Kevin Allan Bentley v Department of Finance
[2024] FWC 754
•22 MARCH 2024
| [2024] FWC 754 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kevin Allan Bentley
v
Department of Finance
(U2024/1078)
| COMMISSIONER SCHNEIDER | PERTH, 22 MARCH 2024 |
Application for an unfair dismissal remedy
Mr Kevin Allan Bentley (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Department of Finance (the Respondent).
The Respondent objects to the application on the grounds that it appears to have been lodged outside of the statutory timeframe. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
A Hearing regarding the out of time issue was held. At the Hearing, the Applicant gave evidence on his own behalf. The Respondent did not present any witnesses.
Dismissal date
Relevant Law
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“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.
…(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)…”
As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
The parties are in dispute about when the dismissal took effect.
Submissions and Evidence
The Applicant sent emails to Chambers on 26 February 2024 and 7 March 2024.
The emails provided by the Applicant, on 26 February and 7 March 2024, primarily focused on the below items:
· The Applicant submits that he was a properly appointed Workplace Health and Safety Representative.
· The Applicant submits that he raised allegations of workplace bullying and harassment on behalf of other team members at a Workplace Health and Safety Committee meeting.
· The Applicant submits that an independent third-party review and investigation of the complaints raised should occur.
· The Applicant submits that he was bullied by the Respondent when issued a formal warning for raising the above complaints.
· The Applicant submits that he should be reinstated to his employment.
· The Applicant submits that witness evidence in relation to his concerns over the Respondent’s alleged breaches of the Workplace Health and Safety regulations might be available for the hearing.
The Applicant did not provide any detailed submissions that relate to the criteria under section 394(3) of the Act (other than the merit consideration).
In order to allow a further chance to provide submissions relevant to consideration of the objection, the Applicant was afforded a further opportunity to provide materials, before 11 March 2024.
The Applicant did not file any additional materials for consideration.
The Respondent filed submissions on 13 March 2024.
The Applicant, in his F2 Application Form, made the following statements in relation to the date of his termination:
· Was the Applicant told about being dismissed? No
· When did the Applicant’s dismissal take effect? I don’t know the exact date.
At the hearing before the Commission on 15 March 2024, the Applicant gave the evidence stating that he did not believe that he had been dismissed in accordance with required policy or procedure.
The Applicant, while giving evidence before the Commission on 15 March 2023, was asked repeatedly about the communication from the Respondent on 19 and 20 December 2023 and if he understood and acknowledged that this was the Respondent terminating his employment. I found that Applicant’s answer to this question was lacking in authenticity and evasive.
Having reviewed the email evidence provided by the Respondent, combined with the evidence of the Applicant at the hearing, I have reservations about the overall credibility of the evidence of the Applicant.
The Respondent submits that the Applicant was a casual employee, and that he was dismissed on the morning of 19 December 2023 in writing. The Respondent submits that it informed the Applicant, by email, that he would not be offered any future work with the Respondent.
The Respondent acknowledged that, on the evening of 19 December 2023, the Applicant emailed the Respondent seeking a copy of the letter which had been provided in word format. The Respondent provided a copy of the letter in word format on 20 December 2023.
The Applicant’s email, sent on 19 December 2023, states:
“You are now clearly guilty of an offence under the workplace health and Safety Act and it is clearly my intention that you will be prosecuted accordingly”.
In the same email, the Applicant writes “I am having trouble downloading it in Adobe”. However, from the statement made by the Applicant (outlined above), it would appear he was aware his employment had been terminated.
Despite the Applicant’s opinion that his dismissal was not consistent with standard police and procedure, he did not provide any detailed submissions on this point or provide a copy of the allegedly contravened policy or procedure.
Consideration
The Respondent, in their communication to the Applicant on 19 December 2023, stated:
“I am writing to inform you that it is my final view that COMCAR will no longer consider you for future offers of work and will remove you from the COMCAR roster effective from the date of this letter.”
The Applicant was employed on a casual basis. The above statement, sent to the Applicant on 19 December 2023, clearly indicates that the Applicant’s employment had been terminated at the initiative of the Respondent.
On assessment of the evidence above, I find that the Applicant understood the communication from the Respondent on 19 December 2023 to be a termination.
Having regard to the matters I have referred to above, I find that, in all probability, the Applicant was aware that his employment had been terminated effective 19 December 2023 by, at the very latest, 20 December 2023.
Noting the relevant authorities regarding communication of a dismissal,[3] I am satisfied that the Respondent communicated the dismissal to the Applicant on 19 December 2023 by email and the Applicant had reasonable opportunity to actually read the document on that date. Nevertheless, if the dismissal was in fact communicated on 20 December 2023, noting the Applicant’s subsequent request for a different file type, the application would still be rendered out of time and my conclusion in this decision would not be altered.
