Michael Wallace v Ronstar Pty Ltd as trustee for the Suffolk Park Tavern Trust
[2024] FWC 3515
•17 DECEMBER 2024
| [2024] FWC 3515 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Wallace
v
Ronstar Pty Ltd as trustee for the Suffolk Park Tavern Trust
(U2024/12694)
| COMMISSIONER CRAWFORD | SYDNEY, 17 DECEMBER 2024 |
Unfair dismissal application filed out of time – no exceptional circumstances – extension of time not granted – application dismissed.
Background
Michael Wallace commenced working at the Suffolk Park Hotel which is located near Byron Bay in New South Wales on 15 June 2022. Mr Wallace was employed by Ronstar Pty Ltd as trustee for the Suffolk Park Tavern Trust (Suffolk Park). Mr Wallace was informed that his employment was terminated during a phone call with Mitch Loane (Hotel Manager) on 12 September 2024. Mr Wallace filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 23 October 2024. Given the dismissal date of 12 September 2024, the 21-day filing period ended on 3 October 2024. Mr Wallace’s application was filed 20 days after that deadline. As a result, Mr Wallace requires an extension of time to file the unfair dismissal application. This decision concerns whether an extension of time should be granted pursuant to s.394(3) of the FW Act.
I issued directions for the filing of material and listed a determinative conference/hearing for 12 December 2024 via video. Mr Wallace represented himself at the determinative conference/hearing. Tony Farrell (Owner/Managing Director) represented Suffolk Park. The parties agreed with my provisional view that the proceeding should be conducted as a less formal determinative conference.
Material filed
Mr Wallace
Mr Wallace’s unfair dismissal application contains evidence about why he missed the 21-day filing period and why he says he was unfairly dismissed. I marked Mr Wallace’s application Exhibit A1.
Mr Wallace provided further evidence in an email to the Commission dated 18 November 2024. Mr Wallace’s email addressed the factors in s.393(3) of the FW Act. Mr Wallace identified that the delay in filing his application was due to a medical condition. I marked Mr Wallace’s email Exhibit A2.
Mr Wallace’s email had a medical certificate attached from Dr Douglas Mouncey which was dated 24 October 2024. Dr Mouncey’s certificate identifies a diagnosis of anxiety and depression and states the onset date for that condition was 12 September 2024. The certificate indicates Mr Wallace was incapacitated for work from 12 October 2024 to 12 November 2024. During the determinative conference Mr Wallace stated Centrelink has a previous certificate covering the period of 12 September 2024 to 12 October 2024. I marked the medical certificate dated 24 October 2024 Exhibit A3.
Mr Wallace also filed character references from Benjamin Crick and Stephen Anderson. I marked these references Exhibits A4 and A5 respectively.
Mr Wallace was not required for cross-examination in relation this evidence.
Mr Wallace provided oral submissions at the end of the determinative conference.
Suffolk Park
Suffolk Park relied on an email from Mr Loane dated 27 October 2024 which outlines alleged issues with Mr Wallace’s conduct and performance from November 2023 through to 12 September 2024. I marked Mr Loane’s email Exhibit R1. Mr Loane was not required for cross-examination.
Suffolk Park relied on an email from Letti Oiski (employee) dated 17 October 2024. The email contains evidence about Mr Wallace’s conduct on 10 September 2024. Ms Oiski alleges Mr Wallace swore aggressively at her while expressing frustration about not having been involved in a function held on that day. I marked Ms Oiski’s email Exhibit R2. Ms Oiski was not required for cross-examination.
Suffolk Park relied on a statement from Suzie Farrell. Ms Farrell provides evidence about seeing Mr Wallace at the Suffolk Park Hotel on 21 September 2024 having a beer in the sports bar. Ms Farrell says Mr Wallace subsequently sent a message to Ms Farrell requesting to catch up over a coffee. Ms Farrell says Mr Wallace then sent a lengthy text message on 30 September 2024 asking for his job back. Ms Farrell then had a coffee with Mr Wallace on 3 October 2024 to discuss his situation. Ms Farrell stated she did not have authority to offer Mr Wallace his job back and the concerns about his conduct and performance were discussed. Ms Farrell states she was later contacted by Matt Brun on 16 October 2024 who referred to lodging an unfair dismissal claim on behalf of Mr Wallace and requested a discussion beforehand. Ms Farrell provided a document with the messages sent by Mr Wallace on 30 September 2024 and Mr Brun on 16 October 2024 attached. I marked Ms Farrell’s statement Exhibit R3 and the document containing the message content Exhibit R4.
