Mr Mark Ellenden v Gebie Civil and Construction Pty Ltd

[2019] FWC 5978

[2019] FWC 5978

FAIR WORK COMMISSION

DECISION

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

Mr Mark Ellenden
v
GEBIE Civil and Construction Pty Ltd
(U2019/7194)

COMMISSIONER SIMPSON BRISBANE, 1 OCTOBER 2019

Application for unfair dismissal – Jurisdictional objection –Application lodged out of time –– whether extension of time should be granted – no exceptional circumstances existed – extension not granted – application dismissed.

[1] This matter concerned an application made in accordance with section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. The application was made by Mr Mark Ellenden who alleges his employment with GEBIE Civil and Construction Pty Ltd (the Respondent) was terminated unfairly.

[2] On 1 July 2019 the Commission received a “Form F2 – Unfair Dismissal Application” from Mr Ellenden. Part 1.5 of the Application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Mr Ellenden answered on the Form F2 “I have spoken to Fair Work Commission 1/07/2019 and sent an application online from Fair Work Homepage some weeks ago and waited for a response and have heard nothing so tried again today as I am unsure of the process. I am 65 years old, a cancer survivor, unemployed and receiving no income since my termination. I was also of the opinion that I had 21 days from the end of the pay date from my previous employer.”

[3] On 4 July 2019 correspondence was sent to Mr Ellenden and the Respondent advising that the application was out of time and a conciliation conference had been scheduled for 1 August 2019.

[4] On 11 July a Form F3 was filed by Mr Will Snow, a lawyer of Finlayson’s Lawyers acting on behalf of the Respondent. The Form F3 raised a jurisdictional objection that the application was filed out of time. The Form F3 stated that written notice of dismissal was given on 23 May 2019 and included that it was effective immediately with Mr Ellenden to be paid four weeks’ pay in lieu of notice, and as the application was filed on 1 July 2019 it was filed 18 days outside the time limit. The Respondent submitted that Mr Ellenden’s explanations for the delay in filing were not exceptional circumstances. In separate correspondence from the Respondent’s representative to the Commission, the Respondent advised it did not wish to attend a conciliation conference, and the conciliation was cancelled.

[5] On 19 July 2019 correspondence was sent to Mr Ellenden from the Chambers of Vice President Catanzariti and copied to the Respondent and its representative requesting a written statement explaining why an extension of time for filing of the application should be granted.

[6] On 23 July 2019 Mr Ellenden sent by email to the Commission a three page document dated 21 July 2019. The document included a statement as follows:

“I am honest when I say I was unaware of timeframes and guidelines re lodging this application and have been at my lowest point since being (I feel) terminated from GCC. I was also concerned that living here on Groot Eylandt under my current health and employment situation, opportunities would be made more difficult with people being aware of my actions to dispute my termination by Mr. Glen Smith and GCC…”

[7] The matter was subsequently allocated to my Chambers. The matter was listed for mention on 28 August 2019. Mr Ellenden represented himself and I granted leave for Mr Snow to represent the Respondent for the purposes of the jurisdictional objection. As Mr Ellenden had already filed material, directions were issued following the mention for the Respondent to file a written submission by 11 September, and Mr Ellenden to file any material in reply by 18 September, with the a hearing if necessary on 24 September. I indicated I may not have a hearing if there were no disputed factual issues.

[8] On 3 September the Respondent’s representative filed a two page submission which included that ignorance of the timeframe as stated by the Mr Ellenden in his 23 July submission is not a genuine exceptional circumstance.

[9] It was also submitted for the Respondent that Mr Ellenden stated in his Form F2 that he was of the opinion that the 21 day period applied after his last pay date, however even if this incorrect understanding was considered to be an exceptional circumstance, it could not justify granting an extension of time because Mr Ellenden’s final payment was made on 29 May and would still leave the application significantly out of time.

[10] On 13 September Mr Ellenden provided a further written submission with accompanying documentation including correspondence dated 6 September 2019 from Peta Greig, a Rural Medical Practitioner at the Alyangula Community Health Centre, and a Medical Certificate dated 17 May 2019, and a further Medical Certificate dated 20 May 2019.

