K v The Employer

[2021] FWC 6097

[2021] FWC 6097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

K
v
The Employer
(U2021/8089)

COMMISSIONER BISSETT MELBOURNE, 20 OCTOBER 2021

Application for an unfair dismissal remedy – extension of time – exceptional circumstances found – no utility in granting extension of time – extension of time not granted – application dismissed

[1] Mr K 1 (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 the Employer (Respondent).

[2] The information provided in the application indicates that the application has been made out of time.

[3] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

PRELIMINARY MATTERS

Submissions

[4] The Applicant filed submissions in the Commission on 26 and 27 September 2021. The Respondent filed submissions in the Commission on 5 October 2021

Witnesses

[5] The Applicant gave evidence on his own behalf.

When did the dismissal take effect?

[6] It is not in dispute and I find that the dismissal took effect on 21 December 2020.

When was the application made?

[7] It is not in dispute and I find that the application was made on 6 September 2021.

Conference or hearing

[8] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

[9] 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 conference for the matter (s.399 of the FW Act).

[10] The Applicant represented himself. The Respondent was represented by a lawyer for whom permission had been earlier granted by me for this matter.

Permission

I have previously granted the Respondent permission to be represented by a lawyer pursuant to s.596(2) of the FW Act.

WHEN MUST AN UNFAIR DISMISSAL APPLICATION FOR BE MADE?

[11] Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

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

(b) within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

[12] 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.” 2

[13] As I found above, the dismissal took effect on 21 December 2020. The final day of the 21 day period was therefore 11 January 2021 and ended at midnight on that day. The application was made on 6 September 2021, 238 days after the end of the 21 day period.

[14] The application was therefore not made within 21 days of the date on which the dismissal took effect. It is necessary to consider whether an extension of time should be granted within which the application may be made.

SHOULD THE COMMISSION GRANT AN EXTENSION OF TIME?

[15] 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.

[16] Each of the above matters must be considered in assessing whether there are exceptional circumstances. 3

[17] I set out my consideration of each matter below. However, in this case there are further circumstances that I consider must also be considered. These are outlined in the history following and have been considered by me in reaching my conclusion.

History

[18] Prior to considering the matters in s.394(3) of the Fair Work Act 2009 (FW Act) it is necessary to set out the history in relation to this matter.

[19] Following his dismissal on 21 December 2020 the Applicant made an application to the Commission seeking a remedy for unfair dismissal (the first application) 4. The first application was made within time and was allocated to Commissioner Platt to hear and determine. As part of that process Commissioner Hampton conducted a conciliation to see if he could assist the parties in resolving the dispute.

[20] During the conciliation before Commissioner Hampton the parties reached an agreement. The details of that agreement and that the agreement was accepted was put on the record at the conclusion of the conciliation.

[21] Subsequent to the conciliation and the agreement to settle the dispute being reached the Applicant applied to have his application heard. This was dealt with by Commissioner Platt who issued a decision 5 in which he dismissed the unfair dismissal application on the grounds that it had no reasonable prospect of success because a binding settlement agreement had been reached.6

[22] The applicant lodged 2 appeals against the decision of Commissioner Platt. These appeals were heard together. The Full Bench subsequently issued a decision 7 in which it declined, for the reasons stated, to grant the Applicant permission to appeal.

[23] Subsequent to the appeal the Applicant has made numerous applications to the Commission. To date each of those applications that has been considered have been dismissed, primarily because the applications were made in relation to bargaining in circumstances where the Applicant is not engaged in bargaining with the Respondent. 8 An application made to set aside the decision of the Full Bench was also dismissed. Other applications made by the Applicant have been discontinued by him.

[24] On receipt of this application, which is in relation to the same dismissal dealt with by Commissioner Platt and the Full Bench, it was apparent that there were two obvious issues with it. The first being that it was made outside the statutory 21-day period and second that the application in relation to this dismissal had already been heard and determined by the Commission. In this respect the application currently before the Commission seeks to reagitate a matter that has already been determined to finality.

[25] Ultimately, and in circumstances where the Applicant is self-represented and after hearing from each of the parties, I decided to hear the extension of time matter first. If the Applicant is successful in having his application accepted the issue of the finality of proceedings and the existence of the binding settlement agreement found to exist in relation to the one dismissal can be dealt with.

