Mark O'Dwyer v BlueScope T/A BlueScope Steel

[2020] FWC 2874

[2020] FWC 2874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark O’Dwyer
v
BlueScope T/A BlueScope Steel
(U2020/6904)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 2 JUNE 2020

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Mr Mark O’Dwyer (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant’s employment with BlueScope Steel Limited (Respondent) was terminated with effect on 6 April 2020. The unfair dismissal application was lodged on 19 May 2020.

[3] 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 27 April 2020. The application was therefore filed 22 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 Respondent opposes this request.

[4] 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

[5] 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.

[6] 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.

[7] 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 now consider these matters in the context of the Application.

Reason for the delay

[8] 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. 3

[9] The Applicant contends that the delay in filing his unfair dismissal application was due to his union, the Australian Workers’ Union (AWU), telling him they would file his unfair dismissal application but they did not do so.

[10] A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 4 In Clark v Ringwood Private Hospital,5 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

•  Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

•  A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

•  The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

•  Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.

[11] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 6

[12] According to the Applicant’s evidence, the chronology of relevant events concerning his communications with the AWU in relation to his dismissal and the filing of his application were as follows. Before his dismissal, Mr Shane Burd, AWU State Organiser, told the Applicant that he would “put in the paper work for unfair dismissal if [he] was sacked”. On 6 April 2020, the Applicant was notified by the Respondent of his dismissal with immediate effect. On 14 April 2020, the Applicant had his first communication with the AWU following his dismissal; the Applicant called Mr Burd, by telephone, and spoke to him for three minutes and 41 seconds 7 to “check up on things”.8 Mr Burd told the Applicant that he was “putting in the paper work for unfair dismissal”. Some time went by and the Applicant did not hear anything but he was not worried because he thought it was because of COVID-19.

[13] On 8 May 2020, the Applicant rang Mr Burd and spoke to him, by telephone, for two minutes and 35 seconds. Mr Burd told the Applicant that he had three people working on his case, including a solicitor from the AWU. They discussed a return to work capacity certificate. The Applicant says that he got the impression from his discussion with Mr Burd on 8 May 2020 that the AWU was not interested in representing the Applicant in his unfair dismissal claim and did not think “it was worth doing”. The Applicant could not recall in his evidence precisely what Mr Burd said to give him this impression. The Applicant also says that Mr Burd did not tell him in this or any other conversation that the AWU was not going to, or would not, file his unfair dismissal application.

[14] On 15 May and again on 18 May 2020, the Applicant left messages for Mr Burd to return his call. Mr Burd did not return either of those calls. The Applicant then completed his unfair dismissal application himself and lodged it in the Commission on 19 May 2020.

[15] At some time during May 2020, the Applicant became aware for the first time of the 21 day time limit for filing an unfair dismissal application. That was when the Applicant was chasing Mr Burd.

[16] The Applicant did not seek to call Mr Burd or any other person from the AWU to support his application for an extension of time to lodge his unfair dismissal application.

[17] I will now assess the Applicant’s explanation for the delay.

[18] The only communication the Applicant had with any person from the AWU during the 21 day time period after his dismissal was on 14 April 2020. The Applicant’s discussion with Mr Burd on that day was for only three minutes and 41 seconds. The Applicant then did not take any steps to follow up the preparation or lodgement of his unfair dismissal application until his next discussion with Mr Burd on 8 May 2020, some 32 days after his dismissal and 11 days after the 21 day period expired. At that time the Applicant got the impression from speaking to Mr Burd that the AWU was not interested in representing him in his unfair dismissal claim and did not think “it was worth doing”. Notwithstanding the fact that he had that impression on 8 May 2020, the Applicant did not attempt to contact Mr Burd until 15 May 2020, and again on 18 May 2020, when he left voicemail messages for Mr Burd to return his call. Having regard to these facts and circumstances, I am of the view that:

•  the Applicant’s conduct was a significant contributing factor in the delay in filing his unfair dismissal application. In particular, the Applicant only had one very short discussion with Mr Burd in the 21 day period after his dismissal and did not follow up the AWU or take other steps to ensure they had the information they required, in a timely manner, to complete his unfair dismissal application. Further, in the period between the conclusion of the 21 day period on 27 April 2020 and the filing of the unfair dismissal application on 19 May 2020, the Applicant only had one discussion with Mr Burd. That discussion took place on 8 May 2020, the result of which was the Applicant having the impression that the AWU was not interested in representing him in his unfair dismissal claim and did not think “it was worth doing”. Yet he did not take any steps to file his application for a further week, at which time he placed the first of two calls to Mr Burd. On 19 May 2020, four days after he made the first attempted call to Mr Burd (15 May 2020), the Applicant filed his application; and

•  the AWU contributed to the delay in the filing of the Applicant’s application because, according to the evidence given by the Applicant in these proceedings, Mr Burd told the Applicant on 14 April 2020 that he was “putting in the paper work for unfair dismissal”, but he did not do so and did not tell the Applicant that he would not do so. In my assessment, the AWU’s contribution to the delay was less significant than the Applicant’s conduct to which I have referred.

[19] On balance, I am of the view that the Applicant does not have an acceptable or reasonable explanation for the whole of the delay and this weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[20] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[21] The Applicant did not take steps to dispute his dismissal, other than by filing his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[22] I cannot identify any 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

[23] 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 Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. Those contested factual matters include whether, as the Applicant contends, the Respondent made its decision to terminate the Applicant’s employment on the basis of incorrect reports about MRI scans which were 26 months old and whether the Applicant was ‘blackmailed’ by an employee of the Respondent to sign a consent form for a medical assessment. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence that it made its decision to dismiss the Applicant on the grounds of medical incapacity after having the Applicant assessed by a medical specialist. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[24] 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 brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[25] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, 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, the application for an unfair dismissal remedy must be dismissed.

Deputy President Saunders

Appearances:

M O’Dwyer, on behalf of himself

L Maroun solicitor, with A DeBoos, on behalf of the Respondent

Hearing details:

2020.

Newcastle:

1 June.

Printed by authority of the Commonwealth Government Printer

<PR719833>

 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   See, for example, C. Davidson, Print Q0784, 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759; Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long v Keolis Downer[2018] FWCFB 4109

 5 (1997) 74 IR 413 at 418-9

 6   Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 at [17]; Long v Keolis Downer[2018] FWCFB 4109

 7   Ex A3

 8   Ex A2