[11] The further written submission included the following:

“4. I notice the attached termination letter was dated 22nd May 2019 whilst I was still on a medical certificate from a medical condition that occurred whilst I was at work.

5. I rejected the airfare offer as I have son in Grade 8 at Alyangula School, a vehicle, personal effects and a diabetic wife. My present health and financial situation would have been far worse as we would have nowhere to go.

6. The Respondent says, “Ignorance is no excuse”, with my late unfair dismissal application to the Fair Work Commission. I was unaware of the timeframe whilst I was being supported by friends and also having to deal with health issues affecting my daily routine as a consequence of this dismissal. This also affected my family especially my wife and continues to do so.”

[12] I determined to proceed to hear the parties on 24 September 2019 as I sought clarification around a matter that Mr Ellenden raised in his Form F2 but did not address further in his subsequent submissions concerning what appeared to have been an attempt to file an application prior to 1 July 2019.

[13] Mr Ellenden accepted that there appeared to be no other factual disputes with regard to the extension of time issue and Mr Snow appeared to be in agreement. Mr Ellenden advised the Commission that, in relation to his statement in the Form F2 at Question 1.5, it may well have been he looked at the FWC website, and indicated he did not attempt to file an application at that time.

[14] Section 394 of the Act provides:

“ Section 394 Application for unfair dismissal remedy

(2) The application must be made:

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

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

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the GWC is satisfied that there are exertional 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;

(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.”

Section 394(3)(a) – Reason for Delay
[15] Mr Ellenden’s reasons for the delay include ignorance of the time limit, the fact of his living on Groot Eylandt with his health situation, and while seeking other employment others being aware of his making an application may make it more difficult. I am not satisfied any of these matters are exceptional circumstances.

[16] I have considered the correspondence of 6 September 2019 from the Alyangula Community Health Centre. The symptoms described are not of such a nature to be able to conclude Mr Ellenden was unable to file an unfair dismissal application. The correspondence from the Rural Medical Practitioner does not suggest Mr Ellenden would have been unable to file an unfair dismissal application within 21 days of his dismissal.

[17] The other medical certificates provided pertain to the period whilst Mr Ellenden was still employed and he had returned to work on the day he was dismissed.

[18] Having considered each of the matters raised by Mr Ellenden I am not satisfied Mr Ellenden’s reasons for delay are sufficient to weigh in favour of granting an extension under s.394(3)(a).

Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect

[19] I am satisfied Mr Ellenden was aware of his dismissal on 23 May 2019 and had enough time to submit his application within 21 days. This does not tend to support the case for the granting of an extension under s.394(3)(b).

Section 394(3)(c) – any action taken by the person to dispute the dismissal

[20] Mr Ellenden indicated that he had given consideration to filing an application at an earlier time but had not done so. There is no other material that suggests Mr Ellenden had actively disputed his dismissal prior to filing the application. The consideration in s.394(3)(c) does not weigh in favour of granting an extension.

Section 394(3)(d) – Prejudice to the employer

[21] While proceeding with the application may cause some inconvenience to the Respondent, it would not be sufficient to weigh in favour of not granting an extension.

Section 394(3)(e) – The merits of the application

[22] The contentions in relation to the dismissal give rise to factual disputes that I should not give detailed consideration to as they go to the substantive case. I am satisfied that it is appropriate to regard the consideration under s394(3)(e) as a neutral matter.

Section 394(3)(f) – Fairness as between the person and other persons in a similar position

[23] There are no specific submissions relevant to this criteria and I will regard this criteria as neutral.

Conclusion

[24] I have taken into account each of the elements of s.394(3) of the Act. This matter does not give rise to exceptional circumstances that would warrant the granting an extension of time beyond the 21 day time limit. On that basis the application is dismissed.

COMMISSIONER

Appearances:

M Ellenden, self represented.

W Snow, solicitor of Finlaysons Lawyers on behalf of the Respondent.

Hearing details:

2019.

Brisbane.

24 September.

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