[26] The consideration of the application for an extension of time cannot be divorced from the history in relation to the dismissal and applications that have followed.

Reason for the delay

[27] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 11 January 2021. The delay is the period commencing immediately after that time until 6 September 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay. 9

[28] 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. 10

[29] 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. 11

Submissions and evidence

[30] In his written submissions and in response to questions from the Bench the Applicant said that the delay was for the following reason:

•  His first application for unfair dismissal (U2021/252) was filed within time but it was not dealt with properly by the Commission

•  His first application was made for him by the Shop, Distributive and Allied Employees Association (SDA), he was not aware of its contents and he expected the SDA to properly represent him

•  He was advised he could make written submissions and does not understand why his matter has not been heard

•  He has falsely been accused of sex crimes

•  His procedural requests were repeatedly ignored contrary to s.590 of the FW Act

•  The merits of his claim have not been heard

•  He was misled by the Commission as to whether a complaint had been received by the Commission about him

•  He was hospitalized for 3 weeks in July 2021 with mental health issues

•  He understood that making this application was a means by which the approach adopted by Commissioner Platt and the subsequent Full Bench decision could be ‘appealed’

•  The hearing before Commissioner Platt and the appeal took until 12 August 2021 to be determined

[31] Further, in his application for remedy for unfair dismissal (Form F2) the Applicant said, of the reason for not having made his application within 21 days (which, for completeness, I set out in full):

•  The Commission made numerous, inexcusable errors during all of my hearings

•  Thought it was an “act” that I was willingly taking part in

•  Disregarded valid and prudent submissions made early on, then blamed me for not making them, after I had given the commission evidence that I had in-fact made those submissions

•  Commission has not treated me or my issue seriously or with respect

• 

[32] In relation to the reason for the delay, the Respondent submitted that:

•  The Applicant did make an application within time. The application for unfair dismissal was subsequently dismissed by Commissioner Platt on the grounds that a binding settlement agreement was reached

•  The filing of a new application is not the means by which the decision of Commissioner Platt can be challenged in relation to the dismissal but in any event the Applicant did appeal the decision of Commissioner Platt and the appeal was dismissed

•  The reasons given by the Applicant are not credible or a reasonable explanation for the delay of 238 days

Findings

[33] Having regard to the submission I find that the reason[s] for the delay in making the application are that the Applicant is seeking to re-agitate an application (U2021/252) which has already been determined and dismissed by the Commission and where permission to appeal that decision was refused (noting that the first application was dismissed because there was a binding settlement agreement reached by the Applicant and Respondent). Further, the Applicant does not believe he was given an opportunity to make submissions or cross examine witnesses in relation to matters he considers are associated with his dismissal. The first application was dismissed by Commissioner Platt on 19 April 2021 and the appeals dismissed on 12 August 2021, and this is now his opportunity to have the perceived unjustness of those matters resolved by further hearing.

Did the Applicant first become aware of the dismissal after it had taken effect?

[34] The Applicant alleges that he first became aware of the dismissal around November 2020 but agrees that he was aware of his dismissal on 21 December 2020.

Findings

[35] In all the circumstances I am satisfied and find that the Applicant became aware of the dismissal after the dismissal came into effect. I have not had regard to the submissions of the Applicant in relation to bargaining as this application is not in relation to bargaining and the Applicant is not involved in bargaining as provided for the FW Act with the Respondent.

What action was taken by the Applicant to dispute the dismissal?

[36] The Applicant says that he took various steps to dispute his dismissal including complaints to:

•  Commonwealth Ombudsman

•  Attorney General and State Attorney

•  Members of Parliament

•  Human Rights Commission

•  Fair Work Commission (the first application and others)

•  Magistrates’ Court

•  Respondent (by email to the State manager for the Respondent)

[37] The Respondent agreed that the Applicant has made a substantial number of claims in the Commission in which he sought to agitate matters associated with his dismissal. However, it says that given the Applicant made the first application and appealed the decision in relation to the first application, this should weigh against the granting of an extension of time.

Findings

[38] Having regard to the matters I have referred to above, I am satisfied the applicant has sought many avenues of redress for his dismissal. It is not the case however that he was unduly delayed by any of those processes (except for his view of the Commission processes and the delay in finalising his application before Commissioner Platt and the related Full Bench).

