Luke McGrath v Sunnyfield Disability Services

[2020] FWC 5267

[2020] FWC 5267

FAIR WORK COMMISSION

DECISION NO.2

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

Luke McGrath
v
Sunnyfield Disability Services
(U2020/75)

COMMISSIONER CAMBRIDGE SYDNEY, 8 OCTOBER 2020

Unfair dismissal - jurisdictional objection - application made out of time - no exceptional circumstances established - extension of time refused - application dismissed.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Luke McGrath (the applicant). The respondent employer is Sunnyfield Disability Services (ABN 72 000 415 127) (the employer).

[2] This Decision is made in respect to the discrete question as to whether the Fair Work Commission (the Commission) should exercise the discretion to extend time so as to permit the matter to proceed notwithstanding that the application was filed out of time.

[3] The application was filed on 5 January 2020, and the application document indicated that the date that the dismissal took effect was 9 December 2019. Consequently, the application was not made within the 21 day time limit that is prescribed by subsection 394 (2) (a) of the Act.

[4] On 14 January 2020, WilliamsonBarwick lawyers, filed a Form F53 - Notice that lawyer or paid agent acts for a person, which advised that they acted for the employer. The employer filed a response to the application dated 29 January 2020, which inter alia, raised a jurisdictional objection on the basis that the application had been made out of time (the out of time objection).

[5] On 4 February 2020, Catanzariti VP wrote to the applicant in respect to the out of time objection that had been raised by the employer, and in this communication the applicant was invited to provide a written statement upon which the applicant would seek to establish exceptional circumstances so as to allow for an extension in time so as to permit the matter to proceed. On 10 February 2020, the applicant sent an email to the chambers of Catanzariti VP which included matters that the applicant sought to rely upon in respect to establishing exceptional circumstances regarding the out of time objection. On 13 February 2020, the file in this matter was allocated to the Commission as currently constituted.

[6] The matter was initially listed for Pre-Hearing Conference/Conciliation on 25 February 2020. However, the applicant sought and obtained the employer’s consent to delay the Pre-Hearing Conference/Conciliation which was subsequently conducted on 6 March 2020. On 6 March 2020, the Commission issued Directions which established a timetable for the Parties to file and serve all evidence and submissions that each relied upon in respect to the out of time objection and a contested representation question.

[7] In accordance with the Directions, the Parties have provided their respective submissions on both the out of time objection and the representation question. In a document dated 27 March 2020, the applicant provided a written objection to the employer being granted permission to be represented by lawyers or paid agents. On 17 April 2020, Adrian Barwick solicitor, provided written submissions seeking permission to represent the employer.

[8] On 30 April 2020, the Commission issued a Decision [2020] FWC 2120, which refused permission for the employer to be represented by lawyers or paid agents.

[9] On 4 May 2020, the lawyers representing the employer sent a communication to the Commission which firstly, raised concern that it had not been provided with any reply material from the applicant, and secondly, indicated that the out of time objection should be determined following a formal, in person Hearing, because the credit of the applicant was raised as a significant issue that required testing by way of the cross-examination of the applicant as a witness. The lawyers representing the employer subsequently filed a Notice that they ceased to act for the respondent.

[10] In due course, following the relaxation of certain COVID-19 restrictions, the Hearing of the out of time objection was conducted in Sydney on 30 July 2020. At the Hearing the applicant provided evidence as a witness and he was cross-examined by Ms Blumberg, the employer’s General Manager, People, Learning & Culture. Ms Blumberg appeared for the employer at the Hearing, and she also provided evidence as a witness.

Relevant Factual Background

[11] The applicant had worked for the employer for about 2 years and 5 months. The employment of the applicant concluded on 9 December 2019, when he was summarily dismissed for reason of serious misconduct.

[12] The applicant was engaged to work in a position described as service coordinator. The position of service coordinator primarily involved responsibility for the daily operations of a group home whereby support is provided for people with intellectual disabilities. The work of the applicant was governed by the Social, Community, Home Care and Disability Services Industry Award 2010 (MA000100). The employer was not a small business, and at the time of the dismissal of the applicant it employed in excess of 1653 employees.

