Matthew Simari v Australian Aged Care Group Pty Ltd

[2020] FWC 403

[2020] FWC 403

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Simari
v
Australian Aged Care Group Pty Ltd
(U2019/11163)

DEPUTY PRESIDENT COLMAN MELBOURNE, 29 JANUARY 2020

Application for an unfair dismissal remedy – jurisdictional objection – application filed out of time – circumstances not exceptional – application dismissed

[1] This decision concerns an application by Mr Matthew Simari for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Mr Simari was employed as a personal care attendant by Australian Aged Care Group Pty Ltd (ACG). On 10 September 2019, he was dismissed for serious misconduct. According to the company, on 30 August 2019, Mr Simari engaged in a very abusive and threatening verbal tirade against the company’s director of care, Ms Catherine Klomp, causing her to fear for her safety, and resulting in Mr Simari being escorted from the premises by the police. Mr Simari contests the company’s characterisation of events and contends that his dismissal was unfair.

[2] ACG objects to Mr Simari’s unfair dismissal application on a jurisdictional ground, namely that the application was not lodged within 21 days after the dismissal took effect, as required by s 394(2)(a) of the Act.

[3] The jurisdictional objection was heard before me on 24 January 2020. ACG was represented by a paid agent, with permission under s 596 of the Act. Ms Claire Dewan, ACG’s human resources manager, gave evidence for the company. Mr Simari appeared and gave evidence on his own behalf.

[4] It is common ground that Mr Simari’s dismissal took effect on 10 September 2019 and that his unfair dismissal application was filed on 4 October 2019. Section 394(2) of the 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 Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 1 October 2019. Mr Simari’s application was therefore lodged three days late. He asks the Commission to grant a further period for the application to be made.

[5] The 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.’ The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty), 1 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.2

[6] The decision in Nulty concerned the expression ‘exceptional circumstances’ in the context of s 365 of the Act however its reasoning is also applicable to s 394(3). The requirement of 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 if it is fair in all the circumstances to do so.

[7] Section 394(3) requires the Commission to 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.

Reason for the delay

[8] The Act does not indicate what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable 3 or reasonable explanation.4 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd aFull Bench noted that 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 the applicant’s favour, however all of the circumstances must be considered.5

[9] Mr Simari advanced several reasons for the delay in lodging his application. First, he submitted that he was suffering severe mental health problems at and after the time of his dismissal, which he says were caused by the company’s conduct towards him. He attached to his application a one page ‘mental health plan’ dated 28 August 2019, signed by a doctor Eke Uzoho, which stated that Mr Simari suffers from depression and anxiety. The mental health plan predates the dismissal. Mr Simari contended, in effect, that he continued to suffer from the anxiety and depression referred to in the mental health plan at the time of his dismissal and throughout the period leading up to the day on which he filed his application.

[10] However, the mental health plan does not disclose any information from which it could reasonably be concluded that Mr Simari’s mental health condition prevented him from lodging an application on time or impeded him from doing so. Mr Simari said that his mental health condition is severe, and that his answers to the ‘K10’ questionnaire attached to the mental health plan reflect this. The mental health plan does not state that his condition is severe. The patient-completed questionnaire document presumably requires some clinical analysis. The clinical conclusion or diagnosis contained in the mental health plan is ‘depression and anxiety’. Even accepting that Mr Simari’s condition is severe, there is no evidence about how the condition affected his ability to lodge his unfair dismissal application or the delay. In some matters that come before the Commission, medical evidence is led about how a mental health condition has affected an applicant, indicating cognitive or other functional limitations that are associated with the relevant condition, from which one can identify or infer a reason for delay. However, there is no such evidence in the present case. I do not consider Mr Simari’s mental health condition to be an acceptable or reasonable explanation for the delay, nor in my view is such a condition itself an exceptional circumstance.

[11] Secondly, Mr Simari said that, following his dismissal, he worked with his union to try to ‘resolve’ his termination with the company. He was evidently hopeful that the company would change its decision to dismiss him. Mr Simari said in his application that on 4 October 2019, after what he says was ‘late’ notification from the union that the company would not change its decision to dismiss him, he immediately attended the Commission to lodge his application. However, I do not consider the fact that Mr Simari was seeking to have the employer change its mind constitutes an acceptable or reasonable explanation for his delay. He could have filed his application on time and continued these efforts.

