Mr Benjamin Andrews v Valley Care Incorporated

[2025] FWC 20

[2025] FWC 20

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Benjamin Andrews
v

Valley Care Incorporated

(U2024/12945)

COMMISSIONER REDFORD MELBOURNE, 3 JANUARY 2025

Unfair dismissal application filed out of time – no satisfactory reason for delay - no exceptional circumstances – application dismissed

Background

1. Mr Benjamin Andrews has made an application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging he was unfairly dismissed by Valley Care Incorporated (Valley Care). Mr Andrews’ employment ended with Valley Care effective on 27 May 2024. His application was filed in the Commission on 29 October 2024 and is 134 days out of time. Valley Care objects to the application on this basis and also claims the dismissal was a case of genuine redundancy.  

1. Valley Care is a not-for-profit organisation operating in the disability and gardening sectors. 

1. Mr Andrews was engaged by Valley Care as an apprentice landscaper in October 2022. 

1. Due to an apparent downturn in trade, Valley Care ended the 2023/24 financial year in deficit and projected a further deficit for the 2024/25 unless action was taken.

1. After Valley Care employees were advised on 21 May 2024 about possible staff reductions due to its financial position, Mr Andrews was advised, in writing, on 22 May 2024 (in a letter dated 21 May 2024) that his position was “likely to be made redundant”. On 24 May 2024, Mr Andrews met with Valley Care general managers about the “likely” redundancy and was afforded the opportunity to ask questions and provide his feedback about the prospect. On 27 May 2024 he was advised in writing that his employment was terminated as a result of the redundancy of his position.  

1. The matter was programmed for a hearing to determine whether to allow a further period for Mr Andrews’ unfair dismissal application to be made, and then, if necessary, the question as to whether the dismissal was a case of genuine redundancy.  

1. The matter was heard on 27 November 2024 by way of determinative conference. Mr Andrews represented himself at the determinative conference with the assistance of Auslan interpreters. Mr Brad Giraud, Proprietor and General Manager – Strategy appeared for Valley Care. Evidence was given by Mr Andrews, and for Valley Care, by Mr Giraud, Ms Erin McLaine, General Manager – Operations and Mr David Timmins, Board Member. 

1. Prior to the determinative conference both parties filed outlines of argument and summary statements of evidence, together with documentary material. Among the documentary material filed by Mr Andrews were documents relevant to his recent medical history.  

Mr Andrews’ recent medical history

1. Mr Andrews experienced medical challenges between the beginning of June 2024 and the end of September 2024. He provided the Commission with twelve medical reports relating to ten visits to hospital during this period. Most of his visits related to acute asthma episodes, in relation to which attendance at hospital was either necessary, or the sensible precautionary measure. The first of these visits occurred on 5 June 2024, when he was taken to hospital in an ambulance after having trouble breathing and discharged the next day. Five of his visits to hospital required an overnight stay. On 11 August 2024, he experienced a cardiac arrest and was admitted to hospital for the period 12 August 2024 – 15 August 2024. During intubation he experienced broken ribs and a collapsed lung. His last visit to hospital was on 29 September 2024. He agreed that by this time his health was improving but said he was still recovering from the cardiac arrest.

The effective date of dismissal

1. There was no contest that Mr Andrews’ effective date of dismissal was 27 May 2024. 

Extension of time   

1. Section 394 of the FW Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but only if the Commission is satisfied that there are “exceptional circumstances”. 

1. Mr Andrews’s unfair dismissal application should have been filed within 21 days of 27 May 2024, or before midnight, 17 June 2024. It was filed on 29 October 2024 and is 134 days late. 

1. To determine whether “exceptional circumstances” exist warranting a further period for the application to be made (an “extension of time”) the Act requires that I must give several factors consideration, evaluating and giving each of them due weight[1]. The factors are: 

   1. the reason for the delay; and   
   2. whether Mr Andrews first became aware of the dismissal after it had taken effect; and   
   3. any action taken by Mr Andrews to dispute the dismissal; and   
   4. prejudice to the employer (including prejudice caused by the delay); and   
   5. the merits of the application; and   
   6. fairness as between Mr Andrews and other persons in a similar position.    

