Matthew Kenney v Marshall Electric
[2022] FWC 2664
•4 OCTOBER 2022
| [2022] FWC 2664 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Kenney
v
Marshall Electric
(U2022/8319)
| COMMISSIONER SCHNEIDER | PERTH, 4 OCTOBER 2022 |
Application for an unfair dismissal remedy
Mr Matthew Kenney (the Applicant) has made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Marshall Electric (the Respondent).
This Decision is an edited version of the ex-tempore decision delivered at the conclusion of the hearing in this matter on 3 October 2022.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. Before proceeding with the application, the Commission must be satisfied that the application was not made out of time.
The parties agree, and I so find, that the dismissal took effect on 20 July 2022 and the application was made on 12 August 2022, some 23 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.
The Commission holds discretion to 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 the matters set out at subsection 3 of section 394 of the Act. Those matters are:
(a) the reason for the delay;
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
As the Full Bench confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors,[1] each of these matters must be considered in assessing whether there are exceptional circumstances.
Consideration
The first matter is the 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 10 August 2022. As a majority of the Full Bench noted in Shaw v ANZ Bank,[2] the delay is the period commencing immediately after that time until 12 August 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.
The reason for the delay is not in itself required to be an exceptional circumstance.[3] It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances. An applicant does not need to provide a reason for the entire period of the delay.[4] 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.
The Applicant submitted that the delay was for the following reason:
· He was unwell with COVID-19 for a period of 10 days prior to submitting his application.
The Applicant provided an email to the Chambers of Vice President Catanzariti which stated:
“Please find attached information regarding extra information . I was extremely sick with the coronavirus and prior to myself being infected I had my wife and two small children also very sick. Please proceed with my application.”
The Applicant’s email contained a screenshot of a text message received from WA Health; the text message confirmed that the Applicant’s final day of isolation was 3 August 2022. This is 7 days prior to the 21-day deadline of 10 August 2022.
The Applicant was provided with further time to tender any other supporting documentation, but he elected not to.
The Applicant has not produced any material which would excuse him not filing the application during the period of his isolation ending and the 21-day time limit. Nor has the Applicant addressed the period following the termination up until the day he received his positive COVID-19 test. I note that a reason does not have to be provided to account for the entire period. However, I am not swayed that this brief infection within the 21-day period is exceptional on its own.
On the evidence before me, I do not find that the Applicant’s COVID-19 infection and isolation alone gives rise to exceptional circumstances. The Applicant did not provide any material which would support a finding that the Applicant’s COVID-19 was severe enough as to hinder him making his application within the time frame.
Having considered the evidence, I find that the reason for the delay is not exceptional, and on its own, would not give rise exceptional circumstances. As noted, the reason for delay does not need to be exceptional on its own to grant an extension of time.
Whether the Applicant first became aware of the dismissal after it had taken effect
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
Action, if any, taken by the Applicant to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 12 August 2022.
Prejudice to the employer (including prejudice caused by the delay)
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
Merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the application and response forms.
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. As noted by the Full Bench in Nulty v Blue Star Group,[5] 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 an application for an extension of time.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission 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.
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. I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Are there exceptional circumstances
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.[6] 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.
In consideration of the materials before me, and in assessment of the above factors, I am not satisfied that there are exceptional circumstances. I find the circumstances of this matter, in isolation and combined, do not give rise to the Commission exercising its discretion to grant an extension of time.
Having regard to all of the matters at subsection 3 of section 394 of the Act, I am not satisfied that there are exceptional circumstances.
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.[7]
COMMISSIONER
Appearances:
M Kenney, Applicant.
J Marshall, Respondent.
Hearing details:
Perth (by video).
2022:
October 4.
[1] [2018] FWCFB 901.
[2] [2015] FWCFB 287, at [12].
[3] [2018] FWCFB 901, at [39].
[4] [2018] FWCFB 901, at [40].
[5] [2011] FWAFB 975, at [36].
[6] [2011] FWAFB 975, at [13].
[7] [PR746463].
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