John Bayot v Caltex Australia Limited

[2020] FWC 5692

[2020] FWC 5692

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Bayot
v
Caltex Australia Limited
(U2020/12577)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 26 OCTOBER 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

Introduction

[1] This decision concerns an application by Mr John Bayot (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant’s employment with Calstores Pty Ltd (Respondent) was terminated by letter dated 24 August 2020. The Applicant accepts that the termination letter was emailed to him on 24 August 2020, but he did not see it or read it until 25 August 2020. In circumstances where the Applicant had been absent from the workplace for some time, was not told or put on notice that an email or communication would be sent to him on 24 August 2020, and he was spending a significant amount of time caring for and being with his ill mother, I consider that the Applicant did not have a reasonable opportunity to become aware of the termination letter sent to him by email on 24 August 2020 until he saw and read the email on 25 August 2020. 1 In the circumstances, I find that the Applicant’s dismissal took effect on 25 August 2020. The unfair dismissal application was lodged on 18 September 2020.

[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 Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 15 September 2020. The application was therefore filed three 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).

[4] 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. 2 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.3

[5] 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.

[6] 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.

[7] 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 consider these matters in the context of the Application.

[8] In deciding the Applicant’s application for an extension of time, I have had regard to the evidence adduced and submissions made at the hearing, by telephone, on 20 October 2020, together with the submissions filed by the Applicant, without leave, on 21 October 2020.

Reasons for the delay

[9] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 4 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.5

[10] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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. 6

[11] The major reason relied on by the Applicant for the delay is the fact that his mother was very ill during the period from his dismissal (25 August 2020) until he filed his application on 18 September 2020. During that time, the Applicant spent about two to three hours a day with his mother in the nursing home where she resides, caring for her, talking to her, and listening to tapes and music with her. Even when the Applicant was not with his mother in that period of time, he was thinking and worrying about his mother, and praying for her. She dominated his thoughts and the prospect of her passing away caused, and continues to cause, the Applicant stress. I accept the Applicant’s evidence about these matters.

[12] The other reasons for the delay relied on by the Applicant include the following:

•  the Applicant had to relocate his life to care for his mother. However, the Applicant accepted in his oral evidence that he moved house in June 2020 to be closer to his mother and he did not move in the period between his dismissal and the date he filed his application;

•  the issue of COVID-19 in relation to the Applicant’s health and his mother’s health. The Applicant explained in his oral evidence that he suffers from chronic asthma and is in constant fear of contracting COVID-19 or his mother contracting it, particularly in her perilous medical condition. The Applicant also submits that the COVID-19 pandemic is not normal, rather the whole world is in the grips of mayhem and the fear of death is extraordinary and exceedingly unusual;

•  the ongoing situation with COVID-19 in relation to the Respondent’s workplace, including in connection with an incident that involved the Applicant. In this regard, the Applicant points to what he says was a lack of care from the store manager of the Caltex store in which he worked during COVID-19, together with the store manager’s insistence on a show cause meeting;

•  the fact that he has been suffering from financial grief as a consequence of his dismissal; and

•  the fact that the Applicant has been terminated from employment he enjoyed.

[13] The Applicant says that all of these circumstances are “overwhelming points that weigh heavily on my mental state and well being. These are the ongoing stress levels…” 7

[14] As to the Applicant’s stress generally, he relied on a letter from his new general practitioner, Dr Lakshmi Kadaba, in the following terms:

“9/10/2020

TO WHOM IT MAY CONCERN

This is to certify that I have today examined:

Mr John Bayot

[address]

WHO IS SUFFERING FROM AS STATED BY MR BAYOT, IS IN STRESSFUL CIRCUMSTANCES. CURRENTLY HIS MOTHER 86, LIVES IN A NURSING HOME IN MONA VALE AND IS VERY ILL. THERE HAS BEEN A UNFAIR DISMISSAL IN HIS WORKPLACE AND IS BEING FOLLOWED UP BY HIS GP IN NEWCASTLE.

HE FAILED TO MEET A DEADLINE TO PURSUE THE ACTION ON 9/10/2020.

HE MAY NEED AN EXTENSION OF TIME TO RESPOND TO HIS AFFAIRS.”

[15] Dr Kadaba is not the treating general practitioner of the Applicant’s mother. The Applicant provided information to Dr Kadaba about his mother’s illness.

[16] The letter from Dr Kadaba is dated 9 October 2020 and refers to Dr Kadaba seeing the Applicant on that day, which is well after the unfair dismissal application was filed on 18 September 2020. The letter from Dr Kadaba corroborates the Applicant’s evidence that he was suffering stress and dealing with stressful circumstances in the period from his dismissal until his unfair dismissal application was filed, but does not state that the Applicant is, or was at any relevant time, suffering from any particular medical condition, nor does it say anything about the Applicant’s capacity or ability to prepare and lodge an unfair dismissal application during the period from 25 August 2020 until 18 September 2020.

