Mr Robert Mant v Iss Security Pty Limited

[2024] FWC 2257

[2024] FWC 2257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Robert Mant
v

Iss Security Pty Limited

(U2024/7307)

COMMISSIONER WILSON MELBOURNE, 22 AUGUST 2024

Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – whether exceptional circumstances – exceptional circumstance not found – application dismissed.

1. This decision concerns an application by Mr Robert Mant for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Mant’s employment with ISS Security Pty Ltd (ISS or the Respondent) was terminated with effect from Wednesday 29 May 2024. His unfair dismissal application was filed in the Fair Work Commission (the Commission) on Tuesday, 25 June 2024.

1. 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). The period of 21 days ended at midnight on Wednesday, 19 June 2024. The application was therefore filed 6 days outside the 21-day period. Mr Mant asks the Commission to grant a further period for the application to be made, under s.394(3) of the Act.

1. ISS opposes an extension of time being granted to Mr Mann for making this application.

1. For the reasons set out below, I am satisfied on the material before me that while Mr Mant was a person protected from unfair dismissal, there are not exceptional circumstances in Mr Mant’s case justifying an extension of time. It follows that I must dismiss his unfair dismissal application.

1. ISS also put forward an objection that Mr Mant was not, at the time of his termination, a person protected from unfair dismissal, with him being a casual employee whose hours of employment were such that he did not have a reasonable expectation of continuing employment by ISS on a regular and systematic basis. Because I have refused Mr Mant’s application for an extension of time, it is unnecessary for me to determine whether Mr Mant was, at the time of his dismissal, a person protected from unfair dismissal.

1. A hearing in respect of the application was held by me on 16 August 2024, at which Mr Mant appeared for himself and gave evidence. In addition, his spouse, Ms Hang Nguyen Thi Thu provided a written statement in support of his application. The Respondent was represented by Mr Dan O’Rourke its Head of Employee Relations. Each party provided written and oral submissions and provided documents for my consideration.  The Applicant provided a written witness statement in support of his case from his wife, Ms Hang Nguyen Thi Thu. The Respondent provided a written witness statement of Ms Amy Tobiasz, a People and Training Coordinator. Neither Ms Hang or Ms Tobiasz were required to give oral evidence.

BACKGROUND

1. Mr Mann was first employed by ISS on 9 August 2023 in the capacity of a casual work safety officer for ISS Facility Services, which is a contractor to Melbourne Airport. Mr Mant’s employment was subject to contractual terms set out in a letter of offer and he was expected to work in accordance with duties set out in a position description. Both documents were provided to him before employment. The letter of offer sets out that the Airport Employees Award 2010 applies to his employment and that his “ordinary hours of work will be on an intermittent and irregular basis or for the purposes of replacing a permanent employee who was rostered off or otherwise absent from work”.[1] As his duties were required to be performed airside, Mr Mant was required to obtain and maintain an Airside Drivers Authority (ADA).

1. Mr Mant’s hours of work over the period of his employment, 9 August 2023 to 29 May 2024, varied between fortnights. ISS puts forward that Mr Mant’s hours of work varied between 9.5 hours in one particular fortnight and 114.75 hours in another.[2] ISS also argue Mr Mant was employed as a casual employee for under 12 months and did not complete regular and systemic shifts during his period of employment.[3]

1. Melbourne Airport regulates the activities of people employed by its contractors, including by issuing penalty infringement notices in the event of certain actions contrary to its policies, such as for unsafe driving airside. During his period of employment, Mr Mant was issued with two penalty infringement notices (PINs) by Melbourne Airport. The first was on 8 December 2023 and the second on 25 January 2024. The first PIN resulted in a caution being issued to Mr Mant for his conduct and the second resulted in a penalty of six investigation points.[4] The significance of the penalty is that Melbourne Airport’s policy is that, should an airside driver accumulate 12 or more penalty points within any 36 month period, their ADA will be suspended for a period of 14 days, during which a show cause process may be commenced with the potential for a complete withdrawal of the ADA.

