Mr Edward Doherty v Berwick and Harkaway Cemeteries Trust
[2021] FWC 3637
•23 JUNE 2021
| [2021] FWC 3637 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Edward Doherty
v
Berwick and Harkaway Cemeteries Trust
(U2021/4573)
COMMISSIONER CIRKOVIC | MELBOURNE, 23 JUNE 2021 |
Application for unfair dismissal remedy – application made 104 days out of time – extension of time required – no exceptional circumstances – application dismissed.
[1] This is a version of a Decision delivered ex tempore and recorded in transcript on 21 June 2021.
[2] This decision concerns an application by Edward Ross Doherty (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).
[3] The Applicant submits that his employment with Berwick and Harkaway Cemeteries Trust (Respondent) was terminated with effect from 21 January 2021. The Respondent submits that the contract was terminated with effect from 21 January 2021. The unfair dismissal application was lodged on 26 May 2021.
[4] Section 394(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). The period of 21 days ended at midnight on 12 February 2021. The application was therefore filed 104 days outside of the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.
[5] The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
[6] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute permits me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
[7] The matters that I need to take into account in considering whether I am satisfied there are exceptional circumstances are:
(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.
[8] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to also consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
[9] 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 or unprecedented, nor do they need to be very rare. I must be satisfied, taking into account section 394(3), that there are exceptional circumstances. 1
[10] I now consider these matters in the context of the Application.
Reason for the delay
[11] The delay required to be considered in s.394(3)(a) is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.2
[12] 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 the circumstances must be considered.3
[13] The Applicant cites several reasons for the delay in his lodging his application.
[14] In his original application form lodged with the Commission 26 May 2021, the Applicant cites the following reasons:
“I was talking to a solicitor. I also did not know what to do. Also covid.”
[15] In an email sent to Chambers on 7 June 2021, the Applicant cites the following three reasons for the delay:
“Why I have taken so long to put in a Claim.
(1) I was never ever aware that there was a Fair work place Commission.
A friend informed me of this many weeks after I was put off.
(2) This friend contacted a lawyer for me and she decided the best thing to do would be to go through Fair work.
(3) I am someone that takes a lot to complain about anything, but I have been in Berwick for years and am liked and known by a lot of locals that have approached me and asked why I no longer work at the Cemetery. They also told me to do something about it.”
[16] In further submissions of 9 and 10 June 2021, the Applicant cites the following reasons:
“• There was a delay of three months in finding out about my dismissal.
• I am of an older generation and was unaware of my rights.
• My employer never gave me a copy of my contract once it had been signed by both parties, without access to my contract, I was unaware that my termination was breeching the contract.
• I was unaware of the existence of the Fair Work Commission until I had a discussion with a friend who informed me of it. Once I was informed of the possibility of this process, I lodged a claim within five working days.”
• 7 April 2021 my wife spoke with a friend (Kerry). That was the first time the commission was known to either of us. While ignorance is not a sufficient excuse, making complaints to an agency you don’t know about isn’t possible.
• 14 April 2021 Kerry spoke with Solicitor who contacted the Commission and attained our case number.
• 21 April 2021 Edward signed the initial complaint.
• 23 April Kerry posted letter of initial complaint.
• Letter apparently was not received until some point in May.”
At hearing, the Applicant gave further evidence that:
• Following a conversation with his wife 7 April 2021, the Applicant became aware of the Fair Work Commission and the 21 day time limit for the filing of an application.
• On 14 April, a friend of his wife obtained a case number and that on 21st April 2021 the Applicant signed the unfair dismissal application which was lodged by a friend by post on 23rd April 2021.
• He does not believe that the Application was lodged by registered mail.
• He cannot explain why the Commission records show that the application was received on 26 May 2021.
Conclusion on reason for delay
[17] I have carefully reviewed the correspondence and submissions of the Applicant and regrettably, I do not regard the reasons advanced, either collectively or separately, as constituting an acceptable reason for the delay. Whilst I am sympathetic with the Applicant’s position, it is apparent on the evidence that he regarded himself as having been terminated with effect from 21 January 2021 and took no steps to file his application for some weeks. When he became aware of the 21 day time limit on 7 April 2021, he did not file his application until 23 April, and even then did so by way of ordinary post.
[18] To extent that the Applicant relies on ignorance of the law, I note that it is uncontroversial that ignorance of the law does not constitute exceptional circumstances.
[19] I am not satisfied that the Applicant has provided an acceptable reason for the delay. This is a conclusion that weighs against granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[20] Turning then to the question as to whether the Applicant first became aware of their dismissal after it took effect, the applicant gave evidence that his employment was terminated at a meeting attended by him and Ms Smart and Mr Marsham on 21 January 2021 and became aware on that day. In the circumstances, that is a neutral consideration.
Action taken to dispute the dismissal
[21] The Applicant claims to have questioned the reasons given for this termination including not completing tasks in a time-efficient manner and claims to have labelled these reasons as inaccurate at the time of dismissal.
[22] In the circumstances, I consider this to be a neutral consideration.
Prejudice to the employer
[23] The Respondent points to the lengthy delay in filing the application not withstanding they made no submissions directly on this point. 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 little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[24] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, 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. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[25] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
[26] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.4
[27] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, which would warrant a consideration of the exercise of my discretion to allow a further period.
[28] As I have indicated, there is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.394(3) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Mr E Doherty (the Applicant)
Ms B Smart (for the Respondent)
Hearing details:
21 June 2021 (via Microsoft Teams)
Printed by authority of the Commonwealth Government Printer
<PR731009>
1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
2 Rodney Flagg v Solar Depot Pty Ltd,[2021] FWC 2723, [8].
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
4 Lidia Li v Slim Form Australia Pty Ltd, [2021] FWC 619 (Gostencnik, DP), [20].
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