Mr Jason Hillmann v Red Pumps T/A Red Pumps

[2020] FWC 6560

[2020] FWC 6560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jason Hillmann
v
Red Pumps T/A Red Pumps
(U2020/13453)

DEPUTY PRESIDENT CROSS SYDNEY, 4 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 10 October 2020, Mr Jason Hillmann (“the Applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant claimed he was employed by Red Pumps Pty Ltd (“the Respondent”). The Applicant commenced his employment with the Respondent on 17 September 2017. The Applicant claimed that he was notified of his dismissal on 19 June 2020, and that dismissal took effect on that date.

[2] Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by 10 July 2020. The application was therefore lodged outside of the time prescribed and was lodged 92 days after the last day on which such an application could have been made.

[3] On 28 October 2020, Directions were issued to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge his application (“the Application”) would be determined (“the Directions”).

[4] The matter was heard by way of a determinative conference on 26 November 2020. In the hearing of the Application, the Applicant relied upon:

(a) The Form F2 Unfair Dismissal Application;

(b) A report from Mr Justin Court, Psychologist, dated 17 March 2019;

(c) A copy of his termination letter dated 6 July 2020;

(d) A further report from Mr Court dated 16 October 2020;

(e) An outline of submissions dated 3 November 2020; and

(f) An email to my Chambers dated 11 November 2020.

[5] In the hearing of the Application, the Respondent relied upon:

(a) The Form F3 Response to Unfair Dismissal Application;

(b) A copy of the termination letter dated 6 July 2020;

(c) An email from the Applicant to the Respondent seeking a different form of termination letter; and

(d) An Award Flexibility Agreement dated 8 August 2018.

Relevant Facts

[6] The relevant facts of the matter as disclosed by the materials filed are:

(a) The Applicant worked as a Concrete Pump Operator for the Respondent.

(b) On 17 March 2020, the Applicant sent his employer, Mr Greg Windust, an email containing a letter from his Psychologist that explained his mental health situation and issues regarding his marriage breakdown. Mr Windust responded the following day stating “Thanks Mate, will be here for you as much as I can”.

(c) On 19 June 2020, a conversation occurred between the Applicant and Mr Windust. In that conversation Mr Windust advised the Applicant to have three months off to “sort out his issues”.

(d) On 6 July 2020, the Respondent sent the Applicant a termination letter. The relevant part of that letter stated “…we have regrettably terminated his employment with Red Pumps as at 19 June 2020.” The Respondent claimed that the Applicant requested to be provided with that letter. The Respondent did not have any contact from the Applicant for seven to eight weeks after providing the termination letter.

(e) The Applicant contacted the Fair Work Ombudsman a few days outside of the 21 days’ limitation period regarding his rights. He states that he was advised that “I would have needed to be in a coma or something similar to have any chance of the Fair Work Commission accepting a late application.”

(f) A few weeks after consulting the Fair Work Ombudsman, the Applicant also received advice from an organisation he described as Central Coast Legal.

(g) In the period from dismissal to the filing of the Application, the Applicant attended multiple weekly medical and counselling sessions. He said he struggled to get out of bed some days, and described himself as “hitting rock bottom”.

(h) The Applicant has obtained alternate employment.

Consideration

[7] Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:

“(2)  The application must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (3).”

[8] As the Application was lodged outside of the 21 day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:

“(3)  The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and

(b)  whether the person first became aware of the dismissal after it had taken effect; and

(c)  any action taken by the person 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 person and other persons in a similar position.”

[9] It is clear from the structure of s.394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[10] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[11] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWC 479 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[12] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)

[13] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[14] The explanation proffered by the Applicant is essentially one of incapacitation due to illness. Indeed, Mr Court’s report of 16 October 2020, stated that the Applicant was completely incapacitated, being … “unable to carry out everyday tasks and function normally”. However, that report did not delineate the period of complete incapacitation.

[15] It is clear from the actions of the Applicant in the period from dismissal to the filing of the Application, that the Applicant was not incapacitated for the whole, or even it would appear a substantial, proportion of that period. He was able to consult both the Fair Work Ombudsman and Central Coast Legal, as well as attending multiple weekly medical and counselling sessions.

[16] I find that there was no acceptable explanation for the whole of the Applicant’s delay in filing the Application. While it is clear that at some time in that period the Applicant was completely incapacitated, at other times he was not so incapacitated, and was able to seek advice and attend appointments. Even after receiving advice shortly after the expiry of the 21 day limitation period, the Applicant did not promptly pursue his claim, taking a further two months to file his application. Accordingly, this factor weighs in the Respondent’s favour.

(b)  Whether the person first became aware of the dismissal after it had taken effect

[17] This is not a relevant factor in this matter.

(c) Action taken by the person to dispute the dismissal

[18] The Applicant did not challenge his dismissal in any way. I accept the Respondent was not contacted for seven to eight weeks after the date of the termination letter. Accordingly, this factor weighs in the Respondent’s favour.

(d) Prejudice to the employer

[19] The Respondent made no submission regarding this consideration. Accordingly, I consider that this is a neutral factor.

(e) Merits of application

[20] This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.

[21] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[22] The Respondent submits that it did not dismiss the Applicant, but rather asked him to take three months to “get better”. Mr Windust stated that he only issued the termination letter at the request of the Applicant. However, the terms of the termination letter are clear, and I find the Applicant was dismissed.

[23] In the circumstances, and in the absence of clear evidence allowing findings on contested matters, I cannot make any findings regarding merits. Accordingly, I cannot apportion any weight to this consideration.

(f) Fairness between the person and other persons in a similar position

[24] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[25] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any weight were acceptable reason for delay and absence of action to dispute the dismissal. Both factors weighed in the Respondent’s favour.

[26] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Jason Hillmann, for the Applicant

Mr Greg Windust, for the Respondent

Hearing details:

2020
Sydney
26 November

Printed by authority of the Commonwealth Government Printer

<PR725194>