John Brown v Gem Frame and Truss Services Pty Ltd
[2022] FWC 944
•26 APRIL 2022
| [2022] FWC 944 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Brown
v
Gem Frame and Truss Services Pty Ltd
(U2022/3510)
| COMMISSIONER MCKINNON | SYDNEY, 26 APRIL 2022 |
Application for an unfair dismissal remedy – whether exceptional circumstances – whether additional time should be allowed to make the application – application dismissed.
Mr John Brown was employed by Gem Frame and Truss Services Pty Ltd (Gem) in March 2014. On 21 February 2022, he went on his honeymoon. He had one week of approved annual leave and an agreed return to work date of 28 February 2022. He also had return plane tickets for a two-week trip to Byron Bay via Ballina, returning 4 March 2022.
On 23 March 2022, Mr Brown applied for an unfair dismissal remedy. There is a dispute whether Mr Brown was dismissed. It is not necessary to decide whether Mr Brown was dismissed. There is no dispute that the employment came to an end on 28 February 2022 when Mr Brown was due to return to work and did not. This means his application is late because it was made 2 days outside the statutory 21‑day period for making an unfair dismissal claim.
Extension of time
Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) requires an application for an unfair dismissal remedy to be made within 21 days after the dismissal took effect, or such further period as the Commission allows. A further period can only be allowed if I am satisfied that there are exceptional circumstances, after taking into account certain legislated matters.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[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.” [Emphasis added]
Section 394(3) of the Act sets out the matters that must be taken into account in considering whether there are exceptional circumstances. These are:
the reason for the delay;
whether the person first became aware of the dismissal after it had taken effect;
any action taken by the person to dispute the dismissal;
prejudice to the employer (including prejudice caused by the delay);
the merits of the application; and
fairness as between the person and other persons in a similar position.
Relevant factors
Reason for delay: Mr Brown’s reason for the delay in making the application is that he was affected by the recent flooding in northern New South Wales and could not take action to proceed with his claim any sooner than he did. The stated effects of the flood are: a loss of mobile phone service while staying at his honeymoon venue in Byron Bay from 1 to 4 March 2022; spending time from 1 to 4 March 2022 helping others affected by flooding; closure of the highway to Ballina Airport and the airport itself; and lack of access to legal advice and resources to make the claim while in Byron Bay. I agree that the floods were unprecedented and unforeseeable, but they do not adequately explain the delay in making the application. This is because there is no explanation for what happened after 4 March 2022 when Mr Brown returned to Sydney until 21 March 2022, when the time for making his claim had expired – other than that he was not aware of his entitlement to make a claim for a short period. Contrary to his submission, Mr Brown could have acted earlier than he did to make the application so that it was in time. The flooding in northern New South Wales is not sufficient on its own to warrant additional time being granted.
Whether the person first became aware of the dismissal after it had taken effect: Mr Brown decided on 21 February 2022 that he would not return to work on 28 February 2022. This was for two reasons. He did not want to disappoint his wife by leaving his honeymoon early. Secondly, the costs of returning to work did not outweigh the expected financial loss involved in changing his wedding and/or travel plans. Mr Brown assumed his decision not to return as agreed would mean the end of his employment. The assumption was not contradicted by Gem. So much is clear from the text message he sent to his supervisor Adam Fraser that day and the absence of any evidence of Mr Fraser’s response.
Any action taken by the person to dispute the dismissal: Mr Brown did not seek to challenge the dismissal until 23 March 2022 when the application was filed.
Prejudice to the employer (including prejudice caused by the delay): There is no more prejudice to Gem if the application were allowed to proceed than if it had been made in time.
Merits of the application: Mr Brown says his dismissal was unfair because he was put in the position of having to choose between his honeymoon and his job. On the face of the record, this is not an entirely fair characterisation of the facts. Mr Brown knew in August 2021 that his wedding would be in February 2022. Mr Brown sought approval for two weeks’ annual leave on 11 February 2022, approximately one week before the wedding and at a very busy time for the business. His request for two weeks leave was not approved. Instead, Mr Brown and his supervisor Adam Fraser agreed on one weeks’ leave, with Mr Brown to return on 28 February 2022.
Mr Brown went on his honeymoon on 21 February 2022. Later that day, he advised Mr Fraser that he would not return to work on 28 February 2022 as agreed. In the same message he communicated his assumption that this would mean the end of his employment. Upon his return to Sydney on 4 March 2022, Mr Brown did not return to work and neither party took steps to engage with each other about further work. In other words, the documentary evidence suggests that Mr Brown made a conscious choice not to return to work and was not dismissed. If proven, this would mean Mr Brown is not eligible to make an unfair dismissal claim. It would also mean that the fairness of the situation generally, having regard to matters such as his long period of service, proportionality (whether the ‘punishment fits the crime’) and his period out of work could not be considered by the Commission.
Fairness as between the person and other persons in a similar position: This is not a relevant consideration in the case.
Conclusion
There are exceptional circumstances in this case to the extent that Mr Brown was affected by the floods in northern New South Wales in the second week of his honeymoon. He had limited or no mobile phone service for three days from 1 to 4 March 2022 and had to change his flight home. Despite these circumstances, I am not persuaded that additional time should be allowed to Mr Brown to make his application.
Mr Brown was aware that he could make an unfair dismissal claim shortly after he returned from his honeymoon on 4 March 2022. He took no steps to do so until 23 March 2022. Had he acted even two days earlier, the application would have been in time. There is no adequate explanation for this lack of action in the period from 5 to 23 March 2022. Further, the merits of the case are not strong and none of the other relevant matters persuade me that an extension of time is warranted.
The application is dismissed.
COMMISSIONER
Appearances:
J Brown on his own behalf.
N Watson for the Respondent.
Hearing details:
2022.
Sydney (video):
26 April.
[1] [2011] 203 IR 1 at [13].
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