2. The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a “high hurdle” for an application for an extension[2]. 

Reason for the delay   

1. “The delay” is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was filed. In this matter, the delay is the 134-day period between the end of 17 June 2024 and 29 October 2024.   

1. This is the period of focus, although circumstances arising prior to that delay may often warrant consideration in assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. As a Full Bench of this Commission said: 

   For example, if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed out of time ...[3]

1. Mr Andrews does not need to provide a reason for the entire period of the delay. However, 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[4].  

1. In his written submissions, Mr Andrews said the reason for the delay was “health complications with multiple Hospital ER admittances from 6 May 2024 – 30 September 2024”. He also said he was “recovering from cardiac arrest occurred at home on 11 – 12 August 2024” and “worth noting that atelectasis in my right lung (Collapse or closure of a lung resulting in reduced or absent gas exchange) and 5 fractured ribs shown in CT scans 24/09/2024 and 8/10/2024”. In his Form F2 Application Mr Andrews said the reason for the delay was  

   Health complications arose following my termination of employment. I have been unable to exercise my rights due to frequent visits to the emergency room for respiratory distress. In August, I suffered a cardiac arrest caused by pneumonia and asthma. My recovery has been slow because of the injuries sustained during CPR and intubation which resulted in five fractured ribs. I am still in the process of healing, so I have decided to apply when I feel ready to advocate for myself. 

1. In his oral evidence, Mr Andrews said he believed it would be better to file his application after he was healthy, and wanted to delay it until his health had improved.

1. 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].

1. The asthmatic symptoms Mr Andrews was experiencing between 5 June 2024 and late mid-August 2024 were not to be taken lightly. It was appropriate for Mr Andrews to make the visits to hospital he did during this period of time when he experienced difficulty breathing – which he did on two occasions in June 2024, and twice in July 2024. Similarly, the symptoms Mr Andrews suffered from during September 2024 following his cardiac arrest also required three visits to hospital that were necessary.

1. On 11 and 12 August 2024 Mr Andrews experienced a serious health episode and undoubtedly, required recovery time during at least the rest of August 2024, and likely thereafter, and says he is still in the process of healing. I consider that this health episode – a cardiac arrest - and subsequent recovery period provides a reasonable explanation as to why Mr Andrews was not able to take steps to file his unfair dismissal application during the period between 11 August 2024 and at least the rest of August 2024. 

1. However, I am not convinced that the medical challenges experienced by Mr Andrews before his cardiac arrest, between 27 May 2024 and early August 2024 can be said to have been such that they prevented his ability to take the steps necessary to file his application if not before 17 June 2024, then sometime during June or July 2024. Nor am I satisfied, based on the evidence before me, that Mr Andrews’ health difficulties in September or October 2024 were such that they explain why he did not file his application sometime during this period, before the eventual filing date of 29 October 2024. This is not to underestimate the seriousness of the medical challenges Mr Andrews was facing. Asthma-related fatalities in Australia number in the hundreds each year. It is a serious condition, and no doubt impacted significantly on Mr Andrews’ life during this period. But, based on the evidence before me, I cannot be convinced that it rendered him incapacitated during these periods, such that he could not take the step he eventually took, to file his application in the Commission. 

1. In reaching this conclusion, I have taken into account the relative unfamiliarity of the process to file an unfair dismissal application compared with other activities that might be more familiar to Mr Andrews, such as landscape gardening. I am not convinced that this is an adequate explanation, particularly when eventually, Mr Andrews did succeed in filing his application. It is well established that ignorance of the Commission’s processes is not an exceptional circumstance[6].  

1. I find Mr Andrews does not have a satisfactory reason for large portions of the delay of 134 days between the last day for him to file his application and the date he eventually did. This factor weighs against a finding of exceptional circumstances and the granting of an extension of time.

