [13]
[5] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
[6] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
[7] [2018] FWCFB 901
[8] Ibid at [39]
[9] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
[10] Applicant’s Outline of Submissions, 1d
[11] Form F2, 1.4; Witness Statement of Jacob Thomas
[12] Respondent’s Outline of Submissions at [14]
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975
[14] Lane v Kangaroo Island Drive & Adventures Pty Ltd[2010] FWA 3939; Nash v Discovery Holiday Parks Barossa – Tanunda[2015] FWC 380; Green v Bilco Group Pty Ltd[2018] FWC 6818
[15] [2017] FWCFB 2811 at [41]
[16] Kelly v The Alphabet Academy Sydney Pty Ltd T/A The Alphabet Academy[2017] FWC 3090 at [15]
[17] Witness statement of Tracy Thomas at [5]
[18] Witness statement of Tracy Thomas at [6], Witness statement of Jacob Thomas
[19] Witness statement of Jacob Thomas, Witness statement of Christopher Thomas, Witness statement of Tracy Thomas at [4]
[20] Respondent’s Outline of argument, 1g
[21] Respondent’s Outline of argument, 1h
[22] Form F8, 3.3
[23] Form F2, 3.1
[24] Applicant’s Outline of Argument, 1g
[25] Wilson v Woolworths [2010] WA 2480 at [24-29]
[26] Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
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