Mr Dale Shane Turner v Bass Bio Pty Ltd

[2021] FWC 5903

[2021] FWC 5903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Dale Shane Turner
v
Bass Bio Pty Ltd
(U2021/7123)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 SEPTEMBER 2021

Application for unfair dismissal remedy – application filed 2 days out of time – finding of exceptional circumstances – further period allowed for the application to be made.

[1] On 12 August 2021 Mr Dale Shane Turner made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Turner’s unfair dismissal application is Bass Bio Pty Ltd (Bass Bio).

[2] Mr Turner commenced employment with Bass Bio on 29 November 2006. There is no dispute that on 20 July 2021, Mr Turner was informed in writing that his employed would be terminated with immediate effect. Section394(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). Mr Turner therefore had until midnight on 10 August 2021 to make an unfair dismissal application.

[3] In his Form F2 – Unfair Dismissal Application dated 10 August 2021 (Form F2), Mr Turner recorded that the unfair dismissal application was made within 21 calendar days of his dismissal taking effect. However, the Form F2 was sent to the Commission by Express Post and was not received by the Commission until 9:00am on 12 August 2021. Therefore, Mr Tuner’s unfair dismissal application was made on 12 August 2021. It was made two days late.

[4] The Commission file was therefore allocated to me for the purposes of determining whether an extension of time for the making of Mr Turner’s application should be granted. Mr Turner filed material pursuant to the Directions I made on 13 August 2021. While Bass Bio had an opportunity to file any material in reply in response to the Directions, it did not do so. I conducted a Determinative Conference on 9 September 2021 to consider Mr Turner’s application for an extension of time. Mr Turner and his wife, Ms Debra Turner, gave evidence and made submissions. Mr Geoffrey Whitney (Director) and Ms Annette Whitney (Director) gave evidence and made submissions on behalf of Bass Bio. An application from Bass Bio for permission to be represented by their lawyer was not granted.

[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”. 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. 1 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.2

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must 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.

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Mr Turner’s application.

Reason for the delay – s.394(3)(a)

[8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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. 3

[9] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 10 August 2021. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. 4

[10] Mr Turner says he first became aware of the 21-day period when he accessed a Form F2 approximately one week after he was terminated. He said he incorrectly calculated the 21 days to conclude on Wednesday 11 August 2021, such that when he signed, dated and posted his Form F2 and other relevant documentation by express post on Tuesday 10 August 2021, he believed his application was going to be made within the 21-day time frame. Mr Turner says in posting his application, his expectation was that next business day delivery would be achieved. Bass Bio contends that Mr Turner could have submitted the Form F2 via email.

[11] As to this aspect of the reason for the delay, even though Mr Turner laboured under a misapprehension as far as the 21-day deadline was concerned, it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed. 5

[12] Mr Turner submits however that stress was a major cause of his miscalculation of the time frame. He says that the stress was a consequence of the following factors and events:

•  Receiving, approximately 1 week post termination, a diagnosis of Stage 4 emphysema which he said is irreversible and terminal;

•  Bass Bio’s initial claim that it was not in a position to pay him his leave entitlements, the initial non-payment of his accrued long service leave entitlement and his concern over whether he would receive payment of accrued annual leave and leave loading entitlements; and

•  Being unable to initially find a solicitor in Launceston that had not previously had dealings either for Bass Bio or Mr Whitney and Ms Whitney, so as to avoid a conflict of interest (this was said to have created further delays).

[13] Mr Turner said exhaustion caused by his medical condition also impacted his ability to complete the application earlier. Bass Bio submits there was no medical evidence before the Commission that suggest that the delay could be attributed to Mr Turner’s medical condition.

[14] That Mr Turner experienced stress and shock as a result of his dismissal is not of itself unusual. Mr Turner’s position is, however, that he also experienced stress due to the receipt of his Stage 4 emphysema diagnosis, said to be irreversible and terminal. He contends that this stress was such that he miscalculated the prescribed 21-day period for making an application. I consider this proposition is persuasive. Mr Turner received a diagnosis of devastating proportions. Further, when combined with the evidence Mr Turner gave regarding undergoing a number of medical tests and the information he was receiving relating to necessary and possible treatment, I consider it is entirely plausible that Mr Turner was thereafter preoccupied and so unlikely to revisit his erroneous calculation of the 21-day period. I am therefore satisfied Mr Turner has advanced a credible explanation for the delay. This weighs in favour of a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)

[15] It is not in dispute and I am satisfied that Mr Turner was aware he was dismissed effective 20 July 2021 and therefore had the benefit of the full period of 21 days to lodge his application. This is therefore a neutral consideration.

Action taken to dispute the dismissal – s.394(3)(c)

[16] Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time. 6 However, it is not in dispute and I am satisfied that Mr Turner did not challenge his dismissal directly with Bass Bio and nor did he take any action to dispute his dismissal until he completed the process of filing this application. This is therefore a neutral factor in the consideration of whether there are exceptional circumstances.

Prejudice to the employer – s.394(3)(d)

[17] Neither party submitted there was any prejudice to Bass Bio, including prejudice caused by the delay. I cannot identify any greater prejudice that would accrue to Bass Bio caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it very little weight in the consideration of whether there are exceptional circumstances.

Merits of the application – s.394(3)(e)

[18] I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

[19] The weight to be given to this merits consideration is dependent on the extent to which there is merit in the substantive application. 7 As much as might be concluded at this stage is that Mr Turner was denied the opportunity to respond to the allegations of Bass Bio prior to being dismissed. While Bass Bio required a response to its ‘show cause’ letter, to be delivered either in person or in writing, Mr Turner supplied a medical certificate and says he was unable to do so within the stipulated time frame but the dismissal was effected nonetheless. It is not possible to make any firm or detailed assessment of the merits beyond this. Bass Bio raises examples of alleged misconduct it says constituted a valid reason for the dismissal and cited evidence upon which they would rely. Mr Turner vehemently denies the allegations. It is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

[20] Ultimately, I am satisfied that Mr Turner’s unfair dismissal application is at least of sufficient merit in a procedural fairness sense so as to weigh in favour of a finding of exceptional circumstances.

Fairness as between the person and other persons in a similar position – s.394(3)(f)

[21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party submitted or brought to my attention any other relevant matter concerning this consideration and I am unaware of any other relevant matter. Therefore, I consider this to be a neutral consideration in the present matter.

Conclusion

[22] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so. The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd:

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” 8

[23] I have considered each of the matters specified in the various paragraphs of s.394(3) of the Act. I have found paragraphs (b), (c) and (f) are neutral. However, paragraphs (a), (d) and (e) weigh in favour of the grant of an extension, albeit only to a slight degree in the case of paragraph (d). Having weighed each of the considerations in s.394(3) of the Act and having considered them collectively, I am satisfied the combination of factors, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.

[24] I have been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act and I am also satisfied that it is appropriate to exercise my discretion to extend the time for Mr Turner to make the Application to 12 August 2021. An Order to this effect will be issued with this Decision.

[25] Accordingly, the matter will now be the subject of further directions so that the merits of Mr Turner’s unfair dismissal application can be heard and determined.

DEPUTY PRESIDENT

Appearances:

Mr D Turner on his own behalf assisted by Ms D Turner.

Mr G Whitney and Ms A Whitney for Bass Bio Pty Ltd.

Hearing details:

2021.
Melbourne (via Microsoft Teams):
September 9.

Printed by authority of the Commonwealth Government Printer

<PR733762>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

 5   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

 6   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 7   Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].

 8   [2018] FWCFB 901.