Mr John Thomas Wintle v Maryborough Tyre Service Pty Ltd
[2022] FWC 3363
•22 DECEMBER 2022
| [2022] FWC 3363 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Thomas Wintle
v
Maryborough Tyre Service Pty Ltd
(U2022/11271)
| COMMISSIONER JOHNS | MELBOURNE, 22 DECEMBER 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
On 25 November 2022 John Thomas Wintle (Applicant), made an application to the Fair Work Commission (Commission) under s.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 Maryborough Tyre Service Pty Ltd (Respondent).
The information provided in the application and in the employer response form lodged by 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.
The hearing
At the hearing, the Applicant sought permission to be represented by a lawyer. The Respondent did not object.
Having considered the submissions of the Applicant, I determined that it would not be unfair not to allow the Applicant to be represented because the Applicant is unable to represent himself effectively.
Accordingly, at the hearing the Applicant was represented by Mr David Hewitt, Principal at Herring & McMillan and the Respondent was self-represented.
The hearing was conducted by video on Microsoft Teams on 14 December 2022.
Submissions
In addition to her Form F2 Application, which at item 1.6 explained why his application was not filed within 21 days of the dismissal, the Applicant filed submissions in the Commission on 12 December 2022.
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?
The parties are in dispute about when the dismissal took effect.
Submissions
The Respondent submits that the dismissal either took effect on 7 September 2022 when the Applicant was removed from the workplace by the police, or on 20 September 2022 when it sent the Applicant a letter of termination by registered post.
The Applicant submits that he was not notified of the dismissal on 7 September 2022 and did not receive a letter of termination because it was sent to the incorrect address.
However, at the hearing before me Mr Hewitt, acting for the Applicant, conceded that the date of dismissal was 7 September 2022.[1]
Findings
I find that that date of dismissal was 7 September 2022.
When was the application made?
It is not in dispute, and I so find, that the application was made on 25 November 2022.
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.”[2]
As I found above, the dismissal took effect on 7 September 2022. The final day of the 21 day period was therefore 28 September 2022 and ended at midnight on that day. As I found above, the application was made on 25 November 2022. Therefore, the application was made 58 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.[3]
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 28 September 2022. The delay is the period commencing immediately after that time until 25 November 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
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.[5]
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.[6]
Submissions
The Applicant submitted that the delay was for the following reasons:
·Not receiving any written notice of the dismissal,
·Mental health issues including PTSD, anxiety and depression.
·An inability to see his legal representative to proceed with the application due to:
oflooding within in his region preventing travel,
oneeding to protect his house from the possibility of flood damage, and
ohis mental health issues
In relation to the reason for the delay, the Respondent submitted that the Applicant “made claims immediately to WorkCover, WorkSafe and the Fair Work Commission for final payment within the timeframe”. The Respondent submitted that therefore there is no justifiable reason to extend the 21 day time period when the Applicant was capable of lodging three other claims during this time.
Evidence
The Applicant provided a medical report and a certificate of capacity from his doctor dated 15 September 2022 attesting to his mental health issues. However, that evidence was not sufficient to explain all of the period of the delay.
Findings
Having regard to the above, I find that the reason for the delay were the Applicant’s mental health issues and his inability to see his legal advisor. I am not satisfied that the absence of a written notice of dismissal was a reason for the delay. On the Applicant’s own evidence it must have been clear to him that he had been dismissed.
Did the Applicant first become aware of the dismissal after it had taken effect?
As stated above I am not satisfied that the absence of a written notice of dismissal was a reason for the delay. On the Applicant’s own evidence it must have been clear to him that he had been dismissed. I find that the Applicant understood that his employment ended on 7 September 2022. Mr Hewitt made an appropriate concession about the date of dismissal.
What action was taken by the Applicant to dispute the dismissal?
The Applicant submitted that he did not know he was dismissed. Therefore, other than making some initial contact with his legal representative, there was no action taken by the Applicant to dispute the dismissal.
Having regard to the above, I find that the Applicant did not take any action to dispute the dismissal.
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.
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 s.366(2)(d)”[7] and the same applies to s.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. The Applicant has an apparent case, to which the Respondent has an apparent defence. However, if I were required to make an assessment, I would say that the Respondent likely has the stronger merits case.
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:
(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.[8] 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.[9]
Having regard to all of the matters at s.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
[1] See Transcript PN24.
[2] 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.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
Printed by authority of the Commonwealth Government Printer
<PR749221>
0
0
0