Lester S Jacobs v New Norcia Services
[2022] FWC 199
•1 FEBRUARY 2022
| [2022] FWC 199 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lester S Jacobs
v
New Norcia Services
(U2021/10625)
| COMMISSIONER WILLIAMS | PERTH, 1 FEBRUARY 2022 |
Termination of employment - jurisdiction - extension of time.
Mr Lester S Jacobs (Mr Jacobs or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Respondent is New Norcia Services (the Respondent).
Mr Jacobs’ application (the Application) says that his alleged dismissal was discussed on 18 March 2020 and his dismissal letter said it took effect the same day. The Application was made on 21 November 2021.
The Respondent agrees that the employment ended on 18 March 2020 but objects to the Application on the grounds that the Applicant was not dismissed, but rather retired and separately, that the Application is made out of time.
The Application has been made more than 21 days after the alleged dismissal took effect.
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.”
Consequently, on 25 November 2021, the Commission’s staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.
The Applicant provided a written response.
The Respondent objected to the Applicant being granted an extension of time and provided submissions in support of their position.
Both parties were asked if they objected to the Commission determining the extension of time question on the papers without a hearing and both parties consented.
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 Applicant’s reason for the delay
The reason for the delay given in the Application was that initial papers were filed and given to Unions WA which were then passed to a secondary agency. The Applicant says that the paperwork is apparently missing and is therefore required to be completed again.
In response to the Commission’s request for further information demonstrating exceptional circumstances, the Applicant filed a letter via his representative, the Day Dawn Advocacy Centre, on 29 November 2021.
In that letter, he says he was dismissed during the first wave of the COVID-19 pandemic and that this was unusual and frightening for him given he was newly homeless. He says he found it challenging to get himself organised to make a claim against the Respondent and as such, he spoke to someone at Unions WA who said they would help him, but he can find no evidence of a claim ever being submitted by them. He says he was effectively homeless and residing in an ad hoc accommodation on the favour of a friend.
He says the second reason he was unable to submit the claim within the timeframe was because he was suffering from depression caused by his dismissal. He attached a letter from the Moora Health Centre regarding this. He says that depression commonly results in the sufferer feeling unmotivated and unable to carry out basic day-to-day tasks let alone complete paperwork and gather documents required for an unfair dismissal claim.
The Applicant’s letter says that he was also not aware that there was a time limit on claims.
A letter dated 28 April 2021 from a doctor at the Moora Health Centre states that the doctor had seen Mr Jacobs that day regarding ongoing low mood symptoms and that the Applicant was seeking counselling to manage his symptoms of low mood. The letter states that his symptoms are most consistent with major depression.
The Application in this case has been made more than one and a half years late.
The fact that the Applicant was unaware of the time limit of 21 days is not an acceptable reason for making a late application.
No information is provided by the Applicant as to when he spoke to Unions WA nor what, if anything, he has done for approximately one and half years to follow up with them about the claim he understood they were making on his behalf. If this explanation is put forward as a form of arguable representative error, then there was an obligation on the Applicant to diligently follow up with Unions WA to ensure that they were pursuing the application on his behalf. However, there is no evidence that Mr Jacobs has done this at all.
I do not accept that the Applicant’s previous interactions with Unions WA is an acceptable explanation for the very lengthy delay in this instance.
Separately, the existence of the COVID-19 pandemic is not an exceptional circumstance, nor does it demonstrate that the Applicant had an acceptable reason for the delay here.
Regrettably, the disruption to people’s accommodation is not an uncommon consequence of unemployment and as such, this is not an exceptional circumstance.
As to the state of his mental health, the Commission notes that the limited medical information provided concerns a consultation with a doctor in April 2021. This provides no information about the state of his health between the time of his alleged dismissal and April 2021 and in any event, does not provide sufficient information for the Commission to properly conclude that the Applicant’s state of mental health was so poor that he was unable to make this application for this lengthy period.
The issues and the circumstances which the Applicant seeks to rely on together are not exceptional circumstances. The Applicant has not provided an acceptable reason for what is an extremely long delay in making this application.
Did the Applicant first became aware of the dismissal after it had taken effect?
The Applicant was made aware of his alleged dismissal at the same time it took effect.
Action taken to dispute dismissal
The Applicant did take other action to dispute his dismissal by approaching Unions WA for assistance.
Prejudice to the employer (including prejudice caused by the delay)
In this case, the lengthy delay is likely to cause some prejudice to the Respondent in defending a historical dismissal if a further period to apply was allowed.
The merits of the application
The Applicant says in his application that he had not received any notification, warning, or statement indicating he had breached any professional standards. He says he was unaware of any complaints that may have been lodged. He says he was pulled into an office where two people began to bombard him with statements regarding what he had supposedly not done. He says that the discussion was one-sided and very minimal in specific detail. He says that the tone was of a workplace bullying nature and that he did not have a chance of reply or response.
I note that appended to the Application is a letter dated 8 April 2020 that refers to him being stood down on the basis of professional standards issues discussed with him on 18 March 2020. The letter then refers to the subsequent agreement made that he would retire effective as of that date, 18 March 2020.
The Respondent’s position is that there was no termination at the initiative of the Respondent but that the parties mutually agreed on or about 18 March 2020 that the Applicant would retire.
The background to this was that in March 2020, the Respondent was formally notified that the Applicant has been named as an accused person in an application made by a third party for redress under the National Redress Scheme for Institutionalised Child Sexual Abuse Act 2018.
Prior to this, there had been discussions between the Applicant and his former manager in relation to his retirement and pension planning.
After receiving the allegations there was a meeting with him at the Respondent’s request on 18 March 2020 and following those discussions, the Respondent says the Applicant decided to retire and that this was done of his own volition.
The Applicant then received a significant payment and at no time after receipt of his final payment on 14 April 2020 did the Applicant assert that there had been a termination at the initiative of the Respondent or that he was forced to retire.
Clearly this is a case where there is a fundamental difference between the Applicant and the Respondent as to the circumstances of the ending of the Applicant’s employment. Consequently, it is only at a full hearing of the matter would the Commission be in a position to have an informed view as to the merits or otherwise of the Application.
In these circumstances, the Commission views the merits of the Application as a neutral factor in determining whether exceptional circumstances warrant an extension of time to make this application.
Fairness as between the person and other persons in a similar position
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
The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to file this application. Taking into account all of the factors, I am not persuaded that there are exceptional circumstances in this instance.
Consequently, the Commission is not empowered to extend time for the Applicant to make this application. This application has been made out of time and so must now be dismissed.
An order [PR737910] to that effect will now be issued.
Printed by authority of the Commonwealth Government Printer
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