Mr David McGovern v Oper8 Global Pty Ltd

[2024] FWC 1437

[2024] FWC 1437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr David McGovern
v

Oper8 Global Pty Ltd

(U2024/4126)

DEPUTY PRESIDENT WRIGHT SYDNEY, 31 MAY 2024

Unfair dismissal application filed out of time – circumstances exceptional – extension of time for filing allowed

1. On 11 April 2024, Mr David McGovern made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Oper8 Global Pty Ltd (Oper8).

1. Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

1. Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1] To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered.

1. There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

1. After taking into account the views of Mr McGovern and Oper8 and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter in accordance with s.399 of the FW Act.

1. In summary, I have found that Mr McGovern’s employment ended on 18 March 2024. The application should have been made on 8 April 2024 to comply with s.394(2)(a) of the FW Act. The application was therefore made 3 days outside of the 21-day limit.

1. I have found that the circumstances in which the application was made are exceptional, according to the factors in s.394(3) of the FW Act. I consider it fair and equitable that time should be extended, and I therefore grant an extension of time to file the application to 11 April 2024.

Case management conference

1. On 18 April 2024, the Chambers of Vice President Catanzariti wrote to Mr McGovern requesting that he explain why his circumstances for lodging the application out of time were exceptional and provide any evidence to support that explanation.

1. On 23 April 2024, Mr McGovern provided a response in which he referred to a recent bereavement and his experience with a paid agent called ‘Supportah’ as the reasons for the delay.

1. The matter was then allocated to my Chambers and was listed for a case management conference on 1 May 2024.

1. On 1 May 2024, I made directions for the filing and serving of material and set the matter down for hearing/determinative conference by Microsoft Teams at 10:00am on 17 May 2024.

1. Mr McGovern filed evidence and submissions in the Commission in accordance with the directions on 8 May 2024.

1. Oper8 filed evidence and submissions in the Commission in accordance with the directions on 15 May 2024.

Determinative conference

1. Mr McGovern and Oper8 were both self-represented at the determinative conference on 17 May 2024. Ms Faithfull appeared at the conference on behalf of the Respondent.

1. Mr McGovern gave evidence on his own behalf. Oper8 relied on the written material filed.

Was the application made within 21 days after the dismissal took effect?

1. There is no dispute between the parties and I so find that the dismissal took effect on 18 March 2024.

1. As the Full Bench has stated in relation to a general protections application, but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]

1. As the dismissal took effect on 18 March 2024, the final day of the 21-day period was therefore 8 April 2024 and ended at midnight on that day.  

1. It is not in dispute, and I so find, that the application was made on 11 April 2024.

1. The application having not been made within 21 days of the date on which the dismissal took effect, I now need to consider whether it was made within such further period as the Commission allows.

Should the Commission allow a further period for the application to be made?

1. Under section 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 McGovern first became aware of the dismissal after it had taken effect; and

(c)   any action taken by Mr McGovern 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 McGovern and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

1. I set out my consideration of each matter below.

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 8 April 2024. The delay is the period commencing immediately after that time until 11 April 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

1. 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.[5]

1. An applicant 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 the Applicant has not provided any reason for any part of the delay.[6]

Evidence

1. At the hearing, Mr McGovern explained that his parents-in-law lived in the apartment upstairs from Mr McGovern and his wife. Mr McGovern’s father-in-law moved into an aged care facility in 2023, however his mother-in-law continued to live upstairs. When visiting her father, Mr McGovern’s wife noticed that he had an infection in his foot following a fall, which led to him being admitted to hospital on 9 March 2024. On 11 March 2024, Mr McGovern’s father-in-law was transferred to palliative care, where doctors advised that he was likely to die in two to four days. Mr McGovern’s evidence was that the time from 11 March 2024, to when Mr McGovern’s father-in-law died on 25 March 2024 was a very stressful period as Mr McGovern and his wife were attending the hospital almost every day and being told that ‘it’s going to be today’. Mr McGovern described this time as ‘an emotional groundhog day’ and a ‘horrid two weeks’. It was a very emotional time for Mr McGovern’s wife and his mother-in-law. On the occasions that Mr McGovern was not visiting the hospital, he was providing practical support for his family by shopping for groceries, taking food to the hospital and driving his mother-in-law around.

1. Following his father-in-law’s death, Mr McGovern continued to provide support to his family in relation to organising the funeral and helping his mother contact Medicare, Centrelink and the Department of Veterans Affairs in relation to her late husband. Mr McGovern explained that his priority during that time was to support his family but leading up the funeral, his attention turned to his work situation and his dismissal. Mr McGovern contacted ‘Supportah’ a paid agent recommended by a former colleague on 2 April 2024, which was the first working day after the Easter long weekend. An initial case assessment with Supportah was arranged on 4 April 2024. The funeral for Mr McGovern’s father-in-law took place on 3 April 2024.