What is the prejudice to the employer (including prejudice caused by the delay)?

Submissions and evidence

[39] The Respondent submits that it would suffer prejudice if an extension of time was granted.

[40] Specifically, the Respondent submits that, if an extension of time were granted, it would suffer the following prejudice:

•  It has already spent considerable time and incurred costs in dealing with the multiple applications of the Applicant to the Commission and to have to further deal with this application would add to that

•  The Respondent has entered into a binding settlement agreement with the Applicant in relation to the first application for which the Respondent has paid a ‘not insignificant consideration’

•  It would be faced with further time and expense to deal with a matter already fully determined

[41] The Applicant gave evidence and submitted that the Respondent is bound to act lawfully and that, if there is any prejudice caused by the delay, this was of the Respondent’s own making and the Applicant should not be disadvantaged by this.

Findings

[42] I am satisfied in this case that there is prejudice to the Respondent that will accrue if the extension of time is granted.

[43] The Respondent has already dealt with the first application in relation to the same set of facts that led to the dismissal. The first application was subject to conciliation where it settled. The Respondent has complied with the terms of settlement. It would be unfair to require the Respondent to have to deal with an unfair dismissal application in relation to the same dismissal where it may face further penalty (through a remedy) when it considers the matter settled.

[44] I am also satisfied that there is prejudice (unfairness) to the respondent caused by the delay. Should this application proceed to hearing (if the extension of time was granted) it would be close to 12 months since the matters relied on by the Respondent for the dismissal occurred. The determination of facts will rely on the recall of witnesses of discussions and specific events on specific dates and where those witnesses have understood the matter was settled. Having understood this it is plausible that witnesses have put the events out of their minds and their ability to give accurate evidence would be adversely effected. 12

[45] While the cost of defending the claim would ordinarily not be a relevant consideration, in this case the Respondent will have to defend the claim again in circumstances where it has firstly already spent time and money attending the first conference and hearing of the first application and second, dealt with multiple applications in the Commission by the Applicant since the first application.

What are the merits of the application?

[46] The competing contentions of the parties in relation to the merits of the application are set out in the materials filed in this and the first application.

Submissions

[47] Ultimately, it appears that the Applicant’s concern is that he was treated unfairly and differently to others in the workplace in that he submits that others retained and, in some cases, were rewarded in their employment in circumstances where he was dismissed because of bad faith complaints made by those others. He submits that his dismissal came about because he was falsely accused of sex crimes where other employees made ‘outrageous’ claims that he ‘wanted to be fired’. Further, he says that his relationship with a person was ‘leveraged’ to get him out of employment and others have benefited financially by supporting the actions of the Respondent.

[48] The Applicant clearly desperately wants his job back.

[49] The Applicant also says that there is an obligation on the Commission to disclose the extent of an agreement reached. He says that when he did reach agreement he did not know what he was agreeing to and was ‘forced into’ the agreement and the earlier decisions of the Commission in relation to the first application should, for this reason, be disregarded.

[50] The Respondent submits that the application is beyond merit but that, in any event, it cannot succeed as the Applicant entered into a binding settlement agreement on the first application which is a bar to any further proceedings as it contained a release clause. In any event the Respondent submits that the Applicant was dismissed for a valid reason and the dismissal was procedurally fair.

Findings

[51] 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)” 13 and the same applies to s.394(3)(e).

[52] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

[53] I have, however, taken into account the decision of Commissioner Platt and the subsequent Full Bench to the extent it effects the ability of the Commission to even consider the merits of the application.

[54] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

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

Submissions

[55] The Applicant suggested I have regard to the decision in Geselle v Department for Health and Wellbeing (Geselle) 14 a decision of the South Australia Employment Tribunal handed down on 3 September 2021. The Applicant says that, in that matter, the Applicant had her matter heard and determined three years after her dismissal. He submits that he is in a similar position and so, should have his application heard and determined.

Findings

[56] I am not satisfied that the decision in Geselle is of assistance to the Applicant. In that case it took 3 years from the time the application was made for the matter to be finalised by decision. The applicant in Geselle was not late in making her application. In this case it has taken the Applicant 238 days to make his application. There is nothing to be gained by a consideration of the decision in Geselle.

