Matthew Lynch v BHP Os McAp Pty Ltd
[2022] FWC 2874
•26 OCTOBER 2022
| [2022] FWC 2874 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Lynch
v
BHP OS MCAP Pty Ltd
(U2022/8452)
| DEPUTY PRESIDENT LAKE | BRISBANE, 26 OCTOBER 2022 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Mr Lynch (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to a dismissal of his employment by BHP OS MCAP Pty Ltd (the Respondent).
The Applicant began his employment on 21 June 2020. It is uncontentious that the Respondent terminated the Applicant’s employment on 26 July 2022 and his application was lodged with the Commission on 17 August 2022.
Was the application lodged within time?
Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.
The Applicant lodged his application on 17 August 2022. He accepts that his application was made one day outside of the 21 days required under s.394(2) of the Act.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.
The Applicant’s submissions
The Applicant’s submissions may be summarised as follows.
The Applicant contends that notwithstanding the letter of termination provided to him on 26 July 2022, he did not consider himself terminated from the role until he had received his final pay comprising 4 weeks’ notice paid in lieu of working. The Applicant asserts that he was not paid until 19 August 2022, two days after the statutory deadline. The Applicant felt that the Respondent delayed the payment and he was concerned that an application may impact his final payment.
Further, the Applicant asserts that he has dyslexia and ‘a high degree of Asperger’s’ which increased the degree of difficulty in meeting the deadline.[1] The Applicant sets out in his written submissions that he mistook or miscalculated the 17 August 2022 as being the 21st day following termination and believed that he had in fact met the statutory timeframe.
The Respondent’s submissions
The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions may be summarised as follows.
Following a show-cause process where allegations were put to the Applicant, the Applicant was dismissed on 26 July 2022.
The Respondent asserts that the Applicant miscalculating the 21 days is not a valid reason to explain the delay.
The Respondent relied on Murray v Ambulance Victoria[2] regarding the weight which should be attributed by the Commission to a miscalculation of the statutory deadline. Bisset C observed in Murray:
“while it is the period of the delay which is relevant, the lack of activity by Mr Murray prior to the expiration of the 21 days tells against an adequate explanation for the delay.”[3]
Here, as was the case in Murray, the Applicant did little to action his unfair dismissal bid until after the deadline had passed.
The Respondent does not accept the Applicant’s contentions that his dyslexia significantly contributed to the miscalculation of the 21-day statutory timeframe relevant here.
The Respondent relies on the decision of Battigelli v Respiratory West Pty Ltd[4] within which Beaumont DP noted:
“the absence of evidence to corroborate that the Applicant was so incapacitated that they were unable to make an unfair dismissal within the requisite period.”[5]
As in Battifelli, the Respondent highlighted the absence of any medical evidence upon which the Commission could rely on regarding the impact of the Applicant’s disability.
The Respondent provided that the Applicant did not dispute his termination following his dismissal apart from his unfair dismissal application. There was no prejudice raised and no other employee was in a similar position.
Consideration of whether a further period should be granted
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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 like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[6] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[7] the Full Bench of Fair Work Australia stated that:
“[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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 394(3) of the Act.
Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[8] or a reasonable explanation.[9] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[10] the Full Bench noted at [39]:
“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 reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[11]
There were a range of different matters raised concerning the reason for the delay.
Firstly, the Applicant did not consider his termination to take effect until he had been paid his 4 weeks’ notice period. The Applicant agreed that his letter of termination set out an effective date of 26 July 2022 and further that it said he would be “paid in lieu of notice of termination”. The explanation for the delay puts the reason for the delay solely with the Applicant, his inattention to detail (in calculating the 21-day timeframe) and his decision to not make his application until one day after the statutory deadline.
That the Applicant may have been confused and did not understand what date was relevant does not provide an explanation for the delay. The Applicant could easily have found out.
Secondly, there was reliance placed on health conditions suffered by Applicant which he claimed contributed to the reason for the delay. Besides the statement that Mr Lynch suffered from dyslexia and Asperger’s Syndrome, there was no evidence that his condition made him incapable of filing the application within the statutory timeframes. He has actively engaged in oral and written communication with various persons about his termination in the Commission.
I am not satisfied that any of the matters set out above, taken on their own constitute exceptional circumstances, and neither am I satisfied that all the reasons given for delay taken together are exceptional circumstances tending to support an extension of time.
The Applicant became aware of his dismissal on 26 July 2022 by way of letter from the Respondent. This consideration therefore does not weigh in favour of an extension of time.
While I accept the Applicant’s concerns, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant was informed of his dismissal on 26 July 2022, this was followed by an email with a letter attached, confirming the date of his dismissal with the Respondent. This consideration therefore does not weigh in favour of an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not contest the dismissal generally with the Respondent.
This factor therefore does not weigh in favour of an extension of time.
Prejudice to the employer (s.394(3)(d))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[12] I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[13] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[14]
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[15]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Transcript at PN17.
[2] [2022] FWC 215.
[3] Ibid at [29].
[4] [2022] FWC 25.
[5] Ibid at [23].
[6] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[7] [2019] FWC 25.
[8] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[9] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[10] [2018] FWCFB 901.
[11] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[13] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[14] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[15] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
Printed by authority of the Commonwealth Government Printer
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