Matthew Ryan v Bayside Council

[2022] FWC 834

[2022] FWC 834

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew Ryan
v

Bayside Council

(U2022/900)

COMMISSIONER MCKINNON SYDNEY, 11 APRIL 2022

Application for extension of time to file unfair dismissal application – application refused.

1. Mr Matthew Ryan has applied for a remedy for unfair dismissal from Bayside Council, which forms part of the local government of New South Wales. The dismissal took effect on 17 December 2021 and the application was made on 19 January 2022, 12 days late.[1]

1. Bayside Council objects to the application both because it was lodged more than 21 days after the dismissal took effect and because the Council is not a national system employer.

1. The application for an extension of time was heard on 11 April 2022. I decided not to allow additional time for Mr Ryan to make the application to the Commission and dismissed the application. These are my reasons for refusing additional time to Mr Ryan.

Should additional time for making the application be allowed?

1. Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) provides 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. A further period can only be allowed if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.

1. The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[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.”[3] [Emphasis added]

1. Section 394(3) of the Act sets out the matters that must be taken into account in relation to whether there are exceptional circumstances. These are:

· the reason for the delay;

· whether the person first became aware of the dismissal after it had taken effect;

· any action taken by the person to dispute the dismissal;

· prejudice to the employer (including prejudice caused by the delay);

· the merits of the application; and

· fairness as between the person and other persons in a similar position.

The reason for the delay

1. Mr Ryan’s explanation for the delay is “difficulty in getting a 21 day appropriate response from my personal lawyer and the Fair Work Commission over the Christmas holiday period”; also explained as “due to the Christmas holiday period as I was terminated on the 17/12/2021 and had difficulty in having discussions with my lawyer on your office due to business being closed for part of that period”. At the hearing, Mr Ryan further explained that he did not know about the 21‑day time limit and that some of his emails went to his junk mail folder.

1. These are not exceptional circumstances. The Christmas holiday period and related law firm closures are ordinary annual events. There is also no evidence to support the implication that steps were taken to obtain advice over this period, although Mr Ryan has obtained some form of legal advice since the dismissal.

1. Mr Ryan was on notice from at least 2 December 2021 that Bayside Council was considering the termination of his employment due to non-compliance with its COVID-19 vaccination policy. It had communicated with Mr Ryan since at least August 2021 in relation to the policy and its requirement that he provide evidence of vaccination or a valid medical exemption by 15 November 2021. In my view, Mr Ryan had sufficient opportunity to seek advice about these matters, including their likely consequence for his ongoing employment and his options if that eventuated, in the latter half of 2021 as well as on or after 17 December 2021.

1. Further, Mr Ryan’s application form is dated 7 January 2022. Had the application been filed on the same day that it was completed, it would have been in time. The only explanation for the subsequent 12‑day delay in lodging his application is miscommunication – including that some of Mr Ryan’s emails went to his junk email. It is not clear who these emails were from, or what information Mr Ryan may have missed that contributed to the filing delay.

Whether the person first became aware of the dismissal after it had taken effect

1. Mr Ryan was notified of the decision to terminate his employment with immediate effect in person, during a telephone call with Bayside Council on 17 December 2021. The decision was then confirmed in writing.

Any action taken by the person to dispute the dismissal

1. Other than beginning to fill in the application form, Mr Ryan did not take any steps to dispute the dismissal until the application was made to the Commission.

Prejudice to the employer (including prejudice caused by the delay)

1. The application is 12 days late. There is no significant prejudice to Bayside Council if the matter is allowed to progress despite the delay.

The merits of the application

1. Mr Ryan’s application cannot succeed if Bayside Council is successful in establishing that it is not a national system employer. If that argument fails, Mr Ryan also faces the not insignificant hurdle of establishing that the direction to attend work, and related directions to provide evidence of COVID-19 vaccination or valid medical exemption were not reasonable and lawful directions at the time they were given. There may be other circumstances that go to the fairness or otherwise of the dismissal, but they are not before me. On the face of the record, the merits of the case are not strong.

Fairness as between the person and other persons in a similar position

1. There is no apparent issue of fairness as between Mr Ryan and other employees of Bayside Council.

Conclusion

1. There are no exceptional circumstances in this case that would permit an extension of time for the application to be made. Even if there were, I would not exercise my discretion to extend the time in favour of Mr Ryan. This is because the considerations above either do not support the exercise of discretion or tend against it.

1. The application is dismissed.

COMMISSIONER

Appearances:

M Ryan on his own behalf.
J Scully-Leaf for the Respondent.

Hearing details:

2022.
Sydney (by video):
April 11.

[1] Fair Work Act 2009 (Cth), s.394(2).

[2] [2011] 203 IR 1.

[3] Ibid [13].

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