Mr Guy Vincent v Grove (Aust) Pty Ltd
[2022] FWC 1648
•28 JUNE 2022
| [2022] FWC 1648 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Guy Vincent
v
Grove (Aust) Pty Ltd
(U2022/5628)
| COMMISSIONER CIRKOVIC | MELBOURNE, 28 JUNE 2022 |
Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed
Mr Guy Vincent, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Grove (Aust) Pty Ltd, whom I will refer to as the Respondent.
Before granting a remedy, the Commission must be satisfied that the application was not made out of time.
Having heard the parties, I now proceed to give these reasons for my decision ex tempore.
This published decision reflects the decision I gave ex tempore on 27 June 2022 with corrections for grammatical, syntactical and any other insignificant errors.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
The parties agree, and I so find, that the dismissal took effect on 19 April 2022 and the application was received by the Commission on 23 May 2022, some 13 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.
The Commission may exercise its discretion to 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 the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:
(a) the reason for the delay;
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 10 May 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 23 May 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.
As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, 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.
As the Full Bench went on to say at paragraph 40, 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.
The Applicant submitted that the delay was for the following reasons:
a) Ignorance as to the time limit as he had never been through this process before.
b) Waiting for payslips from the Respondent which he requested on 10 May 2022 (within the time for filing his application) and receiving the payslips on the 11 May 2022, and not realizing he could file his application without the entirety of his payslips.
c) Personal issues relating to his family and in particular the needs of his 15-year-old son, including:
i) Driving to Queensland to pick up his son and return him to Melbourne, which consumed his time from 23 April to 27 April 2022.
ii) Returning home to Melbourne on 28 April 2022 and resting up for the weekend.
iii) Between 28 April and 10 May 2022 when his application was due, attending to various tasks involving his son’s wellbeing, including, contacting regional colleges, secondary colleges, attending interviews at secondary colleges, contacting former colleagues to enquire as to an apprenticeship for his son and attending a dental appointment for his son.
iv) Establishing routines into his son's life, such as, eating healthy food, establishing boundaries and ensuring good sleeping patterns.
In relation to the reason for the delay, the Respondent submitted in essence that the above events do not constitute exceptional circumstances that warrant granting an extension of time.
Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
The Applicant submits that he took no action to dispute the dismissal as he was shell shocked and believed the Respondent when they stated that the termination was during the 6-month probation period and that he did not like confronting situations.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
The Applicant submits there would be no unfairness on the employer caused by the delay. The Respondent says that Staff have had to drop existing workloads at a busy time leading up to end of financial year to take time to draft and produce documentation to back up the claim. In the circumstances, I find there would be no prejudice to the Respondent if an extension of time were to be granted.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
The Respondent submits that the Applicant left his role of his own free will and that as his probation period had ended the Respondent decided to not continue his employment. The Applicant states that he was terminated following a worksafe incident on site and disputes that the termination was within the 6-month qualifying period. 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. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, 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 an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matters. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings
As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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. 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.
The Applicant indicates that the reason for the delay in lodging his application is threefold, first, that he was ignorant as to the lodging requirements. In Nulty, the Full Bench noted that ignorance of the statutory time limit is not itself an exceptional circumstance. The Applicant gave evidence that he became aware of the 21-day time limit for the filing of his application on 10 May 2022, when he had some time to himself and decided he had been treated unjustly and should look into the matter at which time he stated that he went onto the Commission website.
Secondly that he did not have all of his payslips and wanted to ensure that he followed the correct procedures before filing and put his energies into obtaining his payslips from the Respondent. He made a request for his payslips on 10 May 2022 and received those on 11 May 2022. He filed his application by ordinary mail on 18 May 2022 which was received by the Commission on 23 May 2022.
When asked to explain why he did not file his application online or via telephone on 10 May 2022, the Applicant responded that he did not look that far on the website and was unaware of all of the Commissions lodgment methods.
Thirdly his personal circumstances involving his 15-year-old son prevented him from lodging his application on time, as his son’s welfare occupied his energy, attention and time for the period following when he first became aware of his son’s behavior on 13 January 2022 to the period up to and following 10 May 2022, the last day for lodging his application.
The Applicant concedes that he accessed the Fair Work Commission website on 10 May 2022 and was aware of the 21-day filing for an unfair dismissal application on and from that date. I note that had he lodged the application on that date, it would have been within time. I also note that the procedure for lodging an unfair dismissal application is a process which involves completion of a very simple form in any one of a variety of very simple ways. The rules of the Commission allow an unfair dismissal application to be lodged in a number of different ways, including by email, and also by telephone.
I note that the Applicant provided evidence in his written material as to the many and varied obligations regarding his son.
Whilst I am sympathetic to the circumstances of the Applicant and in particular the concerns he experienced with his 15-year-old son and note that some 6 to 7 days were taken up by travelling to Queensland and bringing his son to Melbourne, I am not persuaded that in this case the evidence before me supports a finding that there is a credible reason for the delay in this matter. Whilst I accept that the Applicant had significant responsibilities to attend to his son’s wellbeing, I observe that the Applicant by his own evidence was able to engage in endeavors to assist his son’s wellbeing including, attending to dental and educational appointments. I also observe that on the evidence before me, the Applicant was not engaged in appointments involving his son for the entirety of the relevant period, such as to establish a credible reason for the whole of the delay. I have made findings above as to the Applicants submissions as to unfamiliarity with the legal process and have taken into account his evidence as to the need to obtain all his payslips prior to the filing of his unfair dismissal application. I do not believe the circumstances in this case individually or taken together support a finding of a reasonable or acceptable reason for the delay.
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.[1]
Conclusion
Having considered all of the factors set out in s.394(3) I am not satisfied that the requisite exceptional circumstances exist. 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 Guy Vincent (Applicant)
Ms Laura Worthington (for the Respondent)
Hearing details:
10:00am Monday 27 June 2022 via Microsoft Teams
[1] Lidia Li v Slim Form Australia Pty Ltd[2021] FWC 619, [20].
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