Matt Benny v Commonwealth of Australia as represented by Services Australia
[2021] FWC 3195
•4 JUNE 2021
| [2021] FWC 3195 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matt Benny
v
Commonwealth of Australia as represented by Services Australia
(U2021/3455)
DEPUTY PRESIDENT DEAN | CANBERRA, 4 JUNE 2021 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances.
[1] This decision concerns an application by Mr Matt Benny (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.
[2] The Applicant was employed by the Commonwealth of Australia as represented by Services Australia (the Respondent) until he resigned effective from 6 August 2018. His unfair dismissal application was lodged on 21 April 2021.
[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 application in the present matter was filed 968 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).
[4] The matter was listed for hearing by telephone on 3 June 2021. The Applicant appeared on his own behalf and Ms V Blakeley appeared for the Respondent.
[5] 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
[6] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
[7] 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.
[8] 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 this application.
Reason for the delay
[9] 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
[10] The Applicant cited the following as the reason for the delay in lodging the application:
“Matt was diagnosed with depression and anxiety (attached proof) most likely brought upon by his injury.
He got no support from his employer, the insurance company, Centrelink (attached) or any other source.
Shortly after diagnosis Matt joined his family overseas for support.
When Matt returned to Australia he was homeless during the bushfires, then his car (in which he was staying) was stolen (rego [details provided] reported to ACT).
When Matt returned to Australia in 2020 he was homeless once more (attached).
It is in late 2020 had the chance the first time to gather all documentation needed for submission.”
[11] The Applicant said that he found it difficult to get support and asserted that he had attempted to withdraw his resignation prior to taking effect. In cross examination however, the Applicant confirmed that during the conversation in question with his manager, he did not actually request that his resignation be withdrawn.
[12] After the hearing had concluded, the Applicant sent a statutory declaration in which he expanded on his response to a question in cross examination as to the reason for his resignation.
[13] The Applicant provided a medical certificate dated 27 May 2021 which indicates the Applicant is suffering from anxiety and depression and has been taking medication since 24 December 2020 which has improved his ability to think clearly.
[14] The Respondent submitted that there are no exceptional circumstances applicable to the Applicant’s request for an extension of time. The Applicant resigned voluntarily and was not dismissed.
[15] In terms of the applicant’s medical condition, the Respondent highlighted that there was no medical evidence before the Commission which supported a finding that his medical condition significantly impacted his ability to lodge his application within the required timeframe.
[16] Whilst the Respondent acknowledged the potential impact of the bushfires, the COVID-19 pandemic and homelessness may have had on the Applicant, the Respondent submitted that these events occurred in 2020 did not prevent the Applicant from making an application prior to 2020. Further, there was no acceptable reason provided by the Applicant to explain why it had taken from December 2020 (when he commenced medication) to 21 April 2021 to make his application.
[17] Having considered the evidence and submissions made by the parties, I find that the reasons provided by the Applicant do not constitute an acceptable reason for the delay. The medical evidence does not support a finding that the Applicant was incapacitated to such an extent that he was unable to make his application earlier than 21 April 2021. In particular, there is no acceptable reason the Applicant was unable to make an application prior to his return to Australia in early 2020, or after he commenced medication in December 2020.
[18] The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[19] The Applicant resigned and was aware that his employment with the Respondent ceased on 6 August 2018. I am therefore satisfied that the Applicant had the full 21 day period to lodge his unfair dismissal application. This factor does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
[20] The Applicant did not take any action to dispute the cessation of his employment until the present application was lodged. This factor does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
[21] The Respondent submitted that this consideration weighs against a finding of exceptional circumstances due to the significant prejudice to the Respondent in responding to the proceedings, as the 968-day delay presents a significant difficulty to the Respondent in responding to the matters raised by the Applicant.
[22] Further, the Respondent submitted it was prejudiced as the Applicant relies on medical evidence in relation to the state of his health in July 2018 when he provided his resignation, and the Respondent has limited ability to obtain independent medical evidence on this issue given the significant passage of time.
[23] I consider that prejudice will accrue to the Respondent if an extension of time were to be granted for the reasons contended by the Respondent. This weighs against a finding that there are exceptional circumstances.
Merits of the application
[24] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.
[25] On the evidence before me, it does not seem to be the case that the Applicant was placed in a position where he had no other choice but to resign. In all the circumstances, I am of the view that the merits of the application are therefore not likely to be strong. This weighs against the finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
[26] 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.
[27] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
[28] 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, 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
Appearances:
M Benny on his own behalf.
V Blakeley for Commonwealth of Australia as represented by Services Australia.
Hearing details:
2021.
Canberra (By telephone):
June 3.
Printed by authority of the Commonwealth Government Printer
<PR730420>
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].
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