[13] The summary dismissal of the applicant was the outcome of an investigation and show cause process that the employer had conducted in respect of allegations that the applicant had engaged in inter alia, physical and verbal abuse of a vulnerable person with a disability. The allegations that were made against the applicant also became the subject of assault charges that were laid by the police. At the time of the dismissal of the applicant, the police charges were pending prosecution. Subsequently, on 13 March 2020, the Local Court of New South Wales found the applicant not guilty and dismissed two charges of common assault that had been laid against him.

[14] The applicant was provided with a letter of dismissal dated 9 December 2019, which referred to a show cause letter of 27 November 2019. The show cause letter of 27 November 2019 set out a summary of the employers’ findings in respect to various allegations of misconduct that were made against the applicant. The particular allegations in respect of physical and/or verbal abuse of a vulnerable person with a disability were not sustained. However, the employer sustained various other findings which, in the letter of dismissal of 9 December 2019, it articulated as the applicant having engaged in serious misconduct that warranted his summary dismissal.

[15] On 5 January 2020, the applicant filed his claim for unfair dismissal remedy which was made six days late.

The Applicant’s Case in Support of an Extension of Time

[16] The applicant provided material in the form of a mixture of assertions of fact and submissions contained in various documents. The unfair dismissal application document (Form F2) provided the following explanation for the delay with its lodgement: “It was just before Christmas and new years and i was waiting to speak to a lawyer i was not aware i only had three weeks to apply i was notified of this today when speaking to someone so i have got strait on line to submit this request”.

[17] On 10 February 2020, the applicant sent a document to the chambers of Catanzariti VP which included further explanation regarding the circumstances associated with the late filing of his unfair dismissal claim. In this document, the applicant mentioned that following his dismissal he was very stressed and on medication. The applicant also mentioned that it was difficult to obtain legal advice, and that when he decided to proceed with the application, he was informed that the Commission was closed down over Christmas. The applicant asserted that the Commission was closed for 9 days, and he believed that this should constitute a legitimate reason for the delay.

[18] On 27 March 2020, the applicant provided further material in support of establishing exceptional circumstances regarding the late lodgement of his unfair dismissal claim. The applicant provided a Statutory Declaration dated 27 March 2020, in which he mentioned that he was suffering from major depression, and under significant personal stress because he was attending to Court matters which involved false allegations that had been made against him. The applicant also included a letter from his treating medical practitioner as support for the medical conditions that he was suffering following his dismissal.

[19] On 4 May 2020, the applicant also submitted an email which rejected the employer’s assertion that the applicant was being untruthful about the reason for the late lodgement of his unfair dismissal claim because he had not previously mentioned his medical condition as a reason for the late lodgement. The applicant stated that he had not previously mentioned his medical condition as he did not wish to talk about suffering from major depression.

[20] At the Hearing, the applicant also made oral submissions in support of an extension of time, and he spoke in opposition to the out of time objection that had been raised by the employer. The applicant said that following his dismissal he was going through a very, very bad time and he could barely function. The applicant said that it wasn’t until his friend called him and told him about the requirement to lodge an unfair dismissal claim within 21 days that he realised that he needed to make the application within 21 days.

[21] In summary, the applicant provided material which asserted that the reason for the delay with filing his unfair dismissal claim involved his state of mental health which involved major depression and stress as confirmed in the letter from his treating Doctor. The applicant also asserted that the delay was associated with difficulty in obtaining legal advice, and because the Commission was allegedly closed for 9 days over Christmas. The applicant submitted that these reasons provided exceptional circumstances such that an extension of time for the lodgement of his claim for unfair dismissal should be granted.

The Employer's Case in Opposition to an Extension of Time

[22] In a document dated 17 April 2020, the employer set out its outline of submission material which was constructed with reference to the factors contained in subsection 394 (3) of the Act. The submission material provided by the employer firstly examined the reasons for the delay that had been advanced by the applicant. In summary, the employer submitted that the applicant’s alleged reasons for making the application outside the statutory timeframe were not credible and not consistent.

