Mr Liam McCarthy v Bacova Holdings Pty Ltd T/A National Capital Motors

[2020] FWC 4399

[2020] FWC 4399

FAIR WORK COMMISSION

DECISION

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

Mr Liam McCarthy
v
Bacova Holdings Pty Ltd T/A National Capital Motors
(U2020/2056)

COMMISSIONER RIORDAN SYDNEY, 1 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Mr Liam McCarthy (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).

[2] This matter was heard by the late Deputy President Kovacic on 15 June 2020 (the Hearing). Deputy President Kovacic tragically passed away on 31 July 2020. The President of the Fair Work Commission referred this matter to me on 10 August 2020, for determination. I have read all the material submitted by the parties and viewed the recording of the Hearing in determining the matter. I convened a Conference on 18 August 2020, where I advised the parties of my Decision. At my invitation, the Applicant requested that I publish my Decision.

[3] The Applicant’s employment with Bacova Holdings Pty Ltd (the Respondent) was allegedly terminated with effect from 3 January 2020. It is not in dispute that the Applicant’s last day of work was 24 December 2019. The Applicant was advised on 17 December 2019, whilst still in his probation period, that his employment was going to be terminated. The Applicant was paid 4 weeks’ pay in lieu of notice on 3 January 2020. The Respondent claims that the Applicant resigned. The unfair dismissal application was lodged on 24 February 2020.

[4] Section 394(2) of the Act states that 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 pursuant to s 394(3) of the Act. The period of 21 days ended at midnight on 24 January 2020. The application was therefore filed 31 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be lodged in accordance with s 394(3) of the Act. The Respondent opposes this application.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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. 1 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.2

[6] Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Reason for the delay

[8] The Act does not specify what reason for delay might tell in favour of granting an extension of time for the Applicant to lodge their application, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, whilst a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3

[9] The Applicant cited several matters as reasons for the delay in lodging the application. The Applicant submitted that during January 2020, he was assisting his family fight and recover from the bush fires that were wreaking havoc in NSW and the ACT. It was the Applicant’s evidence that he was assisting his uncle repair damage to his farm until 21 January 2020. Upon returning to his home on 21 January 2020, the Applicant’s house was under threat. Ultimately, the Applicant and his family evacuated Canberra, choosing to relocate to Sydney, as the thick smoke was affecting the health of his wife and daughter. Notably, on 30 January 2020, the Applicant emailed the Respondent and stated his displeasure as to how he was treated whilst working for the Respondent. The Applicant returned home on 3 February 2020 and spent the next few days, until 5 February 2020, preparing his children for the new school year. The Applicant stated that he did not decide to file his Unfair Dismissal application until the date that it is was filed. ie, 24 February 2020.

[10] The bushfires on the South Coast of NSW, Southern NSW and the Australian Capital Territory and its surrounding area in January 2020 were catastrophic. I applaud the Applicant for his bravery and resilience during this period of time. If the Applicant’s application was only a few days or even two-three weeks late, then I would be prepared to support the proposition that exceptional circumstances existed in delaying the lodgement of the Applicant’s application. Unfortunately, the application was lodged more than four weeks late. The Applicant sent an email to the Respondent on 30 January 2020. The Applicant was obviously capable of clear thought and productive capacity by that time. Even if I were to take 30 January 2020, as the start date for the Applicant’s twenty-one-day period, the application is still lodged four days late without an acceptable reason.

[11] I find there is no acceptable explanation to justify the late lodgement of the Applicant’s application.

[12] The absence of an acceptable explanation weighs against the conclusion that there are exceptional circumstances in this matter.

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

[13] The Applicant was aware that he was being terminated on 17 December 2020, at which point the Applicant, upon invitation by the Respondent, chose to resign. The Applicant conceded that his employment concluded no later than 3 January 2020. I have taken this into account.

Action taken to dispute the dismissal

[14] The Applicant wrote to the Respondent on 30 January 2020, to complain of how he was treated whilst working for the Respondent. I have taken this into account.

Prejudice to the employer

[15] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice, is not, in my view, a factor that would point in favour of the grant of extension of time.

Merits of the application

[16] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact, namely, whether the Applicant resigned of his own free will or was constructively dismissed. These assertions would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits of the application to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[17] I am not aware of any other employee of the Respondent in a similar position. As a result, this issue is of neutral consideration.

Conclusion

[18] Having regard to the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances which would justify the granting of an extension for 31 days. As a result, I decline to grant an extension of time under s 394(3).

[19] On the basis that I have determined not to grant an extension of time, there is little utility in determining whether the Applicant was dismissed or resigned his employment.

[20] For the reasons stated above, the application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]