DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marcus Palmer
v
The Salvation Army
(U2019/14576)

COMMISSIONER PLATT

ADELAIDE, 17 FEBRUARY 2020

Application for relief from unfair dismissal – extension of time – application dismissed.

[1] Mr Marcus Palmer has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with The Salvation Army which his form F2 Unfair Dismissal Application advised took effect on 27 November 2019.

[2] The application was lodged on 23 December 2019.

[3] Mr Palmer’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“At the time of dismissal and in the weeks leading up to I was seeing a Psychologist on a Mental Health Care Plan for anxiety from work related stress and personal stress. I also had undergone work related Psychometric testing which also added to the anxiety and stress I was under at the time on the 14th November. Following my dismissal I have been working through my anxiety with my Psychologist but wasn't in a stable place where I could make an application in time.”

[4] On 17 January 2020, The Salvation Army lodged a form F3 Employer Response which indicated that the dismissal occurred on 27 December 2019 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.

[5] On 21 January 2020, an amended form F3 Employer Response was lodged, correcting the date of termination to 27 November 2019.

[6] On 20 January 2020, my Associate corresponded with Mr Palmer and The Salvation Army and advised that the extension of time issue would be considered at a telephone conference on 17 February 2020. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Palmer was directed to provide a statement concerning the extension of time and any documents to be relied upon by 3 February 2020. The Salvation Army was invited to file any material in reply by 10 February 2020.

[7] Mr Palmer provided the following documents:

• Letter from Dr Sean O’Toole dated 31 January 2020 to the ‘Unfair Dismissal Tribunal’ confirming that Mr Palmer is currently a patient and that he was referred to a psychologist on 4 October 2019.

• Information and Acknowledgement for Psychological Assessment signed by Mr Palmer on 20 October 2019.

• Letter from Dr Ryan Balzan, Clinical Psychologist, dated 21 January 2020 stating that Mr Palmer has had therapy in relation to generalised anxiety from October 2019.

• An outline of submissions dated 31 January 2020.

[8] Mr Palmer’s outline of submissions are summarised as follows:

• In the lead up to dismissal, Mr Palmer was seeing a psychologist due to anxiety he was experiencing. He was diagnosed with General Anxiety…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 834
Decision Date: 17 FEBRUARY 2020

CaseChat Overview and Summary

Marcus Palmer brought an application against The Salvation Army for relief from unfair dismissal. The matter was heard in the Fair Work Commission. The primary dispute was whether the Commission should grant an extension of time for Palmer to lodge his application for unfair dismissal, which was outside the 21-day statutory period.

The legal issues centred on whether the Commission should exercise its discretion under section 384(2A) of the Fair Work Act 2009 to extend the time limit for Palmer to lodge his application for unfair dismissal. The court had to determine if there were any grounds for the delay and whether it was in the interests of justice to grant the extension. The primary consideration was whether Palmer had acted with sufficient diligence and whether there were any exceptional circumstances that justified the late filing.

The Commission found that Palmer had not demonstrated sufficient diligence in lodging his application. The Commission also found that there were no exceptional circumstances that warranted an extension of time. The Commission held that Palmer had not provided a satisfactory explanation for the delay and that the application for an extension was not in the interests of justice. Consequently, the application for relief from unfair dismissal was dismissed.

The Fair Work Commission dismissed the application for an extension of time and relief from unfair dismissal.

Orders