Mr Devin Mckay Campbell v Aspire Allied Health Pty Ltd
[2023] FWC 1396
•14 JUNE 2023
| [2023] FWC 1396 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Devin Mckay Campbell
v
Aspire Allied Health Pty Ltd
(U2023/3351)
| COMMISSIONER DURHAM | BRISBANE, 14 JUNE 2023 |
Application for an unfair dismissal remedy – whether to extend time – application dismissed.
On 19 April 2023, Mr Devin Mckay Campbell (the Applicant) made an application to the Commission for an unfair dismissal remedy. He contends that he was dismissed by Aspire Allied Health Pty Ltd (the Respondent) nearly 12 months earlier, on 8 April 2022.
Section 394(2) of the Fair Work Act 2009 (Cth) (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 section 394(3).
In order for the application to proceed, Mr Campbell requires the Commission to grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a Determinative Conference on 7 June 2023. Both the Applicant and the Respondent gave oral evidence and sought that the material they had already filed be received into evidence.
The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
The Respondent called one additional witness, Mr Rob Legat, Compliance Consultant for the Respondent.
All the material relied upon by both the Applicant and the Respondent has been taken into consideration.
Extension of Time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
·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.
Relevant Factors
Reason for the Delay
The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an “acceptable” or “reasonable explanation” of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether or not there are exceptional circumstances, whereas 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.[2]
The Applicant contends that he was forced to resign from his position as a Company Director of the Respondent on 8 April 2022. The Applicant is of the view that his forced resignation was as result of his vaccination status. This point is contested by the Respondent.
The Respondent maintains that following a series of discussions, the Applicant agreed to resign as a Director of the Respondent. It was further agreed that he would take a period of leave before immediately transitioning into a new position (Property Service Director) as an employee of the Respondent.
The Applicant argues that the delay in lodging his application came about due to a combination of factors, including:
· the breakdown of his personal and professional relationship with his then partner and co-founder of the Respondent, Ms Wa-Eeda Ely;
· the detainment, by the Respondent of much of his personal and professional property;
· his limited access to communication devices and records that he would require to support his case;
· his limited financial resources;
· the impact of domestic, physical, and emotional violence occurring between the Applicant and Ms Ely; and
· that the Respondent had failed to make him aware of his right to lodge such an application.
I do not accept that the Applicant did not have the capacity to lodge his application in time due to the reasons provided.
With respect to the Applicant’s claim that he did not have access to the communication devices and records that he needed to lodge his application, I note that conflicting evidence on this point was provided by the Applicant during the Determinative Conference.
In answer to a question put directly to him about the period of leave he took before commencing in the new role, the Applicant indicated that he in fact continued to work for the Respondent during this time, stating:
“So it might have been on paper that I took leave, but physically, no, I didn't take leave because I was continually working within the business.”
The Applicant further confirmed that during this time he continued to have access to his and the Respondent’s property including his desktop computer, mobile phone and vehicle. It is therefore clear based on the Applicant’s oral evidence that he did in fact have access to property such as a computer and mobile phone which he could have utilised in order to lodge his application in time after the alleged dismissal on 8 April 2022.
The Applicant’s evidence that he continued to work for the Respondent, albeit in a new role, from the date of the alleged dismissal, also brings into question the weight upon which the issues of the domestic, physical, and emotional violence should be placed. Whilst there is no doubt that the impact of the breakdown of the personal and professional relationship between the Applicant and the founding Director was significant, the evidence confirms that much of this played out well after the 21-day period had passed.
The Applicant indicated during the Determinative Conference that he was late to file his application due to not being advised of his legal rights by the Respondent, stating:
“So that's the reason why for my late submittal over the 21 days originally I didn't receive any advice even from our legal department, which was Rob Legat.”
I do not accept the Applicant’s explanation that the Respondent had failed to make him aware of his right to lodge an application. Furthermore, the Respondent is not obligated to advise the Applicant as such. The Applicant being unaware of his potential claim is not an acceptable reason for delay.
I consider that there was no acceptable reason for the delay. This consideration weighs against an extension of time in this case.
Whether the person first became aware of the dismissal after it had taken effect
There does not appear to be any dispute between the parties that a meeting was held 25 March 2022 to discuss the Applicant's Directorship of the Company, nor that the outcome of this meeting was that the Applicant:
a.would resign his Directorship of the Company;
b.would accept a new role as an employee of the Company (Property Service Director); and
c.after accepting the new role, he would commence three-weeks of paid annual leave.
The Respondent’s submissions note that following on from the meeting on 25 March 2022, the Applicant had an opportunity to seek legal advice before tendering his resignation on 8 April 2022. As such, the consideration in section 394(3)(b) weighs against an extension of time in this case.
Action to Dispute the Dismissal
No evidence has been provided to suggest that the Applicant took any steps to dispute the dismissal. The Applicant’s resignation as a Company Director was a clear outcome of the meeting on 25 March 2022. After this meeting, the Applicant had the opportunity to seek advice and consider his options before signing the letter of resignation on 8 April 2022.
That the Applicant accepted the new role with the Respondent and commenced performing this role immediately after the alleged dismissal also supports the conclusion that the alleged dismissal was not disputed at the time. These facts weigh against an extension of time being granted.
Prejudice to the Employer
There is no evidence of any prejudice to the Respondent, however the long delay between the alleged dismissal and the filing of the application may give rise to a general presumption of prejudice. I have treated this matter as a neutral consideration.
Merits of the Application
The Respondent contends that the dismissal was not unfair because the Applicant agreed to resign from his position as a Company Director and agreed to become an employee of the Respondent pursuant to the employment contract the Applicant signed on 8 April 2022.
To that end, the Respondent has raised the following additional jurisdictional objections:
·That the Applicant was a Company Director and therefore not an employee; and
·That there was no dismissal, as the Applicant resigned his position.
The additional jurisdictional objections above would be key issues in this case. I note the merits of the application would depend on factual findings made at the final hearing, however based on the information before me, I consider the Applicant will face significant challenges establishing that he was an employee and that he was dismissed. In the circumstances, I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in similar position
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case.
As there are no exceptional circumstances, no additional time can be allowed for Mr Campbell to make his application. This means that Mr Campbell is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
D. Campbell for himself
E. Ridler for the Respondent
Hearing details:
2023
Brisbane
7 June
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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