Mr Jason Gatt v Just Group Limited
[2023] FWC 688
•27 MARCH 2023
| [2023] FWC 688 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jason Gatt
v
Just Group Limited
(U2023/1595)
| COMMISSIONER JOHNS | MELBOURNE, 27 MARCH 2023 |
Application for an unfair dismissal remedy – circumstances not exceptional – application dismissed
On 27 February 2023 Jason Gatt (Applicant), made an application to the Fair Work Commission (Commission) under section 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 Just Group Pty Ltd (Respondent).
The information provided by both the Applicant and the Respondent indicates that the application may have been made out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW 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.
Submissions
In addition to his Form F2 Application, which at item 1.6 explained why his application was not filed within 21 days of the dismissal, the Applicant filed a written statement and two letters from his General Practitioner.
The Respondent filed a Form F3 and objected to the matter proceeding because the application was out of time.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 11 January 2023.
When was the application made?
It is also not in dispute, and I so find, that the application was made on 27 February 2023.
Was the Application made within 21 days after the dismissal took effect?
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”.[1]
As I found above, the dismissal took effect on 11 January 2023. The final day of the 21 day period was therefore 1 February 2023 and ended at midnight on that day. As I found above, the application was made on 27 February 2023. Therefore, the application was made 26 days late.
Because the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows. That is to say, I need to consider whether to grant the Applicant an extension of time.
Was the application made within such further period as the Commission allows?
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 the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 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 1 February 2023. The delay is the period commencing immediately after that time until 27 February 2023, 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 Applicant submitted that the delay was due to medical conditions and personal circumstances that required him to have counselling and medical attention.
In relation to the reason for the delay, the Respondent submitted that having regard to the Applicant’s submission that,
“I was not in the right state of mind at time due to my condition (see doctors certificate) and people urged me to take it further”,
the Applicant must have sought advice and, consequently, 21 days was more than enough time to make an application.
Evidence
The Applicant submitted two letters from his General Practitioner at a health service (Clinic), relating to his medical condition.
The General Practitioner confirmed that the Applicant has been a regular patient of the Clinic since 2015. In the letter dated 2 March 2023, the General Practitioner noted that the Applicant has been going through a very difficult time for the past four (4) to five (5) months due to a range of personal circumstances and health conditions. The Applicant relied upon these documents as a basis for him to be granted an extension of time. Out of respect of the Applicant’s privacy and health records I do not record the specifics here. However, I accept that the evidence supports a conclusion that the Applicant would have had many other matters on his mind other than filing an unfair dismissal application. I am sympathetic to the situation he found himself in. However, it is not a complete answer to the delay.
At item 1.6 of his unfair dismissal application the Applicant explained that he contacted his union and he was advised that because the 21 days period had lapsed, the union could not help him. The Applicant confirmed before me that, despite the union’s advice, he still delayed submitting his application for a further five days. When questioned by me as to why he did not submit his application immediately after receiving advice from the union, the Applicant advised that he tried to submit it as soon as possible. I am not persuaded that there is a satisfactory explanation for this further delay. The Applicant could have completed an online application without further delay after he received advice from his union.
Findings
Having regard to the above, I am not satisfied that the reasons for the delay evidence exceptional circumstances. They do not cause me to be inclined to grant an extension of time.
Did the Applicant first become 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 11 January 2023, the day before it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. This finding weighs against granting an extension of time.
What action was taken by the Applicant to dispute the dismissal?
Having regard to the above, I find that the Applicant did not take any substantive action to dispute the dismissal prior to making the application on 27 February 2023. This finding weighs against granting an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent did not assert any particular or special prejudice. I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. This is a neutral consideration.
What are 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.
Having examined these materials, it is evident to me 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 section 366(2)(d)”,[6] and the same applies to section 394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application. This is a neutral consideration.
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:
(a) the reasons for the delay (as stated above);
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the actions taken by the Applicant to dispute the dismissal;
(d) the absence of any prejudice to the employer;
(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 the Applicant and other persons in a similar position.
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.[7] 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.[8]
Having regard to all of the matters at section 394(3) of the FW Act and the findings I have made above, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
Mr J Gatt for himself
Ms R Lee and Ms L Bilston for the Respondent
Hearing details:
2023.
Melbourne (via Microsoft Teams video-link):
14 March.
[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] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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