[12] Thirdly, Mr Simari said that he was also waiting for his union to report back to him about its efforts to have the company amend statements in the termination letter to the effect that Mr Simari had acknowledged that he had committed misconduct. Mr Simari submitted that he wanted to use the corrected letter for his unfair dismissal application, and that he did not hear back from the union until 4 October 2019. But this is a not an acceptable or reasonable explanation for the delay. The application could have and should have been filed within the 21-day period, irrespective of whether a corrected letter was provided. The correctness or otherwise of the letter was something that could have been dealt with later. Further, there is no convincing evidence that the union was tardy in getting back to Mr Simari about the company’s position. I note that Mr Simari does not allege representative error on the part of the union, nor does the evidence suggest that there is any proper basis for such a contention.

[13] Fourthly, Mr Simari contended in his application that he was unaware that he was required to lodge his claim within 21 days of his dismissal taking effect. However, in Nulty, the Full Bench noted that ignorance of the statutory time limit is not itself an exceptional circumstance, and I do not consider it to be an acceptable or reasonable explanation for the delay in the present case. Mr Simari also said that he did not look into the time limit for filing his unfair dismissal application because of his mental health at the time. But again, he did not establish the link between his mental health condition and the delay.

[14] I do not consider that Mr Simari has made out an acceptable or reasonable explanation or combination of explanations for the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances warranting an extension of the 21-day period.

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

[15] Mr Simari’s application states that he was notified of the dismissal on 13 September 2019. In fact, the evidence shows that Mr Simari was first notified of his dismissal on 10 September 2019. The sequence of events following the incident on 30 August 2019 that led to the termination of Mr Simari’s employment was as follows.

[16] On 2 September 2019, ACG sent Mr Simari a letter stating that he was suspended on full pay and requiring him to attend a disciplinary meeting with Ms Klomp to discuss his conduct on 30 August 2019. On 10 September 2019, Mr Simari and a representative of the Health Workers Union (HWU) attended a meeting with Ms Klomp and Ms Dewan. Mr Simari was told that his employment was terminated with effect that day. At the request of the HWU representative, ACG agreed to allow Mr Simari a brief period to consider whether he would prefer to resign than to be dismissed. Ms Dewan said in evidence that she told Mr Simari that his employment would end on 10 September 2019, whether by dismissal or resignation. Mr Simari said that he could not remember Ms Dewan saying this. Ms Dewan’s evidence on this point was clear and convincing, and I accept it.

[17] The next day, the company was advised that Mr Simari did not wish to resign. On 13 September 2019, Ms Klomp sent Mr Simari a letter in which she noted that Mr Simari had admitted his serious misconduct and advised that he did not wish to resign. She stated that, ‘as we made clear at the meeting’, the termination of employment was effective from 10 September 2019.

[18] On 16 September 2019, the HWU wrote to ACG, disputing that Mr Simari had admitted to serious misconduct, and requesting that the letter be reissued without characterising Mr Simari’s responses to the allegations as admissions of serious misconduct. The HWU’s letter did not dispute the fact that Mr Simari’s employment had ended with effect from 10 September 2019. Ms Klomp agreed to amend the letter and did so on 16 September 2019. The revised letter stated that Mr Simari had admitted to inappropriate behaviour, rather than serious misconduct. It appears that Mr Simari was still not satisfied with the revised wording, however no further revised letter was issued.

[19] It is clear that Mr Simari was dismissed on 10 September 2019 and that he was notified of his dismissal on that date. The only outstanding question was whether the dismissal would be regarded as a resignation. Mr Simari decided that he did not want this to be the case. The company’s letter to Mr Simari on 13 September 2019 did not notify him of his dismissal. Rather. it confirmed what the company had already told him, namely that his employment ended on 10 September 2019.

[20] The consideration in s 394(3)(b) is ‘whether the person first became aware of the dismissal after it had taken effect’. Mr Simari ‘first became aware’ of the dismissal on the same day that it took effect, on 10 September 2019. He had the full period of 21 days to lodge his application. This consideration does not weigh in favour of an extension of time.

Action taken to dispute the dismissal

[21] Mr Simari said that following his suspension on 30 August 2019, he contested the allegations against him and that after his dismissal he disputed the termination of his employment. In particular, Mr Simari had a different account or characterisation of what occurred during the incident on 30 August 2019. ACG rightly points out that the union’s correspondence with the company did not demand reinstatement or some other remedy in relation to Mr Simaari’s dismissal, and that he did not dispute his dismissal in a legal sense. However, by contesting the company’s characterisation of events, he was in effect disputing its reason for dismissing him, and therefore, albeit somewhat indirectly, the dismissal itself. This factor weighs moderately in favour of an extension of time.