Prior application for unfair dismissal

Submissions

[57] The Applicant says that I should not have regard to the first application he made in relation to the same dismissal because he reasonably expected that the heart of the issue would be considered and dealt with by Commissioner Platt and/or the Full Bench and this did not occur. Further, the Applicant submits that he was ‘misled’ in the conciliation before Commissioner Hampton, that he was forced into accepting the agreement and the content of the agreement he made was not disclosed to him. He says that the Commission is required to act judicially and, in dealing with his application, it did not so act.

[58] The Respondent says that the existence of the binding agreement, its compliance with the terms of that agreement and the associated decisions of Commissioner Platt and the Full Bench are such that the Commission proceedings in relation to the dismissal of the Applicant by the Respondent is concluded.

Findings

[59] I am aware that the Applicant disputes that he entered into a binding settlement agreement with the Respondent. However, it has been determined by the Commission that he did just that. In the decision in Mr K v The Employer 15 Commissioner Platt, on considering the transcript in relation to the terms of the settlement reached between the parties before Commissioner Hampton, said:

[23] It is clear that the parties agreed that:

•  Mr K would be paid $22,824.24 gross (to be taxed in accordance with the law);

•  the net amount would be paid into Mr K’s bank or financial account within 14 days;

•  the employment would be regarded as ceasing by way of resignation;

•  a statement of service would be provided by the Employer;

•  the terms of settlement would be confidential; and

•  Mr K released the Respondent from all claims arising from the employment and the dismissal except for workers compensation and/or superannuation claims.

[24] Mr K’s acceptance of that agreement is evident from the following exchange with Commissioner Hampton:

“So they are the terms that I have noted.  They are the terms that I have communicated between you.  And my understand is that that then represents a resolution.  So Mr K, can you confirm that is the case?

MR K:  I confirm that's the case, Commissioner.”

[25] I find that the parties reached a ‘binding settlement.’ There is no suggestion that it was the product of fear, force or fraud.

[26] As a result of my finding that a binding settlement had been reached in the terms contained in the transcript, and that inter alia the Agreement prevents the continued pursuit of Mr K’s s.394 application, I find that the substantive application has no prospects of success, and I exercise my discretion pursuant to s.587 to dismiss that application.

[27] In my view, the terms of the binding settlement are clearly contained in the transcript and no further document need be prepared and as such, the parties should implement the agreed terms without delay.

[60] The Applicant appealed this decision twice. The Full Bench considered those appeals together. The Full Bench summarised the grounds of appeal as follows:

[6] The Appellant appealed on general grounds such as that ‘This was an absolute abuse of power and process by the Respondent, this was unlawful, sexist, discriminatory and clearly bullying.’ In relation to the public interest the Appellant made again general comments about the alleged inappropriate nature of his dismissal such as ‘How can it possibly be in the publics best interest to persecute and exploit people over their sex lives, religious beliefs, for the sake of a good story and publicity, at their place of employment.’ The appeal grounds did not refer to any specific aspect of the decision under appeal.

[7] The Appellant made different but again general allegations in a second appeal document, which was out of time, lodged on 5 July 2021. Even if we extended time to receive the second appeal this would not make any difference to the proceedings, given the general nature of the alleged appeal grounds and this decision. [End note omitted]

[61] Having considered the arguments put by the Applicant the Full Bench concluded:

[14] We have had full regard to the Appellant’s submissions and appeal grounds. In those submissions the Appellant makes a number of complaints about the conduct of the Respondent and others including the alleged unfairness of his termination. However, this is not a hearing of the alleged unfairness of the Appellant’s termination. The present matter concerns an appeal against a decision that the Appellant had entered into a binding settlement of the matter.

[15] The decision under appeal sets out the relevant law, the circumstances of the matter, how an agreement was reached, the nature of the agreement, and quotes the Appellant endorsing the agreement:

“So they are the terms that I have noted. They are the terms that I have communicated between you. And my understand is that that then represents a resolution. So Mr K, can you confirm that is the case?

MR K: I confirm that's the case, Commissioner.”

[16] Little or no attempt was made to challenge the actual decision under appeal and to demonstrate that there was a public interest that should persuade us to grant permission to appeal, having regard to issues of fact or law. The Notices of Appeal and submissions, written and oral, do not identify any matter which satisfies the public interest test.

