Mr James Scarcella v Recruitment Solutions (A Division of Chandler Macleod) Pty Ltd
[2022] FWC 342
| [2022] FWC 342 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr James Scarcella
v
Recruitment Solutions (A Division of Chandler Macleod) Pty Ltd
(C2021/7851)
| DEPUTY PRESIDENT CROSS | SYDNEY, 21 FEBRUARY 2022 |
Application to deal with contraventions involving dismissal
Mr James Scarcella (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant had been dismissed from his employment with Recruitment Solutions (A Division of Chandler Macleod) Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act (the Application). The Respondent has objected to the Application on the ground that the Application is out of time.
Directions were issued for the filing of statements and submissions. Neither the Applicant nor the Respondent availed themselves of the ability to file statements or submissions, though both agreed in the hearing of the matter that the positions stated in the Application and the Form F8A Response respectively outlined the submissions they would wish to make, supplemented with oral submissions made at the hearing.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
The Applicant submitted that he was notified of the dismissal on 19 October 2021, but that it took effect on 20 October 2021, because he was paid for 19 October 2021, and that a day for which he was paid for could not be the date the dismissal took effect.
The Respondent contended that the dismissal took effect on 19 October 2021, when the Applicant was advised that the end of his assignment would take effect from close of business that day in accordance with their client’s instructions.
I find that it was clearly communicated to the Applicant on 19 October 2021, that he was no longer required, and reject the Applicant’s contention that that a day he was paid for could not be the date a dismissal took effect. I find that the dismissal took effect on 19 October 2021.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As the dismissal took effect on 19 October 2021, the final day of the 21 day period was 9 November 2021, and ended at midnight on that day. The Application was made on 17 November 2021. The Application was therefore made eight days late.
As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.
Was the Application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute 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) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
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 9 November 2021. The delay is the period commencing immediately after that time until filing on 17 November 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
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.[4]
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.[5]
Submissions
The Application filed by the Applicant outlined the reasons for the delay in filing the Application. The totality of those reasons were as follows:
“I should state first off that I have lodged a claim for Unfair Dismissal which was sent through on the 11/11/21, which I withdrew as I had not worked at my employer for at least six months.
I was also not aware of General Protection until only recently and believed I had to have worked for the employer for at least 6 months to be eligible in any way. I was advised by the FWC to lodge this application as it would best suit my circumstance.
The reason for the delay in the application in the first instance was due the severe impact that this incident had on my mental and thinking state. I have had a history of clinical anxiety and depression and the way in which my sudden and abrupt termination was handled severely affected me. The way in which this was carried out was so extreme that it caused me to go into a state of shock and I really did not consider having any workplace rights in this matter until a family member advised and encouraged me to apply. During the time after this matter I felt it extremely difficult to pursue this matter as dealing with it in any capacity may cause undue trauma from my previous condition of which has been under control for many years. I would say that my cognitive skills were affected somewhat during this time and I needed time to come to terms with what had happened to me.”
In the Form F8A Response, the Respondent submitted the following regarding the Applicant’s reasons for delay:
1. “The Applicant claims that his dismissal took effect on 20 October 2021.
2. In fact, the Applicant was notified about the end of his assignment with AusNet by Olivia Agar (Office Coordinator – Chandler Macleod) by phone at around 4pm on 19 October 2021. Ms Agar told the Applicant that the end of his assignment would take effect from close of business that day in accordance with the Client’s (AusNet) instructions. See Attached email from Geoff Wigglesworth, Customer Service & Resolutions Manager, AusNet Services to Olivia Agar and Michael Mcghee (Regional Manager – Chandler Macleod).
3. The 21 day deadline for filing either an Unfair Dismissal application or a General Protections application was therefore 9 November 2021.
4. The Applicant filed an unfair Dismissal Application on 11 November 2021 and a General Protections application on 17 November 2021 after discussing the matter with the Fair Work Commission. Both applications were filed beyond the 21 day deadline.
5. The Applicant failed to lodge his initial Unfair Dismissal application on time. He should not be allowed to claim his mistake in not filing his General Protections claim on time when he did not file his initial Unfair Dismissal application on time either.
6. The Applicant only filed a General Protections application after he was told that he was unable to make un unfair dismissal claim because he had not served the minimum of 6 months to be able to make an unfair dismissal application. His application is an Unfair Dismissal claim “dressed up” to look like a General Protections claim.
7. It is up to the Applicant to seek advice and determine the correct form of application to make and to file the application within time, regardless of whether he has to refile his application. He is not allowed additional time just because his first application was incorrect.
8. It is not an exceptional circumstance for an applicant to file their application incorrectly.
9. The Applicant also says part of the reason for filing his application late was the impact that the end of his employment had on his mental and thinking state. The Fair Work Commission has stated many times when considering whether to accept late applications that distress and anxiety caused by a loss of employment are not exceptional circumstances, even where there is a predisposition.
10. The Applicant claims the way his employment was handled was sudden and extreme. However, even by his own account, the end of his employment was entirely possible in the circumstances. He knew that his employment was at risk when he first raised his opposition to being vaccinated. That was a calculated decision on his part that threatened his employment.”
Findings
While the Applicant claims to have had a history of clinical anxiety and depression, no medical evidence supporting the diagnosis of such condition before or after the dismissal of the Applicant was provided. In Rose v BMD Constructions Pty Ltd,[6] a Full Bench of Fair Work Australia, in a matter where an applicant claimed she was suffering from shock and trauma as a result of the dismissal but did not attend her doctor during the two weeks following the dismissal, and noted that she was not aware of the time limit in respect to unfair dismissal, observed:
“[10] It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.
[11] Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.”
The Applicant has failed to substantiate any level of illness or incapacity resulting from the dismissal that precluded him from advancing a claim, be it the unfair dismissal or the Application, against the Respondent. I cannot conclude that he was precluded by illness or incapacity from filing either the unfair dismissal claim or the Application within the 21 day limitation period, or thereafter.
As observed above, while mere ignorance of the statutory time limit is not an exceptional circumstance,[7] I also consider ignorance of the availability of a general protections claim is also not an exceptional circumstance.
Having regard to the above, I am not satisfied that the Applicant has provided an acceptable explanation for the period of the delay, and that is a matter that weighs in favour of the Respondent in this matter.
What action was taken by the Applicant to dispute the dismissal?
This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. The Applicant did not take any actions within the 21 day period to dispute his dismissal. While the Applicant did file his unfair dismissal claim, it is notable that the unfair dismissal was also filed outside the 21 day period to dispute his dismissal, albeit by two days.
In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal in the 21 day period after his dismissal, but I find the Applicant did take action to dispute the dismissal six days prior to the Application. I consider this factor is a neutral consideration.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent did not suggest any prejudice would be caused to it in the event the Commission extended the time for the Application to be made. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted, however the mere absence of prejudice is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is also a neutral consideration.
What are the merits of the Application?
Having examined the materials, it is evident to me that the merits of the Application turn on contested points of fact. 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).”[8]
It is not possible 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.
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 matter. 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.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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.[9] 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.[10]
It is clear that the factor that has been accorded any weight in this matter is the absence of an acceptable reason for the delay. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[11]
Even had it been apparent, evidence of hardship and misfortune would not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their application.[12] That is certainly not the case in this matter.
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s Application for the Commission to deal with a dismissal dispute is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Scarcella, on his own behalf.
Mr R Harden, on behalf of the Respondent.
Hearing details:
2022.
February 14.
Sydney (via videoconference)
[1] 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.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] [2011] FWA 673.
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[12] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
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