Prejudice to the employer

[22] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. I do not consider the mere absence of prejudice as a factor that would point in favour of granting an extension of time. It is a neutral factor. Some decisions of the Commission take a different view and see the absence of prejudice as telling in favour of an extension. But even adopting this approach, I would in the present case attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[23] The merits of the application turn significantly on contested points of evidence. Mr Simari says that his dismissal was unfair because he did not commit the serious misconduct of which he was accused. He says that it was Ms Klomp who was aggressive towards him, and that she accused him of not working. Mr Simari acknowledges that he raised his voice at Ms Klomp but says that he did not yell at her. He denies that Ms Klomp told him that she was scared. Mr Simari admits that Ms Klomp asked him to leave her office and that he did not do so but says that this was because he wanted to discuss the relevant issues, which related to earlier complaints raised against him by certain managers. The company maintains that Mr Simari abused and threatened Ms Klomp, and refused her requests that he leave her office, even after she told him that she was scared. It says that Ms Klomp was so fearful for her safety that the police not only attended the site but escorted Mr Simari from the premises.

[24] Mr Simari further contends that his dismissal was unfair because Ms Klomp had been made aware of what he describes as bullying and harassment against him in the workplace but had failed to investigate it. He says that Ms Klomp also bullied him, by giving him impossible tasks, not taking into account his workplace injury, changing the working hours that had been agreed in his recovery plan, and in various other ways. He says that he was dismissed because of or in connection with a workplace injury to his lower back, that Ms Klomp had spoken to him about this in a negative tone and required him to work in a manner inconsistent with his return to work plan. He says that ACG had a duty of care to look after his mental health but did not observe the duty. The company rejects these claims. It denies that Mr Simari was subjected to bullying or harassment. It denies that his dismissal had anything to do with his workplace injury. It says that the reason for dismissal was Mr Simari’s unacceptable mistreatment of Ms Klomp.

[25] Mr Simari says that he did not receive any warnings in relation to the conduct for which he was dismissed and that he did not have an opportunity to respond to the allegations. The company says that it is not necessary to warn a person about patently unacceptable and abusive behaviour. If the conduct occurred as the company alleges, I agree that there was no need for a warning. The company says that Mr Simari obviously had an opportunity to respond to the allegations, and that Mr Simari’s union was involved in the process. This is clearly the case.

[26] The factual contests in this matter can only be resolved through a proper consideration of witness evidence. The merits would depend on the factual findings that the Commission would need to make, if an extension of time were granted and the matter proceeded. Much would depend on assessments of witness credibility. If the company’s version of events is correct, Mr Simari’s unfair dismissal application would have little prospect of success. If Mr Simari’s account were to be accepted, his claim would have merit. Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[27] Applications to extend time generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Simari and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Other matters

[28] After the conclusion of the hearing, Mr Simari wrote to my chambers and stated that he had not been aware that the company could call Ms Dewan as a witness. By this I take him to mean that he did not know that she would be called, as no witness statement had been filed in advance of the proceeding. Mr Simari stated that, given his anxiety, he was unable to come up with questions for Ms Dewan that could have assisted his case. He said that it was unfair that Ms Dewan gave evidence without him having been notified in advance to allow him to prepare questions for her. In his message to my chambers, Mr Simari asked the Commission to take these submissions into account.

[29] Mr Simari did not raise any concern at the hearing about Ms Dewan’s giving evidence. He did not request an adjournment. He asked Ms Dewan some questions about the brief evidence she gave. Ms Dewan’s evidence chiefly concerned what occurred at the meeting on 10 September 2019. In my opinion, the only point of any significance in Ms Dewan’s evidence was her confirmation that Mr Simari was told at the meeting on 10 September 2019 that his employment would end that day, irrespective of whether he chose to resign. However, this was already clear from the documentary evidence, as this point was made by Ms Klomp in her letter to Mr Simari of 13 September 2019, and it was not contested by the HWU in its correspondence with the company. Even if Ms Dewan had not given evidence, I would have reached the same conclusion in this matter.

Conclusion

[30] The time limit that applies to the exercise of a person’s right to bring an unfair dismissal application reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there will be some cases where a late application may be accepted, namely where there are exceptional circumstances.

[31] Having regard to all of the matters that I am required to take into account under s 394(3), I am not satisfied that exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. The action taken by Mr Simari to dispute his dismissal weighs in favour of an extension of time, but none of the other considerations in s 394(3) do so. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[32] I decline to grant an extension of time under s 394(3). Mr Simari’s unfair dismissal application must therefore be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr M Simari for himself
Mr M Rahilly for Australian Aged Care Group Pty Ltd

Hearing details:

2020
Melbourne
24 January

Printed by authority of the Commonwealth Government Printer

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 1   [2011] FWAFB 975

 2   Ibid at [13]

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 4   Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39]