Leonard Robinson v Melbourne Inner City Management Pty Ltd t/as Micm Real Estate

[2020] FWC 6015

[2020] FWC 6015

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Leonard Robinson
v
Melbourne Inner City Management Pty Ltd t/as MICM Real Estate
(U2020/13555)

COMMISSIONER MCKINNON MELBOURNE, 11 NOVEMBER 2020

Application for an unfair dismissal remedy – extension of time refused.

[1] Leonard Robinson was employed as a Building Manager by Melbourne Inner City Management Pty Ltd trading as MICM Real Estate from 13 March 2017 until he was dismissed on 15 September 2020.

[2] On 13 October 2020, Mr Robinson applied for an unfair dismissal remedy. Applications of this nature must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows. 1

[3] Mr Robinson’s application is 7 days late. The question is whether an extension of time to make the application should be allowed.

Extension of time

[4] Section 394(3) of the Act sets out the factors to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:

•  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.

[5] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances “out of the ordinary course, or unusual, or special, or uncommon”. 2 The circumstances “need not be unique, or unprecedented, or very rare”.

Relevant factors

[6] Reason for delay: Mr Robinson provides a number of reasons for the delay in making his application. Firstly, he felt he had severe depression and anxiety arising from the process leading to his dismissal in the week leading up to, and including, 15 September 2020 (no medical evidence has been provided to this effect). Secondly, he thought the time limit for making an unfair dismissal application would be a ‘standard’ 30 days. Thirdly, he had never before made an unfair dismissal claim and while he always planned to make a claim in this case, he was hesitant to do so. Fourthly, he was dismissed in the midst of the COVID-19 pandemic. Around that time, his mother who usually resides in a nursing home was taken to hospital with flu-like symptoms. He was worried she had coronavirus (fortunately she did not) and visited her daily or at least regularly. Finally, Mr Robinson was prioritising the need to find alternative employment; dealing with Centrelink regarding jobseeker payments; and dealing with the Child Support office about his ability to meet obligations while unemployed.

[7] In my view, none of these matters are exceptional either independently or taken together. The pandemic itself is of course exceptional, but there is no reason to consider that its effect on Mr Robinson was any different to the shared experience of those living in Victoria over the past six months, many of whom have made unfair dismissal claims in time. Applications for an unfair dismissal remedy involve the completion of a relatively straightforward online form. Mr Robinson had access to a computer at home for most of the 21 day period after his dismissal and his application was made using the online form. There is no connection between the pandemic and Mr Robinson’s capacity to make his application within 21 days. The reasons for delay do not weigh in favour of a grant of additional time.

[8] Whether the person first became aware of the dismissal after it had taken effect: Mr Robinson became aware of the dismissal in a meeting on 15 September 2020 when the dismissal took effect. This is a neutral consideration for present purposes.

[9] Any action taken by the person to dispute the dismissal: In the meeting on 15 September 2020, Mr Robinson disputed the decision to terminate his employment, stating that he had “done nothing wrong”. He took no further steps to challenge the dismissal at any time before his application was filed in the Commission. This weighs against of a grant of additional time.

[10] Prejudice to the employer (including prejudice caused by the delay): There is no evidence of any prejudice to MICM Real Estate if the application proceeds. This is a neutral consideration.

[11] Merits of the application: The merits of the application have not yet been heard and no proper opportunity for the parties to put on their evidence has yet been provided. The allegations made against Mr Robinson leading to his dismissal involve failure to wear a face mask while talking to a cleaner and providing unauthorised access to building car parks under his management. Mr Robinson was summarily dismissed. At least some of his alleged conduct appears to be admitted but the gravity of the conduct is not. Mr Robinson has had difficulty finding alternative employment in the current environment. Since the dismissal he has made a public statement about his dismissal that has caused significant concern for MICM Real Estate, some of its officers and employees. All of this points to a case that is neither without reasonable prospects of success nor one where success is guaranteed. The merits are a neutral consideration.

[12] Fairness as between the person and other persons in a similar position: There is nothing before me to indicate that fairness as between two or more persons is a relevant factor in this case. It is a neutral consideration.

Conclusion

[13] The statutory time limit is fixed and an application is either made within time or not. I am not satisfied that there are exceptional circumstances in this case warranting the grant of additional time for Mr Robinson to make his application. Even if there were, I would not exercise my discretion to allow additional time having regard to the various factors above, which weigh on balance against the grant of additional time.

[14] The application is dismissed.

COMMISSIONER

Appearances:

L Robinson on his own behalf.
A Maiolo from the Respondent.

Hearing details:

2020.
Melbourne (video hearing):
November 10.

Printed by authority of the Commonwealth Government Printer

<PR724410>

 1   Fair Work Act 2009 (Cth), s 394(2)

 2   Nulty v Blue Star Group (2011) 203 IR 1 at [13]