Therefore, for the purpose of this decision, I find that the date of termination was 19 December 2023, being the same day it was communicated.
As I found above, the dismissal took effect on 19 December 2023. The final day of the 21-day period was therefore 9 January 2024 and ended at midnight on that day. It is a matter of record that the application was made on 1 February 2024.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Extension of time
Relevant law
Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made.
The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.
Section 394(3) of the Act lists the considerations the Commission must take into account:
“394 Application for unfair dismissal remedy
….
(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.”
The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted in the given circumstances.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[4]
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[5]
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.[6]
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.[7]
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.[8]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[9]
This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.
Consideration of Criteria
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 10 January 2024. The delay is the period commencing immediately after that time until 1 February 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[10]
The Applicant submits the following as reasons contributing to the delay:
· The Applicant attempted to agitate action against the Respondent related to work health and safety concerns with Comcare, and states that he repeatedly sought that Comcare prosecute the Respondent.
· The Applicant was unaware of the timeframe for lodgment, and states that the Respondent did not properly provide induction training regarding his rights under the law, nor did he receive any information relating to the functions and requirement of the Commission.
The Applicant failed to provide any documentary evidence in support of his attempts to pursue action through Comcare. This is in spite of the Commission affording the Applicant an additional opportunity to file materials and being reminded of the relevance of such materials in reference to the matters to be determined:
“The hearing in your matter next Friday is in relation to the jurisdictional objection raised by the Respondent (that you filed out of time).
As per the directions issued on 26 Feb 2024, your submissions should be focused on these issue rather than the full merits of your application.
The Commissioner has agreed to provide you until close of business on Monday 11 March 2024, to provide an updated/revised submissions in relation to the jurisdictional objection.”
The Applicant submits that, after trying to get an answer from Comcare for a significant period of time, he was advised that the Fair Work Commission might be the most appropriate avenue to challenge his dismissal. Again, no supporting evidence was adduced by the Applicant.
When prompted on what day he believed his dismissal had occurred, the Applicant submits that he spoke to someone at the Commission who advised that, for our purposes, the final day of his employment would be the final date he worked. Assessment of the Commission’s records indicate such comments were made after the application had been lodged, noting the Applicant’s statement of “I don’t know the exact date” when prompted for his dismissal date on the application form – likely leaving the Commission’s registry staff with incomplete information to assess whether to flag the application as potentially out of time and appropriately allocate the file further.
The Respondent submits that the Commission should not consider the Applicant lodging a complaint with Comcare as satisfactory reason for delay. The Respondent submits that the Applicant’s purpose in contacting Comcare for action against it related to work health and safety issues and is not the same as seeking to dispute his termination of employment.
The Respondent opines that there was nothing preventing the Applicant from filing his application with the Commission whilst still awaiting a response from Comcare. The Respondent noted communication from the Applicant, dated 11 December 2023, in which he foreshadowed his intention to pursue the Respondent for wrongdoing with both Comcare and the Commission.
The Respondent submits that the Applicant’s decision to await action from Comcare is not reason to delay filing his application, rather it is simply a decision made by the Applicant of his own free will and noted that it was open to the Applicant to make steps to lodge both actions simultaneously.
The Respondent submits that the functions of Comcare and the Commission are, although concerned with matters of employment, distinct and hold markedly different roles and powers conferred unto them by separate statutes.
The Respondent also notes the Applicant’s initial comments in response to the out of time issue being raised:
“Firstly I was simply unaware of the requirement to lodge an application within twenty one days. I was never provided with any sort of proper induction training program when I joined COMCAR to make me fully aware of my rights under the law. I have never received any information from them relating to the functions and requirements of the Fair Work Commission.”
The Respondent submits that the Applicant was familiar with the requirements of the Commission, as the Applicant had previously filed an unfair dismissal application against the Respondent in July of 2019.
The Respondent also submits that, on 11 December 2023, after the Applicant had been sent a show cause letter, the Applicant made the following statement in email:
“…Should you do so we will also move action in the fair work commission for unfair dismissal. You should be well aware that you cannot dismiss people without going through an appropriate process showing proper cause in relation to their employment and yet I am now the second to be treated in our depot in a few months.
Please send the letter in word as soon as possible as I would wish to expedite these processes through COMCARE and Fair Work Commission as soon as possible” (emphasis added).
Having regard to the above, I am not satisfied that the reasons put forth would understandably contribute to any delay in filing.
The Applicant is clearly an intelligent individual who is capable to understanding and digesting information as it pertains to the work health and safety statutory framework. It also appears that the Applicant is familiar with the Commission’s processes, to an extent, having lodged a matter of exactly the same type as this current matter in 2019. Further, the possibility of lodging an application with the Commission was plainly apparent to the Applicant and, from assessment of the evidence, clearly under consideration prior to his dismissal.