1. On 10 May 2024, Mr Mant was advised by Dean Sinclair, ISS’ Airfield Operations Manager, that approval had been received from Melbourne Airport for Mr Mant to commence training along with a number of other ISS work safety officers for accreditation at Level 3 ADA. The Level 3 ADA training was to commence on 11 June 2024.

1. Until notification of the commencement of training and throughout his period of employment, Mr Mant had been registered at Level 2 ADA. He had obtained the Level 2 ADA prior to commencing employment with ISS.

1. ISS submit that Mr Mant did not demonstrate the competence needed to complete Level 3 ADA training, which it says was due to matters of his geographical understanding as well as his inability to understand the use of a tablet needed for Airside Vehicle Escort. ISS then dismissed Mr Mant on 29 May 2024, about a week after one of the training modules was conducted.

1. ISS say about Mr Mant’s termination that it came about “due to Applicants performance and being unable to maintain the qualifications of the role (Level 2 training), the decision was made to terminate the Applicants casual employment, due to not being able to fulfil the inherent requirements of the role”.[5] It also refers to the PINs issued as being performance management events, that required Mr Mant to be retrained over an extended period and puts forward that Mr Mant failed to meet minimum competency requirement standards “as set out in his position description”.[6]

MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION

1. 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”. Exceptional circumstances have been defined as 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.[7] 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.[8]

1. 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.

1. Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:

“394 Application for unfair dismissal remedy

(1) ….

(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.”

1. 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.

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

Reason for the delay

1. The Act does not specify whether a particular reason for the delay might tell in favour, or not in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation.

1. The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.¹⁷ The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.¹⁸ An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.¹⁹ While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.²⁰ 

1. The reasons for Mr Mant’s delay in making an unfair dismissal application outside of the statutory time limit are the effect which the dismissal had on his mental health as well as the time it took for him to obtain legal advice about his situation and then the time taken by him to gather information required for the Commission’s forms.

1. In relation to the first issue, Mr Mant reports being shocked by the decision to dismiss him which came without warning. He especially thought it was unfair as he had no written notice of poor work performance or misconduct.

1. After the dismissal took place, Mr Mant reports a severe impact on his mental health, experiencing severe depression and anxiety. These latter symptoms emerged including for reason of his worry about the financial impact on his family of the decision to terminate his employment.

1. After the dismissal took place, Mr Mant endeavoured on several occasions to obtain legal advice from Legal Aid Victoria. He attended their offices at Sunshine on at least one occasion as well as communicating with them by other means. Mr Mant approached Legal Aid Victoria because he was uncertain as to what he could do to challenge the dismissal. It took some time, perhaps slightly more than a week, for him to obtain information about what could be done. In terms of timing, Mr Mant’s dismissal took place on Wednesday, 29 May 2024; he initiated contact with Legal Aid Victoria in the week commencing 3 June 2024; and then in the week commencing 10 June 2024 received the final advice which included that Mr Mant should consider making an unfair dismissal application to the fair work Commission.

1. Mr Mant also reports as a factor in the delay in making his application the time taken to complete the Commission’s fee waiver form, which required information he needed to gather, which itself took some time.

1. In finality Mr Mant made a decision to lodge his unfair dismissal application only on or around the day it was made, that is Tuesday, 25 June 2024.

1. Neither singularly, or in combinations, do these matters amount to an acceptable explanation for the delay in making of Mr Mant’s unfair dismissal application.

1. In relation to Mr Mant’s health, there is no evidence before me that his circumstances were so debilitating that he was unable to make an in-time application to the Commission. He did not consult a medical practitioner or psychologist about his circumstances and there is no evidence before me other than Mr Mant’s about the nature of his poor health. In this regard, the Commission has said repeatedly that requests for an extension of time involving the proposition that a medical illness explains a filing delay requires compelling medical evidence to that effect. In order to accept evidence of this type, the Commission expects to have an insight into the extent of the person’s incapacity during the whole of the period following termination of employment. Cogent medical evidence of these things will likely need to be provided.[9]

1. Mr Mant’s efforts to obtain legal advice from Legal Aid Victoria are of course to his credit and especially so given that he took time to attend their office. However, the timeline referred to above would indicate that Mr Mant had received advice from Legal Aid Victoria at some stage in the week of 10 June 2024, which is well before the final day for the making of an in-time application, which in this case was Wednesday, 19 June 2024.