[23] The documentary submissions that had been provided by the employer were supplemented by oral submissions made by Ms Blumberg during the Hearing. Ms Blumberg submitted that at different times the applicant had advanced different reasons for his delay in lodging the unfair dismissal application. Ms Blumberg submitted that the applicant had initially relied upon the Christmas and New Year period and difficulty in obtaining a lawyer. However, he subsequently suggested that the delay was associated with his belief that the related criminal proceedings had to be finalised before he could lodge an unfair dismissal application. Subsequently, according to the submissions made by Ms Blumberg, the applicant introduced the question of his medical condition involving major depression as the reason for the late lodgement of the unfair dismissal claim.

[24] Ms Blumberg submitted that the reasons that had been offered by the applicant for his late lodgement were inconsistent and they did not hold merit. Ms Blumberg submitted that the reasons that had been offered by the applicant did not establish any exceptional circumstance.

[25] The submissions made on behalf of the employer also asserted that the applicant had been made aware of the dismissal on 9 December 2019, and he had not taken any action to dispute the dismissal before lodging the late unfair dismissal claim. The employer indicated that the question of prejudice was not applicable. Further, the employer submitted that the applicant’s claim had only questionable merit and the issue of fairness between the applicant and other persons was a factor that was not applicable.

[26] In summary, the submissions made by the employer asserted that the application had been made out of time, and by reference to the various factors contained in subsection 394 (3) of the Act, exceptional circumstances had not been established. Therefore, the employer submitted that the applicant should not be granted an extension of time and his unfair dismissal claim should be dismissed.

Consideration

[27] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) of the Act allows for an extension of the 21 day time period if exceptional circumstances are established.

[28] In this case, the application was filed on 5 January 2020, which was some 27 days after the day on which the applicant’s dismissal took effect. Therefore, the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made 6 days after the expiry of the 21 day time limit.

[29] Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) is in the following terms:

“(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.”

[30] As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.

[31] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.

[32] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years should be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.

[33] In this case the delay was 6 days relevant to the 21 day time limit. Consequently, the length of the delay of almost one week in the context of a 3 week time limit, could be described as a relatively short delay in the context of the statutorily prescribed time limit.

Subsection 394 (3) (a) - The Reason for the Delay

[34] In this instance, the reasons for the delay that were advanced by the applicant initially involved mention of the Christmas and New Year’s period, and difficulties that he apparently had in obtaining legal advice. Subsequently, the applicant suggested that he delayed lodging his unfair dismissal claim because he was of the belief that he could not make the claim until after the related criminal proceedings had been finalised. Later, the applicant also suggested that he was suffering a medical condition involving major depression which prevented him from making the application at an earlier time. The applicant also offered an explanation for not mentioning his medical condition at an earlier time because he did not wish to talk about it.

[35] The applicant provided evidence about his medical condition involving major depression by way of a letter from his treating medical practitioner. The letter from the applicant’s medical practitioner, Dr Paul Singh, asserts that the applicant was unable to submit his unfair dismissal application in a timely manner due to his medical condition. Unfortunately, the assertion made by Dr Paul Singh has been directly contradicted by the applicant’s own evidence.

[36] During the course of the cross-examination of the applicant at the Hearing, the applicant provided the following crucial evidence when he said: “As soon as I was notified you had 21 days I jumped straight onto the computer.” 1 Any medical condition that the applicant was allegedly suffering did not prevent him from immediately lodging his unfair dismissal application online in response to advice from a friend that alerted him to the 21 day time limit.

[37] Further, it should be noted that the application was filed electronically at 9:44 pm on Sunday, 5 January 2020, and the applicant’s suggestion that the Commission offices were closed for 9 days over Christmas was incorrect. In any event, any physical closure of the Commission premises did not impede the electronic filing of an unfair dismissal claim.

[38] Consequently, the Commission rejects the applicant’s assertions that either his medical condition and/or any Christmas closure of the Commission premises provided proper reason for the delay with the lodgement of his unfair dismissal claim. Further, the evidence confirms that any delay with obtaining legal advice did not operate to prevent the applicant from lodging his unfair dismissal claim electronically, and as he did, in immediate response to advice from his friend regarding the 21 day time limitation.