I agree the submission of the Respondent that there is no reason why the Applicant, as he had foreshadowed prior to his termination, could not simultaneously pursue any cause of action he wished in response to the issues impacting his employment.
It is understandable that applicants may wish to pursue other forms of action or seek further advice prior to lodging their application - or may merely be busy pursuing another claim of some type which leads to a delay in preparing their application. However, delaying for these reasons, depending on the circumstances of the matter, may not be satisfactory for the purposes of considering an extension. In this matter, I am not satisfied the Applicant’s submissions regarding his attempts to take action through Comcare are an acceptable reason for delay and I am not satisfied that this criterion lends in favour of exceptional circumstances.
Finally, I note the Applicant’s previous statement regarding his ignorance of the time limit to file and the function of the Commission. I have reservations over the accuracy of this statement by the Applicant, noting his threats of action prior to his dismissal and his previous application of the same type. Regardless of the accuracy of such assertion, it should be noted that the Commission has found ignorance of the 21-day filing period is not an exceptional circumstance.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant made allegations that he had not been dismissed in accordance with the applicable policy or procedure.
The Applicant gave evidence that he received communication from the Respondent on 19 and 20 December 2023 regarding the dismissal. The Applicant may hold the opinion that the Respondent did not correctly execute his termination, this does not detract from the fact that the communication from the Respondent was clear in its message – the Applicant was being dismissed.
As I have considered previously in this decision, the Applicant was notified of his dismissal on 19 December 2023 on the same day it took effect and, as discussed earlier, even if technical issues caused some level of hindrance, the Applicant was clearly aware of his dismissal by no later than 20 December 2023.
In summary, I am not satisfied that the Applicant only first became aware of the dismissal after it took effect and, if I have erred, in the event the communication took place on 20 December 2023 – the application would still not be within time.
What action was taken by the Applicant to dispute the dismissal?
The Applicant notes his attempts to pursue action through Comcare.
On this item, I note the Respondent’s submission regarding the function of Comcare and the alleged purpose of the Applicant contacting that agency. Any action as a result of the Comcare contact would not be a disputation of the Applicant’s dismissal, nor would Comcare assess the dismissal in the manner of this current application.
Accordingly, although I take note of the Applicant’s apparent attempts to take action following his dismissal, I am not satisfied that the Applicant contacting Comcare in the manner described is an attempt to dispute the dismissal.
What is the prejudice to the employer (including prejudice caused by the delay)?
I am satisfied that there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
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)”[11] and the same applies to section 394(3)(e) of the Act.
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.
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
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reason for the delay, not being satisfied that the reasons put forth by the Applicant are satisfactory excuses alone for the delay;
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the lack of action to dispute the dismissal but noting the Applicant’s attempts to otherwise pursue the Respondent for apparent wrongdoing.
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
Briefly, to reiterate, 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.[12] 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.[13]
As I have outlined previously in this decision, the reasons put forth by the Applicant as having contributed to the delay are inconsistent with the evidence before the Commission that outlines the Applicant’s intentions and actions prior to his dismissal.
When provided with a show cause letter, the Applicant clearly articulated to the Respondent his intention to take action against the Respondent with specific reference to two government agencies, the first being Comcare and the second being the Commission. The Applicant has not provided any sound and logical reasoning for why he waited to file his application with the Commission, nor has he provided anything to show he was unable to file within time.
Having considered the evidence before the Commission, it appears that, in all probability, the Applicant was aware of the 21-day filing requirement and only sought to lodge this application before the Commission after it became apparent that Comcare would not take the action he hoped for.
In any event, the Applicant’s self-proclaimed ignorance of the 21-day filing requirement is not a reasonable excuse for delay.
None of the criteria, alone or combined, in the circumstances of this matter, lead me towards a finding of exceptional circumstances.
Conclusion
Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed.
An Order dismissing the matter has been issued.[14]
COMMISSIONER
Appearances:
K Bentley, Applicant.
C Mann of Australian Government Solicitor for the Respondent.
Hearing details:
2024.
Perth (by video):
March 15.
[1] [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.
[2] [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; [2015] FWCFB 1877.
[3] [2016] FWCFB 5500, [42].
[4] [2018] FWCFB 901, [39].
[5] [2011] FWAFB 975, [13].
[6] Ibid.
[7] [2018] FWCFB 901, [39].
[8] Ibid, [40].
[9] Ibid, [17].
[10] [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[11] [2011] FWAFB 975, [36].
[12] [2011] FWAFB 975, [13].
[13] Ibid.
[14] [PR772654].
Printed by authority of the Commonwealth Government Printer
<PR772653>
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