Matthew Holgate v Australian Home Care Services Pty Ltd
[2022] FWC 2298
•30 AUGUST 2022
| [2022] FWC 2298 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Matthew Holgate
v
Australian Home Care Services Pty Ltd
(U2022/6929)
| COMMISSIONER PLATT | ADELAIDE, 30 AUGUST 2022 |
Application for an unfair dismissal remedy – request for an extension of time – application granted.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Mr Matthew Holgate a further period for his unfair dismissal application (Application) to be made against Australian Home Care Services Pty Ltd (the Respondent).
Background
Mr Holgate lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with the Respondent which his form F2 Unfair Dismissal Application advised took effect on 15 June 2022.
The application was lodged on 7 July 2022, and as such was one day out of time.
The application did not recognise that it was made beyond 21 days from the date of dismissal.
On 15 August 2022, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 30 August 2022. 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.
On 23 August 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal took effect on 15 June 2022 and pressed the jurisdictional objection that the Application was lodged out of time. A Digital Court Book, comprising of the materials filed by both parties, was compiled and distributed to the parties prior to the Hearing. I accepted all of the material contained in the Digital Court Book as evidence, giving appropriate weight to evidence tainted by hearsay, opinion or irrelevance.
At the conclusion of the Hearing, I informed the parties that I believed that there were exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant. The reasons for this determination follow below.
Hearing
A Hearing was conducted by way of telephone conference on 30 August 2022. A sound file record of the telephone conference was kept. Mr Holgate represented himself at the Hearing, whilst the Respondent was represented by Ms Ayesha Khan.
Mr Holgate gave evidence at the Hearing. His position is summarised as follows:
· Mr Holgate was dismissed on 15 June 2022.
· He advised the Respondent on the day of his dismissal that he would be seeking the support of the Australian Services Union (ASU). Whilst the Applicant contends this is evidence that he contested the dismissal, viewed objectively the evidence only suggests that he would be speaking to the ASU and the Fair Work Commission.
· Mr Holgate contacted the ASU about 3 days after the dismissal and was advised of the 21 day time limit. The relevant ASU representative then went on leave.
· About 2 weeks after the dismissal, Mr Holgate calculated the date by which was required to lodge his unfair dismissal application from information that he read on the Commission’s website. Mr Holgate added an extra day to the correct timeline. He attributes this error to his medical condition. Mr Holgate downloaded the form F2 and completed it in the week following the calculation of this last day to file.
· When he lodged his application on 7 July 2022, Mr Holgate believed that he was within the statutory timeframe.
· Mr Holgate suffers from a range of physical and mental health conditions including type II diabetes and bipolar affective disorder. These conditions, which had previously been controlled, were affected by the trauma of being terminated. After his termination, Mr Holgate’s sugar levels were very high to the point that his diabetes was ‘uncontrolled’. Mr Holgate contended that these medical conditions combined to affect his ability to correctly calculate the timeframe by which he had to file his unfair dismissal application.
· Whilst Mr Holgate filed a letter written by his medical practitioner which listed a variety of medical conditions and noted that they “caused a small alpse (sic) in judgement about the due date by 1 day”, the author of this statement was not available for cross-examination. I have relied solely on the testimony of Mr Holgate.
· Mr Holgate said that he truthfully answered his pre-employment screening question (which specifically sought details of conditions for which the Respondent would have to provide services, aids or adjustments).
Respondent relied on its submissions and further contended:
· On 15 June 2022, the date of his termination, Mr Holgate indicated that he had already sought advice from his ASU representative. The Respondent contended that such advice would have likely included advice as to the relevant timeframe for lodging an unfair dismissal application.
· The Respondent was aware that Mr Holgate had been unwell on 15 June 2022, but they had been advised on 24 June 2022 that this medical issue had been resolved.
· As part of his pre-employment screening, Mr Holgate provided the Respondent with a declaration on 28 September 2021 that he did not have a health condition that may require provision of services, aids or adjustments and that he could adequately perform the requirements of the role.
I accept the evidence of Mr Holgate.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a similar position.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
…
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Consideration
Paragraph 394(3)(a) - reason for the delay
There is no dispute that the dismissal occurred on 15 June 2022 and that Mr Holgate was aware of it on the day.
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[5] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[6] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[7]
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
The delay in this matter is half a day.
In my view, the Applicant has provided a credible reason for the delay in filing his application. The stress of the dismissal combined with his medical conditions caused him to make an error when calculating the last day upon which he could file his application.
This factor weighs in favour of the granting of an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Mr Holgate was aware of the dismissal on the date it occurred.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[8]
The only action taken by Mr Holgate to contest the dismissal was the lodgment of his form F2 Application. This factor is a consideration against the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[9] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[10]
The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[11]
Despite a contention to the contrary during the Hearing, I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[12] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
At the conclusion of the Hearing, I issued my determination, and provided the parties with an opportunity to conciliate the matter. The matter did not settle at conciliation, and accordingly the matter will be re-allocated to a Member in the appropriate region for arbitration.
COMMISSIONER
Appearances:
M Holgate, the Applicant.
A Khan for the Respondent.
Hearing details:
2022.
Adelaide (by telephone):
August 30.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
[2] Section 394(3) of the Act
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] [2011] FWAFB 975
[5] 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]
[6] [2016] FWCFB 349
[7] [2018] FWCFB 3288 at [35]-[45]
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[9] Ibid
[10] Ibid
[11] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
[12] [2016] FWCFB 6963
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