Lyndon Crozier v
[2024] FWC 1540
•21 JUNE 2024
| [2024] FWC 1540 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lyndon Crozier
v
Wytwarron Pty Ltd
(U2024/5544)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 21 JUNE 2024 |
Application for an unfair dismissal remedy – application filed 7 days out of time – circumstances not exceptional – extension not granted – application dismissed.
On 16 May 2024, Mr Lyndon Crozier made an application for an unfair dismissal remedy, pursuant to s.394 of the Fair Work Act 2009 (the Act), by lodging a Form F2 – Unfair Dismissal Application (Form F2). While the respondent named in the Form F2 was Wimmera Roadways, subsequent confirmation was received advising that the correct legal name for the respondent was Wytwarron Pty Ltd. Accordingly, pursuant to s.586 of the Act, I determined to correct the name of the respondent to Mr Crozier’s application for an unfair dismissal remedy so that it is recorded as being Wytwarron Pty Ltd (Respondent).
The Form F2 also outlined that Mr Crozier was notified of his dismissal and that the dismissal took effect on 18 April 2024. The period of 21 days for Mr Crozier to make an application for an unfair dismissal remedy, provided for in s.394(2)(a) of the Act, ended at midnight on 9 May 2024. The application for an unfair dismissal remedy made by Mr Crozier was therefore filed 7 days outside this 21-day period. Mr Crozier therefore requires the Commission to allow him an extension of time (s.394(2)(b)).
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, 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.[1] 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.[2]
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a)the reason for the delay;
(b)whether the person first became aware of the dismissal after it had taken effect;
(c)any action taken by the person to dispute the dismissal;
(d)prejudice to the employer (including prejudice caused by the delay);
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
Reason for the delay – s.394(3)(a)
The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all the circumstances must be considered.[3]
The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 9 May 2024. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 7-day delay, or any part of that delay, beyond the 21-day period.[4] Mr Cozier raised four matters in order to explain the delay.
Firstly, Mr Crozier gave evidence that since his dismissal he spent time looking for another job.
Secondly, Mr Crozier said that his mental health suffered following his termination. Mr Cozier said that he saw a psychologist on 2 May 2024, 14 days after his dismissal took effect, was prescribed anti-depressants, and has another appointment on 25 June 2024.
Thirdly, Mr Crozier said that he called the owner of the business, Mr Leigh McGinty, on the day after his dismissal and that because Mr McGinty was in Perth, Mr McGinty had told him that he was going to see he him when he got back home. Mr Crozier claims that Mr McGinty neither telephoned him nor visited him upon his return from Perth.
Finally, Mr Crozier said that he was unaware there was a 21-day period within which to make an application for an unfair dismissal remedy.
As to these reasons:
a)It is to Mr Crozier’s credit that he sought and secured some new employment, however the Act outlines an expectation that employees who have been dismissed taking such steps to mitigate any loss suffered because of the dismissal (ss. 392(2)(d)). Further, the fact that Mr Crozier continued with some existing additional employment at the Hermitage Hotel in Harrow and also commenced additional, new employment with Hicks Machinery almost immediately following his dismissal suggests he also had capacity to make an unfair dismissal application.
b)While I have noted that Mr Crozier stated that his mental health was affected following his dismissal and that he has seen a psychologist, I am not persuaded this rendered him so debilitated and unable to complete and file a Form F2 during the 21-day period following his dismissal, on 18 April 2024. In fact, as noted above, Mr Crozier sought and obtained new employment during this period.
c)While Mr Crozier may have been waiting for further contact from Mr McGinty, I consider it was open to Mr Crozier to follow-up Mr McGinty himself during the 21 days after his dismissal took effect. In fact, while waiting to hear back from Mr McGinty, Mr Crozier said he contacted Fairwork.
d)It is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair dismissal application within the time prescribed.[5] Unfamiliarity is not exceptional.
Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an unfair dismissal application that provide a credible reason for the 7-day period of delay.
Nor do I consider there was an acceptable or reasonable explanation for the 7-day delay. Mr Crozier’s evidence was that he contacted Fairwork on or around the 21st day after his dismissal took effect. However, even after learning at that time that there was a 21-day time limit, another week passed before Mr Crozier made his unfair dismissal application. The reason Mr Crozier gave for this 7-day delay was that he was not doing well mentally but, as I have outlined above, I have not been persuaded that his reaction to his dismissal was so debilitating that it rendered him incapable of making an application, particularly because Mr Crozier was able to obtain and commence new employment with Hicks Machinery immediately after his dismissal and had continued with other pre-existing employment at the Hermitage Hotel. Further, at the time the 21-day time limit had expired, Mr Crozier had already secured the new employment so this cannot have been a factor delaying the making of an unfair dismissal application. Finally, as outlined above, I consider Mr Crozier could himself have followed up with Mr McGinty and separate to this, made an unfair dismissal application while waiting for contact from Mr McGinty.
The absence of an acceptable or reasonable explanation weighs against granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
I am satisfied that Mr Crozier became aware of his dismissal with immediate effect on 18 April 2024. Mr Crozier therefore had the full period of 21 days to lodge his unfair dismissal application. This consideration is a neutral consideration.
Action taken to dispute the dismissal – s.394(3)(c)
Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.[6] I am satisfied that when being notified of his dismissal by Mr Brett James, Manager for the Respondent, and Mr Bruce Wyllie on 18 April 2024, Mr Crozier disputed the dismissal. Mr Crozier also telephoned Mr McGinty. As Mr Crozier took these actions to dispute his dismissal, this factor weighs in favour of a finding that there are exceptional circumstances, but not too any great extent.
Prejudice to the employer – s.394(3)(d)
Mr Crozier argued that the Respondent would not be disadvantaged by the later receipt of his application. The Respondent did not contend that it would experience any substantial prejudice. I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. The consideration is a neutral consideration.
Merits of the application – s.394(3)(e)
Notification of Bus Incident reports dated 8 February 2024 and 29 February 2024, submitted by the Respondent, involved in two separate incidents that resulted in damage to buses driven by Mr Crozier. Responsibility for these incidents was not denied by Mr Crozier. A further Notification of Bus Incident report dated 18 April 2024 outlined that a collision had occurred with an obstruction or object, between 15 and 17 April 2024. The Respondent asserted that Mr Crozier was the only driver who had used the bus in question during that period and that he had damaged it backing into a shed in Horsham. Responsibility for the third incident was denied by Mr Crozier and he complained that he did not receive any written or verbal warnings or written notice of termination.
I am required to “take into account” the merits of the application in considering whether to extend time, so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.
Based on the material before me, I am not able to form a concluded view about the merits of the application. Mr Crozier raises various matters in prosecuting the unfairness of his dismissal and the Respondent has raised matters going to its contention that there was a valid reason for Mr Crozier’s dismissal. I consider the evidence would need to be tested, including under cross-examination, if an extension of time was granted and the matter was to proceed. The merits of the application would depend on factual findings made at the final hearing. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. The matters Mr Crozier raised were essentially directed at the merits of his case This consideration is a neutral consideration.
Conclusion
The requirement is that there be exceptional circumstances before time can be extended under s.394(3). This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, outlined reasoning also applicable for applications for extensions of time for unfair dismissal applications:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”[7]
Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, Mr Crozier’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
L Crozier, Applicant.
E Lalley for the Respondent.
Hearing details:
2024.
Melbourne (via Microsoft Teams):
June 19.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[7] [2018] FWCFB 901.
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