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

1. Mr Andrews accepted that he was advised of his dismissal on 27 May 2024. I consider this to be a neutral factor.  

What action was taken by Mr Andrews to dispute the dismissal?   

1. In deciding whether to grant an extension of time in this matter I am required by the statute to take into account what if any action was taken to dispute the termination of employment.  

1. Mr Andrews said he questioned the proposition that his position would be made redundant when he met with Valley Care general managers on 24 May 2024. In his statement of evidence, he said he told the managers that choosing him for redundancy was “illogical”. In his Form F2 application, he said “I reluctantly accepted Bradley’s redundancy proposal after the work meeting”.

1. During the determinative conference, I asked Mr Andrews whether he did anything to dispute the dismissal of his employment with Valley Care after it was communicated to him, such as write an email or letter in protest, or seek information about his rights. He said he did not, until “close to the time” he filed his application, at which point he spoke to “Fair Work”.

1. I consider Mr Andrews did not take action to dispute his dismissal, until close to the end of the period of the delay in his eventual application. Given the length of the period between the effective date of dismissal and the filing of Mr Andrews’s application, I consider the absence of any action at all to dispute the dismissal during this time weighs against 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)?  

1. Valley Care conceded in its written submissions that the lateness of the application has not caused the business any disadvantage or unfairness. I consider this to be a neutral factor.

The merits of the application

1. Valley Care argues that dismissal was a case of genuine redundancy. It says that it experienced a downturn in trade in March 2024, and began consultations with staff in May 2024 about the possibility of positions being made redundant. It consulted directly with Mr Andrews on 23 May 2024 about the proposition that his position would be made redundant, and sought his response, before confirming its decision to make the role redundant, causing the termination of Mr Andrews’ employment on 27 May 2024. 

1. Mr Andrews attempted to argue that his job duties still exist and are being performed by other employees, and that in any event, the selection of him, or his role, for redundancy instead of others was illogical and unfair.

1. Below, I explain why I am not prepared to grant an extension of time to Mr Andrews in respect to this application. Accordingly, it is not necessary for me to attempt to resolve the contest between Valley Care and Mr Andrews about whether the redundancy giving rise to the dismissal was genuine or not, or otherwise determine the merits of the application. I therefore consider this to be a neutral factor. 

Fairness as between Mr Kemp and other persons in a similar position   

1. Valley Care conceded in its written submissions that the lateness of the application has not caused any unfairness between Mr Andrews and any other employee or former employee in a similar position. I consider this to be a neutral factor.  

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?   

1. I have not found that any of the relevant factors I am required to consider weigh in favour of an extension of time being granted to Mr Andrews. I have found Mr Andrews does not have a satisfactory explanation for the delay and took no action to dispute the dismissal (until very close to the end of the delay) and that these factors weigh against the granting of an extension of time. The other factors I am required to consider weigh neutrally in relation to my consideration.

1. This application was made outside the prescribed time limit, and, having evaluated each the matters identified in s 394(3) of the FW Act, I am not satisfied that there are exceptional circumstances justifying the allowance of a further period of time for it to be made.

Conclusion   

1. I decline to grant an extension of time for the filing of the application.   

1. Valley Care also objects to the application on the basis that it says Mr Andrews’ dismissal was a case of genuine redundancy. Having determined not to allow a further period of time for the application to be made, it is not necessary for me to determine the question as to whether the dismissal was a case of genuine redundancy.

1. The application is dismissed.   

COMMISSIONER

Appearances:

Mr Andrews representing himself
Mr Giraud for Valley Care

Hearing details:

2024
Melbourne
27 November 2024

[1]     Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (‘Stogiannidis’).

[2]     Abu Murad v Command51 Services Pty Limited[2024] FWCFB 307 [26].

[3]     Laetisha Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [31].

[4]     Stogiannidis [45].

[5]     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]     Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 [13], [14].

Printed by authority of the Commonwealth Government Printer

<PR782978>