Matthew Joseph v Workforce Road Services Qld Pty Ltd
[2024] FWC 2067
•2 AUGUST 2024
| [2024] FWC 2067 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Joseph
v
Workforce Road Services QLD Pty Ltd
(U2024/6883)
| COMMISSIONER P RYAN | SYDNEY, 2 AUGUST 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed
Introduction
This decision concerns an application by Mr Matthew Joseph (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).
In the Application, the Applicant states that his employment with Workforce Road Services QLD Pty Ltd (Respondent) was terminated with effect from 6 May 2024. The Application was made on 14 June 2024.
In its Form F3 Employer Response, the Respondent objected to the Application on the grounds that the Applicant resigned from his employment and that the Application was not made within 21 days of that date.
Section 394(2) of the FW 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 Fair Work Commission (Commission) allows pursuant to s.394(3). The Application was made 18 days outside the 21-day period. The matter was allocated to my Chambers to determine whether an extension of time will be allowed under s.394(3).
The matter was heard before me on 29 July 2024. The Applicant was self-represented. The Respondent was represented by its Senior Business Consultant, Mr D Slater.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).
Exceptional Circumstances
The FW 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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[3]
I now consider these matters in the context of the application.
Reason for the delay
The FW 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 an applicant’s favour, however all of the circumstances must be considered.[4]
Reason for the delay – Background
On 9 June 2022, the Applicant commenced employment with the Respondent as a traffic controller.
On 6 May 2024 the Applicant resigned from his employment with the Respondent.[5] The Applicant contends that during his employment he was bullied and harassed and was the subject of gossip and rumours within the workplace. The Applicant stated that this affected his mental health and that he had no choice but to resign as he could no longer work in a “toxic workplace.”
At 4.38pm on 7 May 2024, the Applicant sent an email to the Commission stating:[6]
to whom it may concern
my name is matthew (matt) joseph and i wish to take serious legal action against the company Workforce road services qld PTY LTD (abn 30644543279)
I have been assaulted (verbally several times) and ended up in hospital one night due to panic attack after assault
I have been bullied and harassed
i have been made to look like a liar (defanimation)
my name has been slandered.
me and my team have been discriminated against.
office has played “favourites” with other staff members causing me and my crew loss of income
my mental health has suffered severely from all this causing me to leave the company.
I have several witnesses to confirm all this and even have video evidence.
i look forward to hearing from you
[formatting/spelling as per original]
At 4:39pm on 7 May 2024, the Applicant received a response from the Commission which relevantly stated:
Thank you for your email to the Fair Work Commission.
If you have lodged an application we will endeavour to contact you with your case number within 7 business days. Normally we would contact you within 3 business days, but we are currently receiving a large number of applications.
If you have a question we will get back to you as soon as we can. In the meantime you can visit our website to get the information you need.
If you have been dismissed and think it’s unfair or discriminatory, you may be able to start a case at the Commission. There is a 21 day time limit to make those applications. Please don’t wait for us to respond if it means your application will be late. You can find out more about job loss and dismissal on our website.
You can also contact our workplace advice service to find out if you qualify for free legal advice.
On or about 11 May 2024, the Applicant made a workers compensation claim with WorkCover Queensland.
On 12 May 2024, the Applicant commenced employment as a traffic controller with Site Services Pty Ltd.
On or about 11 June 2024, made a telephone call to the Commission to follow up on his email enquiry of 7 May 2024. The Applicant stated that he was informed that he should complete and lodge an application for an unfair dismissal remedy and that he would need an extension of time.
Later that day, the Applicant completed the online lodgement form, but did not lodge it until 14 June 2024, because he needed to ensure there were sufficient funds on his credit/debit card to pay the application fee.
In the Application, the Applicant acknowledges that it was not made within 21 days and states that “I sent an email regarding all this to FWC on 7th May waiting for a response no one responded I followed up on it.”
Reason for the delay - Applicant’s Submissions
The Applicant submitted that he was originally intending to make an application for an order to stop bullying rather than an unfair dismissal application. The Applicant submitted that it was not until his telephone discussion with the Commission on or about 11 June 2024 that he became aware that he could make an unfair dismissal application in circumstances where he had resigned.
The Applicant stated that although he sent correspondence to the Commission the day following his resignation, pursuing any action against the Respondent at that time was not his priority.
The Applicant also stated that he was suffering from post-traumatic stress disorder and was “mentally stuffed.”
Reason for the delay - Consideration
I do not accept the Applicant has an acceptable or reasonable explanation for the delay for the following reasons.
First, to the extent that the Applicant was not aware that he could make an application for an unfair dismissal remedy, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[7]
Second, in relation to the Applicant’s mental health condition, the Applicant has not adduced any medical evidence, let alone any ‘compelling’ medical evidence, that he suffers from a mental health condition and that it had a material impact upon his capacity to make the Application within the statutory time limit.[8] Furthermore, the Applicant’s ability to make a workers compensation claim, obtain new employment, and his decision to prioritise other matters is inconsistent with the contention that he was incapacitated such to prevent making the Application within the statutory time limit.
In the absence of an acceptable explanation, this circumstance weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find, that the Applicant was aware that his employment ended on 6 May 2024 and therefore had the full period of 21 days to lodge the Application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[9]
However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[10]
It was not in dispute that on the day he resigned, the Applicant advised the Respondent that he would be taking the matter further.[11] I accept this action put the employer on notice that the events leading up to the Applicant’s resignation would be contested.[12] This circumstance weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time.
As set out above, the Applicant contends that he was subject to bullying and harassment in the workplace and had no choice but to resign. The Respondent denies the allegations.
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. Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person 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. I therefore consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. 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 under s.394(3).
The Application is dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
M Joseph, Applicant.
D Slater for the Respondent.
Hearing details:
2024.
Sydney (via Microsoft Teams video-link):
29 July.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[2] Ibid.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Exhibit A3 (Hearing Book at p.177, p.184).
[6] Exhibit A3 (Hearing book at p.188).
[7] Nulty at [14].
[8] Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd [2023] FWCFB 113 at [26]-[28] citing Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285; Victor Blanco v White Bathroom [2021] FWC 4694 at [44]-[51].
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[10] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
[11] Exhibit A3 (Hearing Book at p.184).
[12] Robyn Wishart v Noni B T/A Millers[2019] FWC 8063 at [25].
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