Michael Sinclair v Australian Home Care Service Pty Ltd

[2023] FWC 2210

[2023] FWC 2210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael Sinclair
v

Australian Home Care Service Pty Ltd

(U2023/7429)

DEPUTY PRESIDENT COLMAN MELBOURNE, 1 SEPTEMBER 2023

Application for an unfair dismissal remedy – whether to extend time – application dismissed

1. Michael Sinclair (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Australian Home Care Service Pty Ltd, which trades as Claro Aged Care and Disability Services (respondent), objects to the application because it was filed out of time. Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant’s employment was terminated on 7 July 2023. The 21-day period ended on 28 July 2023. The application was lodged on 10 August 2023. In order for the application to proceed, the applicant requires the Commission to grant an extension of time. On 1 September 2023 I conducted a recorded conference to determine this matter.

1. The Act allows the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: 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.

1. In respect of the reason for the delay (s 394(3)(a)), the applicant submitted that he was overwhelmed following his dismissal and had to collect his thoughts. This is understandable, but it is not a good reason for delay, nor is it an exceptional matter. The applicant also said that when he began preparing his F2 application, he did not know exactly who his employer was. By this I understand him to mean that he did not know how to identify the respondent in the F2. This is not a good reason for the delay. First, the name of the applicant’s employer is clearly stated on his payslips, which the respondent submitted to the Commission. Secondly, if the applicant did not know the name of his employer, he could have asked the executive general manager, with whom he corresponded about alleged outstanding payments following his dismissal. In any event, not knowing the legal name of the respondent was not a good reason for the delay. An imprecise or incomplete application can be amended after it has been lodged. In the end, the applicant lodged his F2 document, simply specifying ‘Claro’ as the respondent. He could have done this within the 21-day period and amended it later. The applicant’s reasons for delay weigh against an extension of time.

1. The considerations in ss 394(3)(b), (d) and (f) are all neutral factors: the applicant learnt of his dismissal on the day it occurred; there is no relevant prejudice to the employer; and I do not consider that there are any matters that are relevant to the question of fairness between the applicant and other people. As to s 394(3)(c), the applicant protested his dismissal on the day it occurred. This weighs marginally in favour of an extension.

1. As to the merits (s 394(3)(e)), the applicant stated that his dismissal was unfair because he was terminated for raising his voice, and because he had received no prior warnings about his behaviour. The respondent said that the applicant had been dismissed for swearing in the face of coworkers and invading their personal space, and that when it put the allegations to the applicant he did not deny them. Based on the information before me, I consider that the applicant’s prospects of success are low. The merits tell against an extension of time. But even if the merits were neutral, it would not affect my conclusion.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking account of the matters in s 394(3), I am not satisfied that there are such circumstances in this case. The application is dismissed.

DEPUTY PRESIDENT

Hearing details:

2023
Melbourne
1 September

Appearances:
M. Sinclair for himself
D. Aliotta for the respondent

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