Mr Michael Jones v Keilor Veterinary Services Pty Ltd
[2024] FWC 2526
•17 SEPTEMBER 2024
| [2024] FWC 2526 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Jones
v
Keilor Veterinary Services Pty Ltd
(U2024/8916)
| COMMISSIONER LEE | MELBOURNE, 17 SEPTEMBER 2024 |
Application for an unfair dismissal remedy-circumstances not exceptional-application dismissed.
This decision concerns an application by Mr Michael Jones (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
The Applicant’s employment with Keilor Veterinary Services Pty Ltd (Respondent) was terminated with effect from 9 July 2024. The unfair dismissal application was lodged on 31 July 2024.
S.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). The period of 21 days ended at midnight on 30 July 2024. The application was therefore filed 1 day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.
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]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
S.394(3) 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.
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
The Act does not specify what reason for delay might tell in favour of granting an extension 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, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.[3]
The Applicant cited several matters as reasons for the delay in lodging the application. These are as follows:
“At the time of submitting the unfair dismissal claim I believed that the effective date of dismissal was the 10th of July. Which is why I responded to “yes” to the question 1.4 on Form F2 (ATCH: 1) of whether the claim is being lodged within the 21 days limit. Due to that, I thought I had until the 31st to submit the unfair dismissal claim. My answer to 1.3 was a mistake, as I thought by take effect that meant the last time I worked there.
I thought the effective date of dismissal was the 10th because on the 9th July I asked for a notice of separation and was told “you’ll get it tomorrow”. So I thought that constituted the effective date of dismissal. I didn’t have this in my F2 form, as I’d hit the character limit and didn’t think it important. Although Lesa alludes to it in F3 response, Lesa words it differently (ATCH: 2).
The first time I became aware that I was fired for misconduct was on the 28th of August, when I received a copy of Lesa’s F3 form response to my unfair dismissal claim. (ATCH: 2) Because I did not receive a notice of separation until the 29th of August (ATCH: 3). I did not know that it was for misconduct until the 28th of August from the F3 Form. And because of that, at the time that I filled out the F2 form, I did not understand that the dismissal was immediate on the 9th.
As I had requested a notice of separation on the 9th of July and I should have been provided that within 14 days, even if I didn’t get it the next day as Lesa said, I still would have been able to see that the dismissal was for misconduct and understood that the effective date of dismissal was the 9th of July from that. If I had known that, I would have known the 21-days ended on the 30th of July and I would have submitted my claim on that day.”[4]
The first point to make is that the key reason advanced for the delay is the claim that the Applicant believed the effective date of dismissal was 10 July. While this is really a matter to consider under s.394(3)(b) I will nevertheless consider it under this heading.
I do not consider this explanation, individually or together, to be an acceptable or reasonable explanation for the delay. I do not accept that the Applicant understood his dismissal took effect on 10 July. That is because, on his Form F2 he stated that it took effect on 9 July. His reasons advanced for suggesting that, despite writing 9 July, he actually thought it was 10 July are not plausible.
Firstly, it is inconsistent with the statement in his Form F2 as to what occurred on 9 July, which include:
“She said that she was going to talk to the practice manager about firing me on Monday. I said that wasn't fair, if I'm not fired, she shouldn't threaten me with it, she's the owner and boss, just tell me, are you going to fire me? She said yes. I asked am I fired? She said yes.”[5]
The Applicant did not work on 10 July. His suggestion that his “…answer to 1.3 was a mistake, as [he] thought by take effect that meant the last time [he] worked there” is not plausible as the last time he worked there was not 10 July 2024.
During the hearing, the Applicant stated, “frankly, I didn't understand the process, which is the big issue. If I had of got the separation certificate, then I would have had a heads up that I was wrong. So that's, I guess the basis for me asking for an extension.”
I have considered that explanation for the delay. However, against the background set out above, the fact that the Applicant received the separation certificate on 29 August 2024 indicating he was dismissed for misconduct is irrelevant to his understanding as to when his dismissal took effect as he was told by Ms Oldcastle that he was fired on 9 July 2024.
Having considered the reasons advanced by the Applicant for the delay, I am not satisfied that there is an acceptable reason for the delay. The absence of an acceptable explanation weighs against the Applicant and a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
Consistent with my consideration of the reason for the delay, I am satisfied that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
The Applicant submitted that he took no action to dispute the dismissal[6]. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the employer 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 granting an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. In this matter the Respondent did not submit there was any prejudice. In the circumstances this is a neutral consideration.
Merits of the application
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 which 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.
The Applicant submits:
“Because the dismissal was harsh and unreasonable, I hope the claim can continue. Bringing up a basic safety issue should not result in my dismissal, sharps must be disposed of correctly. The claims made that I acted aggressively are grossly false. And because there were two clients at the clinic who would have heard significant parts of the incident, I believe I can show that.”[7]
The Respondent submits that the dismissal was because of the misconduct of the Applicant on 9 July, including threatening and menacing behaviour.
I note that the Respondent is a small business within the meaning of the Act and the Small Business Fair Dismissal Code (the Code) would apply. If the alleged conduct met the threshold of serious misconduct the Respondent would need only establish it had a “reasonable belief” that the conduct occurred consistent with the Code. However, whether the alleged conduct could be considered serious misconduct is not clear.
In all the circumstances I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, the Applicant said, “I think where other people are not reasonably aware of the effective date of dismissal they may be granted an extension.”[8] As stated earlier, the Applicant was aware of the effective date of dismissal and his claim that he was not is not accepted.
I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. The reason for the delay weighs against the Applicant and there are no factors which weigh in favour of the Applicant. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
An order[9] to this effect will be issued concurrently with this decision.
COMMISSIONER
Appearances:
M Jones, the Applicant
L Oldcastle, for the Respondent
Hearing details:
16 September 2024.
Video using Microsoft Teams.
[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].
[4] Digital Court Book at page 5.
[5] Ibid at page 4.
[6] Ibid at page 6.
[7] Ibid.
[8] Ibid.
[9] PR779294.
Printed by authority of the Commonwealth Government Printer
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