Mark Leighton v The Trustee for the Peter Fardoulys Family Trust
[2024] FWC 2340
•2 SEPTEMBER 2024
| [2024] FWC 2340 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mark Leighton
v
The Trustee For The Peter Fardoulys Family Trust
(U2024/8403)
| COMMISSIONER JOHNS | MELBOURNE, 2 SEPTEMBER 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
On 19 July 2024, Mr Mark Leighton (Applicant) applied to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with the Trustee for the Peter Fardoulys Family Trust (Respondent).
The information provided by both the Applicant and the Respondent indicates that the application may have been made out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
For the reasons that follow I have decided not to grant an extension of time.
When must an application for an order granting an unfair dismissal remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Permission to appear
The Respondent sought permission to be represented in the matter. I heard from the Respondent’s proposed representative, a solicitor, about whether permission should be granted. The application for permission was solely based on section 596(2)(a), that is that the matter is invested with complexity and that I would be assisted in the efficient conduct of the matter if permission was granted.
Both elements of the submission were without merit.
In terms of complexity, ordinarily an extension of time (EOT) matter is invested with no complexity. The assessment of “exceptional circumstances” is a question of judgment after considering each of the elements of s.394(3) of the FW Act. In FY24 the Commission dealt with 666 EOT matters. They are simple and easily expedited. This is ‘bread and butter’ work of the Commission.
In practical terms, in most cases, there is very little that a Respondent can contribute in the EOT decision making process if there is no dispute about whether there was a dismissal or the termination date. Most employers cannot establish any prejudice caused by the delay. Most employers sensibly make this concession. In terms of the merits of the matter, it is not appropriate for the Commission during an EOT hearing to resolve contested issues of fact. Consequently, the merits of the matter are often a neutral factor in deciding whether to grant an EOT so long as the Respondent can establish an apparent defence (and most can).
In terms of efficiency, the Commission has a performance benchmark that 90% of EOT matters must be completed within 35 days of allocation to the Member. In FY24 the Commission resolved 87% within 35 days of allocation. In FY24 I resolved 100% of my allocations within 35 days of allocation. This decision is being issued well within the 35-day period. It is beyond me how a lawyer or paid agent could assist me in the more efficient conduct of EOT matters. In fact, the application for permission, the submissions and the need for me to issue a decision (ex tempore) only added delay to the conduct of the first hearing in this matter.
Consequently, I decided to refuse the Respondent permission to be represented.
Accordingly, at the hearings on 12 August 2024 and 22 August 2024, the Applicant represented himself and the Respondent was represented by its Managing Director, Mr Robin Fardoulys.
Witnesses
The Applicant gave evidence on his own behalf.
Mr Fardoulys gave evidence on behalf of the Respondent.
Submissions
The Applicant filed his F2 application on 19 July 2024, along with several supporting documents, including a Princess Alexandra Hospital visitation report, his contract of employment, his letter of resignation, and various payslips. The Applicant later submitted further evidence, including a statutory declaration by Adam Welsh, a medical certificate authored by Dr Rosco York, and a letter from his treating doctor, Anthony Camuglia.
In response, the Respondent filed its F3 form and included the Applicant’s letter of resignation. The Respondent later submitted an employment separation certificate, various payslips, annual leave reports, a witness statement by Robin Fardoulys and an email exchange between Nick Anderson and the Applicant.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 14 June 2024.
When was the application made?
It is not in dispute, and I so find, that the application was made on 19 July 2024.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 14 June 2024. The final day of the 21-day period was therefore 5 July 2024 and ended at midnight that day. As I found above, the application was made on 19 July. Therefore, the application was made 14 days late.
Because the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows. That is to say, I need to consider whether to grant the Applicant an extension of time.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 5 July 2024. The delay is the period commencing immediately after that time until 19 July 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Submissions
The Applicant submitted that the delay was due his medical condition, which included multiple hospitalisations and the use of strong painkillers that impaired his cognitive abilities. He argued that his condition made it difficult for him to manage tasks independently, and he needed help from his neighbour to correspond with the respondent during this relevant period. He further stated that the stress of his situation compounded his hesitation to file the claim, as he was concerned about the impact on his health.
In response, the Respondent submitted that the Applicant had not provided sufficient evidence to support his claim of incapacity. The Respondent argued that the Applicant had engaged in various activities during the relevant period, such as returning company assets and corresponding with the Respondent, which indicated that he had the capacity to file the application within the prescribed timeframe.
Evidence
The Applicant provided a medical certificate dated 14 August 2024 from Dr Rosco York, which stated that the Applicant informed him on the same day of multiple medical conditions and medications that affected his cognitive functions and memory until 19 July 2024. The Applicant also provided a statutory declaration by Adam Welsh, dated 20 August 2024, in which Mr Welsh stated that he assisted the Applicant in preparing his resignation letter and subsequent communications with the Respondent. Additionally, the Applicant also presented an emergency department report from Princess Alexandra Hospital, indicating that he had been treated for chest pain on 13 June 2024.
The Respondent submitted a witness statement by Mr Fardoulys, dated 21 August 2024, detailing the Applicant’s actions after his resignation, including returning company assets, engaging in conversations with staff, and expressing his intent to pursue legal action against a hospital. Mr Fardoulys argued that these actions demonstrated the Applicant’s cognitive and physical capacity during the relevant period. The Respondent also provided email correspondence between the Applicant and the Respondent’s Chief Financial Officer, Nicholas Anderson, on 24 June 2024, where the Applicant requested a separation form and inquired about any funds owed by the Respondent.
Findings
Having regard to the above, I am not satisfied that the reasons for the delay are reasonable. The evidence shows that the Applicant retained sufficient capacity to engage in various activities during the relevant period, including driving and communicating with the Respondent. He prioritised those matters over making an application for unfair dismissal within the 21-day timeframe. Despite his claims of cognitive impairment, the Applicant could have asked Mr Welsh, who had previously assisted him with other communications, to help draft and file the unfair dismissal claim. Additionally, the letter from Dr Anthony Camuglia stated that the Applicant was cleared to return to work in his usual employment from 17 June 2024, indicating that his health had sufficiently improved by then.
This factor weighs against granting an extension of time.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant first became aware of the dismissal on 14 June 2024 when he resigned. That means he had the benefit of the full 21 days in which to file an application within time.
This factor weighs against granting an extension of time.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making the application on 19 July 2024.
This factor weighs against granting an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent did not assert any particular or special prejudice. I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
This is a neutral consideration.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[6] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
This is a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay (as stated above);
(b) the Applicant being aware of the dismissal at the time it took effect;
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[7] 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.[8]
Having considered all the matters that I am required to consider under s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances. In particular, although I am sympathetic to the Applicant’s condition, I am not satisfied that his medical condition and the impact it may have had, either individually or in combination, amounted to exceptional circumstances. As noted above, the Applicant demonstrated sufficient capacity to engage in various activities during the relevant period, and there is no compelling evidence to suggest that he was incapacitated from filing the application on time.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
Mr Mark Leighton for himself
Mr Robin Fardoulys for the Respondent
Hearing details:
2024
Melbourne (video using Microsoft Teams)
22 August 2024
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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