1. Taking into account that the delay to be considered by the Commission in extension of time matters is the time period beyond the prescribed 21 day period for lodging an application, there is no explanation before me at all in respect of why or how an inability to obtain legal advice caused Mr Mant’s application to be six days late.

1. With respect to the information collection matters relied upon by Mr Mant for the purposes of completing the Commission’s fee waiver form, there is nothing before me that would suggest the information required in Mr Mant’s case was unavailable to him such that it would take many more days than usual for him to obtain and report the information to the Commission. I take into account that the majority of applicants complete and submit the form within the statutory time period.

1. As I have found that there is a significant period associated with the overall delay, which is not the subject of an acceptable or reasonable explanation, my consideration of this criterion leans against an extension of time being granted to Mr Mant for the making of his unfair dismissal application.

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

1. Mr Mant was notified of the dismissal on the same day that it took effect. This is therefore a neutral consideration in my determination of whether there are exceptional circumstances.

Action taken to dispute the dismissal

1. The evidence before the Commission is that Mr Mant disputed his dismissal only by making this application. I therefore consider this factor to be a neutral consideration and determination of whether there are exceptional circumstances.

Prejudice to the employer

1. I do not discern any prejudice that would accrue to ISS if an extension of time were to be granted, however note that ISS considers it would be disadvantaged because of the additional cost and loss of productivity it would incur if the matter proceeded. These matters do not compellingly illustrate prejudice to ISS if the matter were to proceed. Accordingly, this factor is also a neutral consideration in determination of whether there are exceptional circumstances.

Merits of the application

1. The merits of the application to which I must have regard are formed upon a consideration of whether the limited evidence I have before me discloses a likely unfair dismissal.

1. At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[10] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively, whether it appears an applicant’s case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[11]

1. As very little has been filed by either party in respect of the merits of their respective cases, this is a neutral consideration in my overall decision about an extension of time.

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

1. In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants, whose applications are either currently before the Commission, or have been decided in the past.[12] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[13] As referred to above, I also take into account that Mr Mant claims difficulty in completing the Commission’s fee waiver form, when many other applicants submit it within the statutory time period. This criterion is therefore a neutral consideration in determining whether there are exceptional circumstances in relation to Mr Mant’s application for unfair dismissal remedy.

CONCLUSION

1. Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Mr Mant, I am not satisfied that there are exceptional circumstances that would warrant an extension of time for the making of his application for unfair dismissal remedy.

1. None of the factors requiring consideration under s.394(3) lean towards a finding of exceptional circumstances.

1. As a result of this finding, Mr Mant’s unfair dismissal application must itself be dismissed and an order to that effect is issued at the same time as this decision.[14]

COMMISSIONER

Appearances:

Mr R. Mant, the Applicant

Mr D. O’Rourke, for the Respondent

Hearing details:

16 August.
2024.

[1] Letter of Offer, 2 August 2023.

[2] Form F3, Employer Response Form, item 3.1.

[3] Ibid, item 2.2.

[4] Applicant’s Documents, 3 and 4.

[5] Form F3, Employer Response Form, item 3.2.

[6] Respondent’s Outline of Argument: Objections, item 1h.

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[8] Ibid.

[9] See Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu Duo (Lynda)[2018] FWCFB 1643, [38], [67]

[10] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].

[11] Haining v Deputy President Drake (1998) 87 FCR 248, [250].

[12] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].

[13] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].

[14] PR778569.

Printed by authority of the Commonwealth Government Printer

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