[17] The Applicant gave oral evidence, which I accept, that he has been seeing a psychologist in relation to the stress he has been under.

[18] The Applicant’s unfair dismissal application is dated 15 September 2020 and was lodged by him on 18 September 2020. The Applicant gave evidence that he thought he had filed his unfair dismissal application within time. The Applicant answered both ‘yes’ and ‘no’ in answer to question 1.5 in his unfair dismissal application – Are you making this application within 21 calendar days of your dismissal taking effect? The Applicant then explained the reason for his delay as, amongst other matters, the fact that he was “caring for a dying mother with Parkinson disease”.

[19] On 6 October 2020 the Applicant was directed to file a written explanation setting out why he believed his circumstances are exceptional. On 9 October 2020 the Applicant filed a two page submission, together with the letter from Dr Kadaba.

[20] On Friday, 16 October 2020 the Respondent filed and served a five page submission and a two page witness statement by Ms Jessica Shrestha, HR Adviser, in response to the Applicant’s application for an extension of time. Shortly before the extension of time hearing on 20 October 2020, the Applicant filed a five page response to the Respondent’s submissions and witness statement.

[21] The Applicant gave evidence that his mother’s medical condition has not changed in any material way since his dismissal on 25 August 2020, nor has there been any material change in the amount of time taken by the Applicant to care for, spend time with, and think and worry about his mother.

[22] Although I have sympathy for the Applicant, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay. I accept that the Applicant has been under stress from the range of matters identified by him, particularly in connection with his mother’s medical condition and his care for her. However, I am not satisfied on the evidence that the Applicant was prevented or significantly hindered from, or incapable of, preparing and lodging his unfair dismissal application within 21 days of 25 August 2020. There has been no material change since 25 August 2020 in the Applicant’s mother’s medical condition or in the amount of time taken by the Applicant to care for, spend time with, and think and worry about his mother. These are the primary causes of the Applicant’s stress. Notwithstanding this, the Applicant was able to complete his unfair dismissal application by 15 September 2020, prepare and file submissions on 9 October 2020, and prepare and file submissions in reply in the period from 16 to 20 October 2020. That the Applicant was able to prepare these documents in a comprehensive manner suggests that he was able to prepare and lodge his unfair dismissal application within time.

[23] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

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

[24] I have found that the Applicant’s dismissal took effect on 25 August 2020 when he saw and read the letter of termination. The Applicant therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[25] The Applicant accepts that he did not take any action to dispute his dismissal. He says he did not do so because he knew the Respondent wanted to terminate his employment and wanted him out “of the system”. The fact that the Applicant did not taken any action to dispute his dismissal does not weigh in his favour.

Prejudice to the employer

[26] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[27] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[28] The Respondent dismissed the Applicant because he failed to charge two customers for fuel and recorded these incidents as a ‘drive off’. The Respondent also points to the fact that the Applicant had been spoken to in the past about the same failure by him and he was on a written warning at the time of his dismissal for a different breach of policy.

[29] The Applicant concedes that he failed to charge the two customers on the one day, but says it was an honest mistake on a busy afternoon. The Applicant offered to pay for his mistake and points to the fact that he carried out his duties to the best of his ability and provided a high quality service to the Respondent’s customers. The Applicant also contends that the Respondent’s decision to terminate his employment is related to his workers’ compensation claim and his allegations of bullying and harassment against the store manager, which the Respondent investigated.

[30] It is apparent from the material before the Commission that the Applicant’s claim has some merit. He has at least an arguable case that his dismissal was harsh and has raised legitimate points that would need to be examined in detail at a final hearing concerning whether his workers’ compensation claim and/or his allegations of bullying and harassment against the store manager had any impact on the decision to terminate his employment. In all the circumstances, I consider the merits of the Applicant’s claim to weigh in his favour on his application for an extension of time.

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

[31] 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.

[32] The Applicant contends that his store manager, Mr Arjun Malik, showed “favouritism within the workplace to the point of discrimination”. In my view, this is not fairness between persons in a similar position within the meaning of s 394(3)(f) of the Act. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[33] 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 relating to the late filing of the Applicant’s unfair dismissal application. Although it is unusual or uncommon for a person to have their mother in a very serious medical condition and/or for the world to be experiencing a global pandemic, the fact that an employee is under stress from one or more matters in the period following their dismissal is not unusual or uncommon. It would be exceptional if the stress suffered by the person was so substantial that it significantly hindered or prevented them from, or rendered them incapable of, preparing and lodging an unfair dismissal application within time. This is not such a case. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[34] 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). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Bayot on behalf of himself
Mr Marshall on behalf of the Respondent

Hearing details:

2020.
Newcastle (by telephone):
20 October.

Printed by authority of the Commonwealth Government Printer

<PR723859>

 1   Ayub v NSW Trains[2016] FWCFB 5500 at [50]

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

 3   Ibid

 4   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 5   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

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

 7   Ex A3