1. The initial case assessment with Supportah occurred on 4 April 2024 and Mr McGovern was advised the principal would contact him the following morning on 5 April 2024 to progress the case. Mr McGovern did not receive a phone call from Supportah in the morning of 5 April 2024 but did so at around 5:00pm-5:30pm that afternoon. He was advised during that call that he had a very strong case for unfair dismissal, that the agent would send through a contract in relation to Supportah’s representation of Mr McGovern and that he would receive a phone call on Saturday 6 April 2024. Mr McGovern received the contract but the phone call did not occur. Mr McGovern then made frantic attempts to contact Supportah on Monday 8 April 2024, knowing that it was the last day to lodge his application within the 21 day time limit. He spoke to the agent’s assistant and said that he was ready to go ahead and queried whether Supportah had everything they needed to make an unfair dismissal application on his behalf as Mr McGovern had been submitting material via Supportah’s online portal.

1. Mr McGovern was told that the only additional information required was contact details for Oper8 which he provided. A time was then booked in for Supportah’s principal to call Mr McGovern to discuss the contract in relation to Supportah’s representation of Mr McGovern but Mr McGovern did not receive the phone call. Mr McGovern then tried to contact Supportah by phone but was unable to reach anyone so he tried to book times for a discussion via Supportah’s online portal.

1. On 9 April 2024, Mr McGovern spoke to the agent’s Assistant who advised Mr McGovern that he was outside of the 21 day time limit and he would arrange for the agent to call Mr McGovern. This did not occur so after two days had passed, Mr McGovern decided to lodge his own application and did so on 11 April 2024.

Findings

1. Mr McGovern was a convincing and credible witness. He produced documentary evidence which established the dates that his father-in-law died and the funeral took place. He also produced documentary evidence of the contract with Supportah and two of the appointment dates with Supportah. Oper8 did not challenge any aspects of Mr McGovern’s evidence in relation to the reason for the delay.

1. I accept Mr McGovern’s evidence that the decline in his father’s health and subsequent death were sudden and expected events, that the termination of his employment occurred during this time, and that his responsibilities towards his family prevented Mr McGovern from taking any action to file an unfair dismissal application until after the funeral on 3 April 2024. Consequently, Mr McGovern had a very short period of just five days to make the application. I accept Mr McGovern’s evidence that he was proactive in seeking assistance from Supportah and that Supportah did not contact Mr McGovern in relation to two scheduled appointments. In my view, this reduced the already very limited time that Mr McGovern had to make the application. On one view, Mr McGovern could have made the application himself during the evening of 8 April 2024 once it became apparent that the agent would not be contacting him. However, taking into account the difficult events of the previous month, it may have been challenging for Mr McGovern to act decisively that evening and over the following two days.

1. Taking all of these matters into account, I believe that the reasons for Mr McGovern’s delay in making the application weigh in favour of an extension of time being granted.

Did Mr McGovern first become aware of the dismissal after it had taken effect?

1. It is not in dispute, and I so find, that Mr McGovern first become aware of the dismissal when it took effect on 18 March 2024.

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

1. It is not in dispute, and I so find, that Mr McGovern did not take any actions to dispute the dismissal prior to making the application on 11 April 2024.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. In the material filed by Oper8, Oper8 indicated that that lateness of the application had not caused it any disadvantage or unfairness. I therefore find that prejudice to Oper8 is a neutral consideration in this matter.

What are the merits of the application?

1. The competing contentions of the parties in relation to the merits of the application are set out in the filed material.

1. Mr McGovern submitted that his role was significantly altered without consultation in late January 2024, which he believes was a precursor to the dismissal. Mr McGovern says that this unilateral change to his job responsibilities was unreasonable and not done in good faith as it ostracised him within the global business. Oper8 submitted that Mr McGovern was not meeting the required standards of performance in four areas and that he did not attend a scheduled meeting on 18 March 2024 to discuss his response to the issues that had been raised, and was not contactable.

1. It is evident from this material that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter if an extension of time were granted. 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)’[7] and the same applies to s.394(3)(e).

1. In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.

1. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

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

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

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

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a)   the reasons for the delay, being:

·     decline in Mr McGovern’s father-in-law’s health and subsequent death and his consequent family responsibilities; and

·     a paid agent missing scheduled phone appointments with Mr McGovern which reduced the time available to submit the application

(b)   Mr McGovern becoming aware of the dismissal when it took effect;

(c)   the absence of any action being taken by Mr McGovern to dispute the dismissal prior to making the application;

(d)   no issue of prejudice to the employer being identified;

(e)   the merits of the application being unable to be determined ahead of a hearing of the evidence; and

(f)    no issue of fairness arising as between Mr McGovern and other persons in a similar position.

1. 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.[8] 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.[9]

1. The death of a family member, although a very distressing event, is, by itself, not out of the ordinary course, unusual, special or uncommon. However, in my view, the fact that the termination of Mr McGovern’s employment occurred during a period of sudden and expected decline in his his father-in-law’s health, and that his father-in-law died soon after that, in combination with the paid agent missing appointments, amounts to the exceptional circumstances.

1. The reasons for the delay therefore weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(b)-(f) are neutral considerations.

Conclusion

1. Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.

1. Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

1. Having regard to those exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a “fair go all round” is accorded, the Commission is satisfied that it is appropriate to extend the period for the application to be made to 11 April 2024.
   

2. The matter will be shortly listed for Directions and Conciliation.

DEPUTY PRESIDENT

Appearances:

D McGovern, for the Applicant
S Faithfull, for the Respondent

Hearing details:

2024
17 May
Microsoft Team Video

[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234 at [15]

[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

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

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

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