Suffolk Park relied on a screenshot of text messages exchanged between Mr Wallace and Mr Loane. Mr Wallace requests some casual hours in the bottle shop or sports bar on 7 October 2024. Mr Loane responded on 11 October 2024 indicating he did not really know what to say. I marked these messages Exhibit R5.
Suffolk Park relied on a text message sent by Mr Wallace to Mr Farrell on 12 September 2024 asking him to call back. Mr Farrell says a conversion subsequently occurred. I marked this message Exhibit R6.
Suffolk Park relied on a text message sent by Mr Farrell to Mr Brun on 16 October 2024 where Mr Farrell suggested Mr Brun should file a claim on behalf of Mr Wallace. I marked this message Exhibit R7.
Mr Farrell provided oral submissions at the end of the determinative conference.
Statutory provisions
Under s. 394(3) of the FW Act, the Commission may 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:
(a) the reason for the delay; and
(b) whether Mr Wallace first became aware of the dismissal after it had taken effect; and
(c) any action taken by Mr Wallace 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 Mr Wallace and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
Consideration – should an extension of time be granted?
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 3 October 2024. The delay is the period commencing immediately after that time until 23 October 2024, although circumstances arising prior to that period may be relevant to the reason for the delay.[2]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3]
Mr Wallace does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Wallace has not provided any reason for any part of the delay.[4]
Mr Wallace primarily relied on his medical condition as the reason for the delay in the filing of his unfair dismissal application.
It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[5] The stress or distress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[6]
I accept the medical evidence of Dr Mouncey that Mr Wallace has been suffering from anxiety and depression since 12 September 2024.
However, I am not satisfied on the evidence that Mr Wallace’s medical condition prevented him filing an unfair dismissal application until 23 October 2024. It is clear Mr Wallace’s medical condition did not prevent him discussing his dismissal with Mr Farrell, Ms Farrell and Mr Loane between the date of his dismissal on 12 September 2024 and the filing of his application on 23 October 2024. Mr Wallace also accepts he was able to play golf and drink at the Suffolk Park Hotel in that period. While I have sympathy for Mr Wallace’s circumstances, I am not satisfied on the evidence that his medical condition is a satisfactory explanation for the delay in the filing of his application. The evidence also suggests Mr Wallace considered he would have been fit to return to work after the date of his dismissal if Mr Farrell had agreed he could have his job back.
Mr Wallace also referred during the determinative conference to not being aware of his legal rights. However, it is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[7] Mr Wallace’s alleged lack of awareness about his legal rights is not a satisfactory explanation for the delay.
I find Mr Wallace does not have an adequate explanation regarding the delay in the filing of his unfair dismissal application. I find this factor weighs against a finding of exceptional circumstances and the granting of an extension of time.
Did Mr Wallace first become aware of the dismissal after it had taken effect?
Mr Wallace became aware of the dismissal when it was communicated during a phone call with Mr Loane on 12 September 2024. I consider this is a neutral factor.
What action was taken by Mr Wallace to dispute the dismissal?
It is clear Mr Wallace made several attempts to get his job back after being dismissed. I consider that can be characterised as action taken to dispute the dismissal. Mr Wallace also sought assistance from Mr Brun. I find this factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
Mr Farrell referred to Suffolk Park suffering prejudice because Mr Wallace has been discussing his unfair dismissal application with patrons and associates of the Suffolk Park Hotel. I accept that would cause a degree of damage to the business. However, I do not consider that is prejudice linked to the late filing of the unfair dismissal application. I find prejudice to be a neutral factor.
What are the merits of the application?
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 s.366(2)(d)”, or in this case, s.394(3)(e).[8]
Both parties have vastly different accounts of events during Mr Wallace’s employment. I cannot make findings concerning the contested facts at this stage of the proceeding. I find merits to be a neutral factor.
Fairness as between Mr Wallace and other persons in a similar position
Neither party argued fairness between Mr Wallace and other persons in a similar position is relevant in this case. I find this be a neutral factor.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, 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.[9] 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.[10] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.[11]
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that Mr Wallace has cleared the “high hurdle” of establishing exceptional circumstances. I have found that Mr Wallace does not have a satisfactory reason for the delay. I do not consider Mr Wallace’s actions taken to dispute the dismissal to be sufficient to establish that there are exceptional circumstances.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances
Mr Wallace representing himself.
Mr Farrell for Suffolk Park.
Determinative conference:
2024.
Sydney (by video via Microsoft Teams).
12 December.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] (‘Stogiannidis’).
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis, [39].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[5] See Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda) [2018] FWCFB 1643, [38], [67].
[6] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1, [14].
[8] Ibid [36].
[9] Ibid [13].
[10] See ibid.
[11] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21].
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