[17] Voluminous material was provided by the Appellant which the Full Bench has considered. Regrettably, the material filed by the Appellant does not address the issue at the heart of this appeal.

[62] It seems to me that this brought the litigation of the Applicant in relation to his unfair dismissal claim to an end in the Commission. Any further consideration of a claim of unfair dismissal in the Commission would inevitably result in it being dismissed pursuant to s.587 of the FW Act for the reasons given in Grabovsky v United Protestant Association NSW Ltd. 16 To the extent the applicant says that he has not had a chance to put his case he chose to settle his application and, in doing so, not proceed further. Commissioner Platt considered the Applicant’s claim and dismissed it because of the settlement agreement.

[63] I would also observe that, on 23 August 2021, the Applicant made a further application to the Commission pursuant to s.603 of the FW Act in which he sought the revocation of the decision of Commissioner Platt. Deputy President Clancy dismissed that application on 2 September 2021. 17

[64] The Applicant may consider that he did not reach a binding settlement agreement with the respondent but the Commission has found otherwise and this was confirmed on appeal. As I have explained to the Applicant, a further application in relation to the same dismissal cannot overturn the decision of Commissioner Platt or that of the Full Bench.

ARE THERE EXCEPTIONAL CIRCUMSTANCES?

[65] I must now consider whether I am satisfied that there are exceptional circumstances taking into account my findings set out above in each of s.394(3)(a)-(e) of the FW Act.

[66] 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. 18 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.19

[67] I accept that the circumstances I have outlined above are unusual and out of the ordinary. They are truly rarely encountered. Parties generally accept the findings of the Commission or, if satisfied an error has been made and appeal, the decision of a Full Bench. Any further action is pursued in the Federal Court. Matters are rarely pursued, in my experience, by the making of a new application covering the same matter. That the Applicant has done so in this case is indicative of his sense of being unjustly treated.

[68] I would add however that it is not an unusual circumstance to have reached a settlement agreement or for the Commission to have found that such an agreement has been reached.

[69] Having regard to all of the matters set out in s.394(3) of the FW Act and the first application, I am satisfied that there are exceptional circumstances.

CONCLUSION

[70] Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made. Notwithstanding that I am satisfied that there are exceptional circumstances, I am not satisfied that it is appropriate for me to exercise my discretion to extend the period for the application to be made. Having found that exceptional circumstances exist does not mean that the Commission must grant an extension of time. The opening words of s.394(3) say that the Commission may grant an extension of time if it is satisfied that there are exceptional circumstances taking into account those matters in s.394(3)(a)-(f). If it was that the finding of exceptional circumstances required the granting of an extension of time it could be expected that the word ‘must’ would have been used.

[71] Given the circumstances I have outlined in the history and in relation to the first application I am satisfied that there would be no utility in granting an extension of time. The unfair dismissal application cannot succeed as it has been settled through a binding agreement as found by Commissioner Platt and confirmed by the Full Bench. An application before me could not overturn either of those decisions.

[72] In concluding this matter I should observe that the Applicant made a number of unsubstantiated statements in his evidence and submissions with respect to the conduct of Members and staff of the Commission and of the conduct of the Respondent. There was no evidence as to any of the assertions so made and I did not have regard to them in reaching my findings or conclusions.

[73] For these reasons an extension of time within which the application for unfair dismissal may be made is not granted. The application for a remedy for unfair dismissal is dismissed as it was filed outside the statutory time limit imposed by the FW Act. An order 20 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr K appeared on his own behalf.

Ms L O’Keeffe of MinterEllison for the Respondent.

Hearing details:

8 October 2021.
Melbourne, by video.

Printed by authority of the Commonwealth Government Printer

<PR734757>

 1   The parties have been anonymised in this decision for the purpose of maintaining confidentiality of a settlement agreement between the parties

 2   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

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]

 4   In matter U2021/252

 5   [2021] FWC 2132

 6   Ibid at [26]

 7   [2021] FWCFB 3162

 8   [2021] FWC 5489, [2021] FWC 5610 and [2021] FWC 5611

 9   Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12]

 10   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39]

 11   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40]

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

 13   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36]

 14   [2021] SAET 167

 15   [2021] FWC 2132

 16   [2019] FWCFB 1964 at [26]

 17   [2021] FWC 5489

 18   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13]

 19   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13]

 20   PR735029