Marcus Wright v Queensland Electricity Transmission Corporation Limited
[2024] FWC 2869
•16 OCTOBER 2024
| [2024] FWC 2869 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Marcus Wright
v
Queensland Electricity Transmission Corporation Limited
(U2024/10171)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 16 OCTOBER 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Introduction
This decision concerns an application by Mr Marcus Wright (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, Queensland Electricity Transmission Corporation Limited (Respondent).
The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).
I conducted a hearing, by telephone, on 14 October 2024 in relation to the Applicant’s request for an extension of time.
The Applicant’s dismissal from his employment with the Respondent took effect on 5 July 2024. The Applicant lodged his unfair dismissal application in the Commission on 30 August 2024.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 26 July 2024. The application was therefore filed 35 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
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]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) 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.
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. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
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 of the circumstances must be considered.[5]
Relevant facts and submissions
In his unfair dismissal application, the Applicant gave the following explanation for his application being filed outside the 21 day period provided for in the Act:
“I’m currently suffering from and under treatment for Depression and Anxiety, as diagnosed by my Doctor, this was also the issue leading to my dismissal. This termination of my employment has resulted in the end of my 12 year career in the relatively ‘tight-knit’ electricity transmission industry, ie. my only references from this field would have to come from Powerlink themselves. (I initially started my apprenticeship with them in 2012)
This has (I feel understandably) exacerbated my condition and until now I’ve felt that there was nothing I could do to better argue my case against a large corporation with professional legal teams than I had already done throughout the lengthy ‘show cause’ processes. Unfortunately now that I’ve had time to fully process the situation and fully understand Powerlink’s written response to my arguments in their Termination letter (which they didn’t detail in our final face-to-face meeting); and believe they’ve drawn incorrect and/or unfair conclusions to, it is several weeks past the deadline.”
In an email to the Commission sent on 19 September 2024, the following further information was provided by the Applicant to support his request for an extension of time:
“I’m currently suffering from, and under treatment for Depression and Anxiety. The termination of my employment, on the back of a lengthy ‘show cause’ period with my previous employer, has further exacerbated my condition. Communication is one of the main areas effected by my condition (primarily Anxiety), and believing I had already made my arguments to the best of my ability but to no avail, I felt that further pursuing the issue was a lost cause, especially considering the additional stressors i.e. financial and job-seeking.
Given time to fully process the situation, and having re-read Powerlink’s Termination letter and previous correspondence multiple times with a clearer mindset, I was able to see several issues with the arguments that were used in coming to their final conclusion.
I’ve included Medical Certificates and a Medical Report from my treating doctors dating back to late 2022 when my condition initially began to present itself.”
The relevant timeline of events disclosed in the evidence before the Commission may be summarised as follows:
(a)On 2 December 2022, the Applicant’s doctor issued a medical certificate stating that the Applicant had attended for a medical condition and had commenced medical management with ongoing review and management.
(b)On 22 December 2022, the Applicant’s doctor issued a medical certificate stating that the Applicant had a generalised anxiety disorder and was on medical management. The Applicant was certified as unfit for work from 20 December 2022 to 5 March 2023.
(c)On 27 February 2024, the Respondent provided the Applicant with a detailed letter outlining its concerns with his behaviour in the period since mid-2023.
(d)On 27 March 2024, the Applicant’s doctor certified that he was suffering from a medical condition and would be unfit for work/study from 27 March 2024 to 10 April 2024.
(e)On 16 April 2024, the Applicant’s doctor authored a report in which she stated, among other things, that:
- The Applicant’s symptoms of a Major Depressive Episode had improved markedly over the past few months. He was no longer feeling hopeless or helpless, was expressing a desire to return to work, and was motivated to make improvements in his life to get back to normal.
- The Applicant’s condition appeared stable and was improving.
- After reading the Applicant’s job description and speaking to him about his capacity and concerns, the Applicant’s doctor recommended a return to work plan and stated that she would continue to monitor the Applicant during that time to ensure no issues arise.
- After reviewing the Applicant’s work requirements, the Applicant’s doctor recommended that he ease back into his full-time role, with ongoing medical monitoring.
(f)By letter dated 4 June 2024, the Applicant was asked to show cause as to why his employment with the Respondent should not be terminated.
