Mr Oscar Tacalan v McElligots (Qld) Pty Ltd

[2013] FWC 9451

[2013] FWC 9451

FAIR WORK COMMISSION

DECISION

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

Mr Oscar Tacalan
v
McElligots (Qld) Pty Ltd
(U2013/8895)

DEPUTY PRESIDENT ASBURY BRISBANE, 2 DECEMBER 2013

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

OVERVIEW

[1] Mr Oscar Tacalan applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by McElligotts (Qld) Pty Ltd. Mr Tacalan states in his application that he was notified of his dismissal on 14 February 2013 and that the dismissal took effect on that date. Mr Tacalan made his application on 26 April 2013, and on the basis of the date stated in his application, 50 days outside the time allowed in s.394(2) of the Act.

[2] This decision concerns the question of whether the Commission should exercise its discretion under s.394(3) of the Act, to extend the time for Mr Tacalan to make his unfair dismissal application.

[3] Directions were issued requiring the parties to file and serve outlines of submissions, witness statements and any documentary material in relation to the question of whether time should be extended. It was also indicated to the parties that if neither wished to cross-examine any witness called by the other party that the matter would be determined on the basis of material on the file.

LEGISLATION AND ISSUES FOR DETERMINATION

[4] 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 FWA allows under s.394(3). That sub-section provides as follows:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) 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.”

[5] 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

[6] Even when exceptional circumstances are established, the Commission has discretion as to whether time should be extended, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2

[7] The issue for determination is whether Mr Tacalan has established that there are exceptional circumstances to trigger the exercise of the discretion to extend time, and whether in all of the circumstances the discretion should be exercised.

EVIDENCE

[8] It appears from the Form F2 Application for an unfair dismissal remedy filed by Mr Tacalan, and his statement in relation to why an extension of time in which to make that application should be granted, that he suffered a heart attack and had by-pass surgery in February 2012. Mr Tacalan has been absent from the workplace since that time, other than on one occasion in 2012 when he went to the workplace to deliver a medical certificate. Mr Tacalan further maintains that McElligotts knew the reason for his absence, and that he provided medical certificates in respect of it.

[9] In his statement in relation to why an extension of time should be granted, Mr Tacalan states that at some time in January 2013, he was told by Centrelink that McElligotts had terminated his employment. Mr Tacalan said that he telephoned his employer immediately to query the situation and was told that he was dismissed, with no explanation being provided.

[10] Mr Tacalan states that he researched his rights as an employee, by going to Fair Work Australia in Mackay and the Mackay Legal Community Centre. He was advised to lodge an application using the internet but had to wait for his daughter, because he does not know how to use the internet.

[11] Mr Tacalan also said that he had a mild heart attack in February 2013. Appended to Mr Tacalan’s statement in relation to the extension of time, were a number of medical certificates covering the following periods:

11 February 2012 to 16 February 2012

17 February 2012 to 15 April 2012

16 February 2012 to 2 September 2012

16 July 2013 to 17 July 2013

15 August 2013 to 15 November 2013

[12] The medical certificates variously state that Mr Tacalan is not fit for work for a specified period or until further notice. There is also a discharge summary indicating that Mr Tacalan was admitted to hospital with Ischaemic Heart Disease on 17 February 2012 after being transferred from another hospital; had surgery on 27 February 2012 and was discharged on 6 March 2012. There is a further discharge report indicating that Mr Tacalan had a cardiac catheterisation procedure on 17 July 2013 and the medical certificate accompanying that report states that Mr Tacalan is unfit to work until further notice.

[13] McElligotts maintains Mr Tacalan last worked for the Company on 10 February 2012 and that it completed a separation certificate for Centrelink on or about 14 February 2013. McElligotts submits that there are no exceptional circumstances to justify an extension of time. In relation to the matters in 394(3) McElligotts submits that:

● Mr Tacalan was aware of his dismissal from at least 14 February 2013 as stated in his application;

● There is no evidence that he took any action to dispute his dismissal; and

● Any prejudice to the Company if time is extended will be compounded by the fact that the events Mr Tacalan asserts caused his heart attack occurred in February 2012.

[14] McElligotts also submits that the application is without merit because Mr Tacalan remains medically unfit to perform his substantive role and did not maintain contact with the Company - other than one visit after his discharge from hospital - in the 11 month period leading to his dismissal.

