Jason Murdoch v BDP Industrial Service Pty Ltd

[2021] FWC 3135

[2021] FWC 3135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Murdoch
v
BDP Industrial Service Pty Ltd
(U2021/910)

COMMISSIONER WILLIAMS PERTH, 1 JUNE 2021

Application for an unfair dismissal remedy.

[1] Mr Jason Murdoch (Mr Murdoch or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is BDP Industrial Services Pty Ltd (the Respondent).

[2] Mr Murdoch’s application says he was notified of his dismissal on 23 March 2020 and the dismissal took effect on the same date. His application was made on 4 February 2021. The application has been lodged more than 21 days after the alleged dismissal took effect and so has been made out of time.

[3] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[4] Consequently, I wrote to the Applicant explaining to him the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[5] The Applicant provided a written response to the Commission’s direction. This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

The Applicant’s submission

[6] In his application Mr Murdoch says he suffered significant mental health issues and bullying throughout the process. He says that significant hardship and depression is a large part of why he has taken quite some time to remedy this issue.

[7] The information provided on the Applicant’s behalf by his representative in response to the Commission’s invitation to provide evidence and submissions includes a medical certificate from Mr Murdoch’s doctor.

[8] The medical certificate signed by Dr Sidhu is dated 26 February 2021 and says that he has examined Mr Murdoch “…who recently lost his job and due to his dermatitis he has panic disorders and hardly go out of the house.” (sic)

[9] The submission says Mr Murdoch suffers from dermatitis, social anxiety and he would rather be secluded than be out in public. It is submitted that a reason why his dermatitis has got worse is stress generated from unemployment and not having any income.

[10] With respect to the termination the submission explains that Mr Murdoch was not aware he was to be dismissed until he returned to Western Australia after a significant family emergency. It is submitted that he was treated with prejudice and was subject to bullying from the employer in question after the dismissal had taken effect.

The reason for the delay

[11] A Full Bench of the Commission in Australian Postal Corporation v Zhang, 1 with respect to medical evidence provided to the Commission considered whether or not there were exceptional circumstances warranting an extension of time to make an application and held at [22] as follows:

“In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”

[12] In this instance nearly 11 months has passed between when Mr Murdoch was dismissed and when he made this application for an unfair dismissal remedy. The medical certificate provided very limited information and does not satisfactorily explain why Mr Murdoch was unable to make this application during such a lengthy period.

[13] Even assuming Mr Murdoch’s medical restrictions existed for the full period of the delay it does not explain why Mr Murdoch could not lodge the application online or alternatively lodge it by telephone at some point over this lengthy period.

[14] Consequently, I am not satisfied that on the evidence before me that the Applicant’s state of health was an acceptable reason for the delay.

Any action taken by the person to dispute the dismissal

[15] Mr Murdoch had filed a prior application for an unfair to remedy, U2020/4321.

Prejudice to the employer (including prejudice caused by the delay)

[16] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[17] The application includes a letter of termination from the employer that refers to COVID-19 and the uncertainty the Respondent is facing with the Western Australian border closed. It states that unfortunately they can no longer keep Mr Murdoch employed. It is clear that the letter involves making Mr Murdoch’s position redundant.

[18] It is not entirely clear why Mr Murdoch believes that decision was unfair however he refers to some background concerning a sick relative interstate being the reason he, prior to his dismissal, had not been at work and the difficulties of the quarantine requirements imposed by the State government.

[19] In this case it is only after a full hearing of the matter would it become clear what the merits of the application are.

[20] Consequently, I view the merits of the application as a neutral factor in deciding whether an extension of time should be granted.

Fairness as between the person and other persons in a similar position

[21] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[22] The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[23] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and must be dismissed.

[24] An order [PR730339] to that effect will be issued in conjunction with this decision.

[25] It has come to the Commission’s attention that Mr Murdoch had filed a prior application for an unfair dismissal remedy, U2020/4321, which concerns the same dismissal by the same Respondent in March 2020.

[26] This prior application was dismissed by Commissioner Bissett on 26 June 2020. 2 Consequently, it is my view that this current application was in any event statute barred by virtue of section 725 of the Act and so for that reason should also be dismissed.3

Final written submissions:

Applicant, 1 March 2021.

Printed by authority of the Commonwealth Government Printer

<PR730338>

 1   [2015] FWCFB 5285

 2   [2020] FWC 3318.

 3   See [2013] FWCFB 2530 at [17].