Lance Edward Boston v Cleanaway Operations Pty Ltd

[2021] FWC 6556

[2021] FWC 6556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lance Edward Boston
v
Cleanaway Operations Pty Ltd
(U2021/10544)

COMMISSIONER WILLIAMS PERTH, 9 DECEMBER 2021

Application for an unfair dismissal remedy - jurisdiction - out of time.

[1] Mr Lance Edward Boston (the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Cleanaway Operations Pty Ltd (the Respondent).

[2] The Applicant was notified of the dismissal by a letter dated 26 October 2021 which he read on 27 October 2021. 1 The application was made on 18 November 2021.

[3] The application was made more than 21 days after the dismissal took effect.

[4] 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.”

[5] Consequently, on 23 November 2021, the Commission’s staff wrote to the parties explaining the requirements of section 394(2) of the Act and requesting the Applicant respond in writing explaining why the circumstances were exceptional and providing supporting evidence.

[6] The Applicant has provided a written response to the Commission’s direction. The Respondent has also filed their response to the application.

[7] 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 reason for the delay

[8] Relevantly, the Applicant submits that on 27 October 2021 he attended a medical appointment for mental health purposes for the very first time in his life, and on that day commenced treatment for that condition.

[9] The Applicant submits that the effect of the mental health condition and its treatment resulted in the Applicant’s substantial lack of cognitive function, as supported by his doctor.

[10] The Applicant says the treatment left him excessively lethargic, nauseas, and with painful physical affects. The circumstances for the Applicant were humiliating, isolating, and debilitating. The Applicant only shared the circumstances with his family when he approached his sister on 16 November 2021 for assistance with the application.

[11] The Applicant submits that his wife, as the primary earner working in the health care sector, received her first COVID-19 vaccination on 18 October 2021. This resulted in adverse effects to her health for several days following and created untenable anxiety for the Applicant and his wife on top of their existing stress. The couple were highly hesitant for her to receive the second vaccination; however, it was mandatory for her very necessary employment and occurred on 18 November 2021. The Applicant’s wife again received severe adverse reactions which at this time are ongoing. During the week before this event, the stress was debilitating for the Applicant. This was the week that the application for unfair dismissal remedy was due.

[12] The medical certificate filed by the applicant, which is dated 24 November 2021, refers to the Applicant as having “work- related anxiety and depression causing insomnia and poor concentration to perform tasks adequately.”

[13] A Full Bench of the Commission in Australian Postal Corporation v Lili (Karen) Zhang, 2 with respect to medical evidence provided to a Commissioner considering whether or not there were exceptional circumstances warranting an extension of time to make an application, held 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.”

[14] The medical certificate filed by the Applicant does not explain the extent to which he was incapacitated during the period between being dismissed and making the application.

[15] It is not uncommon for employees subject to workplace investigations and then dismissal to find this distressing and upsetting. Some negative impact on an employee’s mental health is unfortunately also not uncommon.

[16] Similarly, it is not unusual for dismissed employees to have family members who coincidently are unwell in the period immediately after the dismissal.

[17] Whilst the Commission can sympathise with the Applicant’s experience the circumstances the Applicant relies on as reasons for the delay in making the application are not themselves exceptional circumstances

[18] The Applicant has not provided evidence of acceptable reasons for the delay in making his application.

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

[19] The dismissal took effect on 26 October 2021. The Applicant was aware of the dismissal only when he opened his email and saw the termination letter on 27 October 2021.

Any action taken by the person to dispute the dismissal

[20] There is no evidence that the Applicant took any action to dispute the dismissal after it took effect other than the making of this application.

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

[21] 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

[22] The Respondent became aware of possible safety breaches by the Applicant in August 2021. Consequently, the Applicant was stood down with pay pending an investigation.

[23] Following on from an investigation, and having heard from the Applicant regarding the allegations, the Respondent decided to dismiss him on the basis that it believed he had engaged in misconduct by failing to follow life-saving rules. Specifically, the Applicant did not perform pre-start checks on a vehicle and proceeded to operate that vehicle which was tagged as out of service.

[24] The Applicant disputes the Respondent’s findings and denies he has misconducted himself

[25] In determining whether or not further time should be allowed for an Applicant to file their application out of time the Commission does not undertake a full hearing of the merits of the application.

[26] Given the reason for dismissal in this case is disputed between the Applicant and the Respondent, the merits or otherwise of this application are a neutral factor in determining whether further time should be allowed for the Applicant to make this application.

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

[27] 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

[28] 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 time limit of 21 days prescribed in the legislation.

[29] I have considered the information provided by the Applicant and considering all of the factors prescribed in section 394(3) of the Act I am not satisfied that this case involves exceptional circumstances.

[30] Consequently, the Commission is not able to allow a further period for this application to be made.

[31] This application was made out of time and so is not properly before the Commission and so must be dismissed.

[32] An Order [PR736577] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 26 November 2021.

Printed by authority of the Commonwealth Government Printer

<PR736576>

 1   Applicant’s statutory declaration at paragraph 1.

 2   [2015] FWCFB 5285.