CONCLUSIONS

[15] Mr Tacalan states in his application for an unfair dismissal remedy that he was notified of the dismissal on 14 February 2013. This is at odds with his statement that he was told by Centrelink in January 2013 that he had been dismissed. For the purpose of these proceedings I accept that the dismissal took effect on 14 February 2013. The application was made on 26 April 2013, 71 days after the dismissal took effect and 50 days outside the time allowed in s.394(2) of the Act.

[16] After considering the evidence provided by Mr Tacalan, I am unable to accept that there are exceptional circumstances such that the discretion to extend time is enlivened. Medical certificates provided by Mr Tacalan do not cover the period between the date the dismissal took effect and the date that the application was made. Further, the medical evidence provided by Mr Tacalan does not establish that his medical condition prevented him from making the application in the required time frame.

[17] Mr Tacalan states that he went to “Fairwork Australia” in Mackay requesting information on how to file a complaint. The Fair Work Commission does not maintain an office in Mackay. The Fair Work Ombudsman also does not maintain an office in Mackay. Mr Tacalan does not state when this visit was alleged to have occurred. Mr Tacalan does state that he was advised to lodge his application over the internet with the appropriate filing fee.

[18] Mr Tacalan also states that he sought advice from the “Mackay Legal Community Centre” and that he was given advice and provided with forms to complete. Mr
Tacalan does not specify when he received this advice or the forms. There is no basis upon which I could be satisfied that Mr Tacalan was provided with incorrect advice. I am also of the view that it is unlikely that a community legal centre would have failed to advise Mr Tacalan of the time frame in which he was required to make his application.

[19] Mr Tacalan gives as a further reason for filing his application outside the required time, that he lacks computer skills and a computer, and was unable to file his application until his daughter returned from holidays.

[20] Ignorance or lack of knowledge about the time limit in which to make an application is not an exceptional circumstance.  3 Similarly, lack of access to the internet is not of itself an exceptional circumstance justifying an extension of time. If a person is diligently pursuing an application, there are steps that can be taken to access the internet4, or the application can be lodged by post. There is also capacity to lodge an application by telephone. In any event, Mr Tacalan lodged his application by post and not electronically. He has not provided evidence of exceptional circumstances which prevented him from lodging it in the required time.

[21] Mr Tacalan states that he was aware of his dismissal and that it took effect on 14 February 2013. There is no evidence that Mr Tacalan took any steps to dispute his dismissal until making his application on 26 April 2013. This is not a matter where fairness between Mr Tacalan and other persons in a similar position is relevant. However, I note that the circumstances relied on by Mr Tacalan are generally of the kind that have been found by the Commission not to constitute exceptional circumstances, and that consistency of approach is desirable for reasons of fairness to other persons whose applications have been refused, in similar circumstances.

[22] McElligotts does not assert prejudice because of the delay in Mr Tacalan making the application, other than the usual prejudice associated with the need to defend it. However I accept that the circumstances Mr Tacalan complains about and which he asserts caused him to have a heart attack occurred in January 2012, and that McElligotts will suffer prejudice if it is required to call evidence in relation to these matters. While those events occurred before the dismissal and any prejudice is not occasioned by the delay in making the application, it is a prejudice nonetheless, and should be weighed in deciding whether the discretion to extend time should be exercised.

[23] Although it is not appropriate to conduct a detailed analysis of the merits of the substantive application in deciding whether to extend time 5, it is the case that the application does not appear to be one where the merits are obvious or of such significance that they would warrant an extension of time in the context of the other criteria.

[24] Mr Tacalan was dismissed after an absence of almost twelve months, and at the point that consideration is being given as to whether the discretion to extend time to make the application should be exercised, Mr Tacalan has not indicated that he is able to return to work, and the medical certificates he has provided give every indication to the contrary.

[25] This is not a case where the discretion to extend time is enlivened. The application by
Mr Tacalan for an unfair dismissal remedy is dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Final written submissions:

25 September 2013.

 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   Matt Dain v Sam Bradley & Robert Grant [2012] FWA 7276.

 4   Leung v ALH Group Ltd T/A Kawana Waters Hotel [2013] FWC 7081 at [42].

 5   Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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