Mr Jason Joy v Toll Dnata Airport Services Pty Ltd T/A Toll Dnata

[2014] FWC 8512

[2014] FWC 8512

FAIR WORK COMMISSION

DECISION

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

Mr Jason Joy
v
Toll Dnata Airport Services Pty Ltd T/A Toll Dnata
(U2014/4309)

DEPUTY PRESIDENT ASBURY BRISBANE, 27 NOVEMBER 2014

Application for unfair dismissal remedy - Jurisdiction - Extension of time.

Overview

[1] Mr Jason Joy applies for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment by Toll Dnata Airport Services Pty Ltd t/as Toll Dnata (Toll Dnata). Mr Joy states in his Form F2 Application for an unfair dismissal remedy that he was notified of his dismissal on 4 December 2013 and that it took effect on 3 December 2013. The application was made on 5 February 2014.

[2] By virtue of s.394(2) of the Act 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 under s.394(3). Mr Joy’s application was made 43 days outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s.394(3) for the application to be made. That sub-section provides as follows:

(3) The FWC may allow a further period 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

[3] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[4] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2 Each of the matters in s.394(3) is considered below.

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Mr Joy to make his application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine with respect to any statements provided by the other party. Both parties have filed and served material including submissions and witness statements. Neither party has indicated that it wishes to cross-examine any person who has made a statement. Accordingly, I have determined this matter on the basis of the material on the file.

Consideration

[6] Mr Joy’s material was an email, stating that:

“There were three contributing factors delaying my application for unfair dismissal.

• Timeline of the correspondence to dispute the dismissal with Toll Dnata and the timeframe involved between parties delaying the process;



• My illness;



• The illness of my wife, Acute Myeloid Leukemia




Please refer to question 1.4 of my unfair dismissal application, here I have detailed my reasoning on the delay of my application. My answer continues over two extra pages labelled, Question 1.4 continued (A) and (B) respectively.

This is my first time I have had with this process however I do believe I have documented all that is required. You will note throughout my answer on Question 1.4 I have provided reference documentation.

Documents 1 through to 12 provide my evidence and are located at the end of my application pages. For example there is a current Medical Certificate from my General Practitioner Doc 1 clarifying my health management plan. Doc 2 I have provided a Centrelink certificate completed by my wife’s Bone Marrow Transplant Haematologist clarifying her Acute Myeloid Leukemia. Doc 3 through to 12 provide the timeline of correspondence between Toll Dnata and myself. I have always been transparent with Toll Dnata throughout my time of sick leave. I believe the actions of Toll Dnata delayed my application of unfair dismissal as you will note in the documented emails with Mr Larizza. I had to engage or chase him up as he had not replied to my questions. As documented in Question 1.4 continued (B) Mr Larizza had not answered my email and after 10 days I had to contact him again. The overall correspondence with Mr Larizza was very lengthy as can be noted in Doc 1 through to 12 timeline and was quite distressing on our family during a very difficult time.”

[7] Mr Joy contends that he is seeing a General Practitioner, a Psychologist and a Psychiatrist and is currently on a health management plan for severe anxiety and depression. He has also been diagnosed with Adjustment Disorder, of which the symptoms are low mood, low function and an inability to focus for extended periods of time. Mr Joy also states that his separated wife suffers from a rare form of Leukaemia and is recovering from a bone marrow stem cell transplant and chemotherapy, which has made his life very difficult. There are a number of medical certificates attached to Mr Joy’s Form F2 Application for an unfair dismissal remedy. These essentially state that Mr Joy is unfit for usual duties, but do not specify what impact Mr Joy’s condition had on his ability to make an unfair dismissal application within the required time.

[8] Mr Joy states that the correspondence from Toll Dnata in relation to his termination was inadequate. Although the termination letter was posted to Mr Joy, all other correspondence took place via email, which he was not aware was a formal line of communication. Mr Joy accessed his computer on 4 December 2013, when he discovered four emails - three requiring further information and one terminating his employment.

[9] Mr Joy provided a response to Toll Dnata on 4 December 2013, attaching a report which was 21 pages long. Mr Robert Larizza, Acting Head of Human Resources of Toll Dnata, responded to Mr Joy’s email advising that he would review the matters that were raised, as well as information on the file, and that he would provide a response in due course. Mr Larissa provided a response to Mr Joy on 16 December 2013, advising that he had completed a review of the information, and the decision to terminate Mr Joy’s employment remained unchanged.

[10] Mr Joy states that he then commenced work on preparing his application for unfair dismissal, which was filed in the Commission on 5 February 2014. There is no evidence that Mr Joy was unaware of his dismissal or the date it took effect. Mr Joy had a support person (his father), who responded to this dismissal, however correspondence with the Respondent ceased on 16 December 2013, after which Mr Joy still had over a week to prepare and file an application within the required time frame.

[11] In relation to the merits of the application, Mr Joy was dismissed because of an ongoing and indefinite inability to attend work and perform the inherent requirements of his role. The information set out in the Response to the Application filed by Toll Dnata indicates that Mr Joy was unable to attend work from 18 May 2012 and continued to be absent when he was dismissed. It is asserted that Mr Joy’s employment was terminated on 3 December 2013 on the basis of his ongoing and apparently indefinite inability to perform the inherent requirements of his role, due to illness.

[12] The Respondent does not contend that any prejudice will be suffered if the Commission exercised its discretion under s.394(3) of the Act. However, consistent with the decision in Brodie-Hans v MTV Publishing the mere absence of such prejudice is an insufficient basis on which to grant an extension of time. 3

Consideration

[13] I am not satisfied that there are exceptional circumstances or that the discretion to allow a further period for Mr Joy’s application to be made should be exercised. Mr Joy was notified of his dismissed on 4 December 2013 and it took effect on that date. Mr Joy knew by 16 December 2013 that his attempt to have his dismissal reviewed internally by management of the Respondent had been rejected and that the Company had decided that his dismissal would stand.

[14] Notwithstanding this, Mr Joy’s application for an unfair dismissal remedy was not made until 5 February 2014. I accept that Mr Joy was suffering from a medical condition and that he was also impacted by the illness of his wife. However, there is no evidence that these matters prevented Mr Joy from making his application within the required time.

[15] I also accept that Mr Joy contested his dismissal by seeking a review by a more senior manager. This was completed and the outcome advised to him within the 21 day period following his dismissal. There is no evidence of prejudice to the Respondent other than it will be required to defend the application if time is extended. Further, the merits of the application do not appear to be so strong that they would outweigh the other matters I am required to consider. Given these matters and the lack of exceptional circumstances, it would not be fair to other applicants in a similar position to extend time for Mr Joy.

[16] U2014/4309 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

 3 (1995) 67 IR 298 at 229-300.

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