[39] In addition, the requirement for the applicant to deal with related criminal proceedings could not operate to prevent him from making an unfair dismissal application. Although the related criminal proceedings would have understandably caused anxiety and occupied the applicant’s time and energies, if anything, engagement in, and information gathered in other legal proceedings, may have assisted the making of an unfair dismissal application within time.

[40] On any reasoned and objective contemplation, the reasons for the delay in making the application, when considered separately or in cumulative operation, could not be sustained as sound, acceptable reasons for delay. In simple terms, the applicant had physical and mental capacity to make his application to the Commission on 5 January 2020, and there was no evidence to provide acceptable explanation of any incapacity to make the application before that time.

[41] Consequently, when the reasons for the delay are carefully and objectively considered, they unfortunately do not provide a sound and acceptable reason for the delay in filing the application for unfair dismissal remedy. The evidence has established that the impetus for the filing of the late unfair dismissal claim was the advice provided to the applicant which alerted him to the 21 day time limit. There was no evidence to establish any impediment to the filing of the application within time.

Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect

[42] The applicant first became aware of his dismissal on 9 December 2019, when he was advised of his summary dismissal for serious misconduct. The applicant was provided with a termination of employment letter that confirmed his summary dismissal for reason of serious misconduct. Consequently, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal

[43] The applicant did not take action to dispute his dismissal prior to making the late unfair dismissal claim. Therefore, this factor does not provide any assistance to the applicant.

Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)

[44] There was a paucity of evidence as to the details of any prejudice. The submissions made by the employer did not assert that the delay caused it any prejudice. On balance, this factor has been treated as being neutral.

Subsection 394 (3) (e) - The Merits of the Application

[45] This factor, which is described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if an extension of time was granted.

[46] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. In this case it is relevant to observe that caution should be exercised to guard against any tendency to translate the acquittal of the applicant by the Local Court of the assault charges as providing support for potential success of the unfair dismissal claim. The dismissal of the applicant proceeded upon the employer’s findings that the conduct of the applicant in respect of the allegations of physical and verbal abuse of a vulnerable person with a disability were not sustained. The dismissal of the applicant was for reasons of serious misconduct in respect of conduct other than that involving the common assault charges for which the applicant was acquitted.

[47] The employer conducted an extensive investigation into all of the allegations of misconduct that had been made against the applicant. The applicant was provided with a show cause process in respect to the findings that the employer had substantiated and before it made the decision to dismiss the applicant. On balance, in this instance this factor, regarding the merits of the unfair dismissal claim, has been treated as being neutral.

Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position

[48] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral.

Exceptional Circumstances

[49] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  2. The consideration therein establishes a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[50] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  3and the following paragraph from that Decision is particularly helpful:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 4

Conclusion

[51] In this instance the exercise of the discretion to extend time has been required in respect to a delay of 6 days. In this context, the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.

[52] The reasons for the delay have involved the applicant’s asserted medical condition, and further difficulties allegedly associated with the Christmas/New Year period. Further, the applicant suggested that the delay in making the unfair dismissal claim was associated with a delay with obtaining legal advice and was further complicated by related criminal proceedings. Unfortunately for the applicant, the evidence that he provided about his immediate response when being informed of the 21 day time limit has defeated the reasons that were proffered by him as causing some impediment to the earlier filing of the unfair dismissal claim. Upon careful consideration, the reasons for delay could not represent a sound and acceptable reason for the application to have been made after the 21 day time limit had elapsed.

[53] The other factors under consideration, either did not assist the applicant's claim for the Commission to exercise the discretion to extend time or were of neutral impact.

[54] On balance and having particular regard for the absence of any satisfactory reason for the delay, I have determined that exceptional circumstances have not been established in this instance. Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case there was an unfortunate absence of evidence to provide sound and proper justification for the Commission to exercise the discretion to extend time.

[55] An Order [PR723247] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision.

COMMISSIONER

Appearances:

Mr L McGrath appeared unrepresented.

Ms S Blumberg, General Manager, People, Learning & Culture appeared for the employer.

Hearing details:

2020.
Sydney:
July, 30.

Printed by authority of the Commonwealth Government Printer

<PR723245>

 1   Transcript @ PN113.

 2   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 3   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

 4