Mr Peter Grant Biggs v Packaging Pty Ltd

[2019] FWC 6088

[2019] FWC 6088

FAIR WORK COMMISSION

DECISION

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

Mr Peter Grant Biggs
v
Packaging Pty Ltd
(U2019/7677)

COMMISSIONER CIRKOVIC MELBOURNE, 30 AUGUST 2019

Application for an unfair dismissal remedy.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 30 August 2019.

[2] Mr Peter Biggs(the Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment with Packaging Pty Ltd (the Respondent) was unfair.

[3] Applications for unfair dismissal remedies must be filed within 21 days of the date of dismissal. 1 It is uncontested on the evidence that the Applicant was dismissed on 13 December 2018 and that he became aware of his dismissal on that date. He filed his application on 11 July 2019, well outside the 21 day timeframe.

[4] Under s.394 (3) of the Act the Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The issue of extension of time was heard before me on the afternoon of 30 August 2019. The Applicant was unrepresented. Permission to be represented was sought by the Respondent under s.596 of the Act. I declined permission as I was not satisfied that the requirements of s.596(2) had been met.

[6] The Applicant relied upon his application dated 11 July 2019 and material filed with the Commission on 6 August 2019. In addition he filed in court today a three-page set of medical records containing doctor’s notes from consultations on 13 December 2018, 13 March 2019, 16 May 2019 and 29 July 2019. The Respondent relied upon his F3 Response dated 25 July 2019 together with material filed in the Commission on 14 August 2019.

[7] Section 394(3) of the Act sets out the factors which the Commission is to take into account in determining whether there are exceptional circumstances warranting the extension of time to file an application under s.394. These factors are:

(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.

[8] I now address each of these factors in turn.

(a) the reason for the delay

[1] The Act does not specify what reason for delay might weigh in favour of granting an extension however decisions of the Commission have referred to an acceptable or a reasonable explanation. 2 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd aFull Bench of the Commission noted that the absence of an 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 the applicant’s favour, however all of the circumstances must be considered.3 The period of the delay is the period commencing immediately after the time for lodging an application has expired, and ending on the day the application was lodged. However, the circumstances from the date on which the dismissal took effect can be considered in assessing the explanation of the delay.

[2] The Applicant submitted that “in the time leading up to [his] termination … [he] was suffering from exhaustion and depression”. The Applicant submitted that the termination of his employment was the trigger to the exacerbation of his mental health issues which left him “too unwell to address [his] rights … within the 21 day period”.

[3] The Respondent submitted that the Applicant had the full 21 days to lodge his application; had the opportunity to seek legal advice; and did not act in a timely fashion.

[4] Whilst I am sympathetic to the Applicant’s position and indeed any employee who suffers from the loss of their employment, I am not persuaded that in this case the medical evidence before me supports a finding that there is a credible reason for the lengthy delay in excess of six months. The reports that have been provided to me indicate sporadic attendance for medical treatment, and record periods of significant improvement in the Applicant’s condition. Indeed in one report, recorded on 13 March 2019, the Applicant’s treating practitioner records the Applicant “feeling better, more positive and happier”. In addition, on the Applicant’s evidence, he became gainfully employed from mid-April 2019 in a part time capacity and obtained further part-time work in May. For the reasons above, I am not able to accept that there is a credible reason for the delay.

[5] The absence of an acceptable or reasonable explanation for the delay in lodging the application weighs against the Applicant’s application for an extension of time.

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

[1] The Applicant was notified of his dismissal on 13 December 2018. The Applicant accordingly had the full 21 days to lodge the application. This is not a case in which the Applicant became aware of the dismissal after it came into effect and therefore did not have the benefit of the full 21 days for lodging an unfair dismissal claim. Consequently in this case this consideration is neutral.

(a) any action taken by the person to dispute the dismissal

[1] Aside from taking the action before me and requesting his employment separation certificate, the Applicant did not take any action to dispute the dismissal. Consequently in this case this consideration is neutral.

(a) prejudice to the employer (including prejudice caused by the delay)

[1] The Applicant submitted that there would be no prejudice to the Respondent. The Respondent submitted that the long delay gives rise to a general presumption of prejudice. In addition, Mr Romano gave evidence to the effect that the proceeds of the sale of the Respondent’s business had been “frozen, and waiting for these outcomes”. In this case, the lengthy delay weighs against the granting of an extension of time.

(a) merits of the application

[1] Both parties have filed material in relation to the substantive aspect of this matter. The s.394 application is disputed. In applications of this kind, being interlocutory in nature, the Commission “should not embark on a detailed consideration of the substantive case”. I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties which have not been tested. I find this criterion neutral in this matter.

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

[1] Applications to extend time generally turn on their own facts. Neither party made any submission as to this factor. I consider this to be a neutral consideration in this matter.

Conclusion

[2] The time limit that applies to the exercise of a person’s right to bring an application under s.394 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[3] Having regard to all of the matters of which I am required to consider under s.394(3) of the Act, I am not satisfied that there are exceptional circumstances to allow a further period of time for the making of the application by the Applicant. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[4] I decline to grant an extension of time under s.394(3). Accordingly, the Applicant’s application under s.394 of the Act is dismissed.

COMMISSIONER

Appearances:

Mr P Biggs

Mr F Romano

Hearing details:

30 August 2019

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth) s 394 (2).

 2   See respectively Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9]; Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 [16].

 3   [2018] FWCFB 901.