(g)By letter dated 11 June 2024, the Applicant provided a response to the request that he show cause as to why his employment should not be terminated.
(h)By letter dated 21 June 2024, the Applicant provided a detailed response to the allegations made against him by the Respondent, including his failure to give notice of his absences from work and his failure to comply with lawful and reasonable directions.
On 19 June 2024, the Applicant’s doctor provided a letter in which she stated that she had seen the Applicant to rediscuss his return-to-work plan.
(j)By letter dated 4 July 2024 (but not provided to the Applicant until 5 July 2024), the Applicant was notified of the Respondent’s decision to terminate his employment with immediate effect and the reasons for that decision.
(k)On 17 September 2024, the Applicant’s doctor provided a medical certificate stating that she had been treating the Applicant for moderate to severe depression since 27 March 2024.
Although I have sympathy for the Applicant, taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the 35 day delay in filing his unfair dismissal application. On the evidence before the Commission, I am not satisfied that the Applicant’s mental health meant that he was unable to prepare a lodge an unfair dismissal application in the Commission within 21 days of his dismissal. Shortly before his dismissal, the Applicant provided articulate letters to the Respondent dated 11 and 21 June 2024 in which he responded to various issues and concerns raised by the Respondent. This is consistent with the Applicant’s treating doctor forming the view, as articulated in her report of 16 April 2024, that the Applicant’s symptoms had markedly improved and he was fit and ready to return to work. I accept that the news of his dismissal by the Respondent would have come as a blow to the Applicant and had a negative impact on his mental health, but the evidence before the Commission does not establish that the Applicant was unable to prepare and file his unfair dismissal application by 26 July 2024.
The absence of an acceptable or reasonable explanation for the 35 day delay in lodging the application on 30 August 2024 weighs against the Applicant’s contention that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his dismissal on the day it took effect and therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute his dismissal, other than filing his unfair dismissal application in the Commission. This is a neutral consideration.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed, and I do not repeat them here. 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.
The Applicant submits that he provided the Respondent with an adequate explanation for his many absences from work. The Applicant believes that the Respondent’s suspension of his active duties and the subsequent requirement for his doctor to complete a ‘fitness for work’ report was a deliberate and deceitful ploy to try and bolster the Respondent’s arguments for his termination. The Applicant considers that the Respondent’s Employee Relations team have engineered their own argument concerning his alleged unwillingness to repay any overpayments made due to the Respondent’s payroll system automatically paying employees for their salaried hours per fortnight when no timesheets were entered. It is submitted by the Applicant that his anxiety and depression explained his communication difficulties, at times, with the Respondent. Finally, the Applicant says that he loved working for the Respondent throughout his 12 year career, starting as an apprentice and ending as a Systems Technologist working on and looking after Queensland’s electricity transmission network.
The Respondent denies that the Applicant’s dismissal was harsh, unjust or unreasonable. The Respondent submits that there was a valid reason for the Applicant’s dismissal and there is no legitimate basis to suggest that there was any procedural deficiency sufficient to render the Applicant’s dismissal unfair. As detailed in the termination of employment letter, the Respondent submits that the Applicant’s employment was terminated due to a consistent pattern of non-compliance. Specifically, the Applicant failed to adhere to lawful and reasonable directions, including attending work as scheduled, accurately completing his timesheets, and notifying his supervisor when unable to attend shifts as rostered. It is contended that the Applicant’s behaviour impacted the Respondent’s ability to have trust and confidence in him and was inconsistent with the continuation of his employment.
The reasons for dismissal and allegations of unfairness would need to be examined carefully in a final hearing after the giving of evidence by relevant witnesses. I do not consider that it is possible at this early stage of the proceedings to come to an informed view as to the merits of the Applicant’s unfair dismissal case. Having regard to all the circumstances, I consider the merits of the Applicant’s unfair dismissal application to be a neutral consideration.
Fairness as between the person and other persons in a similar position
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 made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. The Applicant does not have an acceptable or reasonable explanation for the 35 day delay in lodging his unfair dismissal application in the Commission on 30 August 2024. The other relevant factors are neutral. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr M. Wright appeared for himself.
Ms T. Lutvey, solicitor, appeared for the Respondent.
Hearing details:
2024.
Newcastle (by telephone):
14 October.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[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] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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