Mr Schvoe Pritchard v Cleanaway Operations Pty Ltd
[2024] FWC 1992
•30 JULY 2024
| [2024] FWC 1992 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Schvoe Pritchard
v
Cleanaway Operations Pty Ltd
(U2024/7201)
| DEPUTY PRESIDENT O'NEILL | MELBOURNE, 30 JULY 2024 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances not found – application dismissed.
On 22 June 2024, Mr Schvoe Pritchard made an application to the Commission for an unfair dismissal remedy. He contends that he was unfairly dismissed by the Respondent on 31 May 2024.
Section 394(2) of the Fair Work Act 2009 (Cth) (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 21 June 2024. The application was therefore filed one day outside the 21-day period.
For the application to proceed, Mr Pritchard requires the Commission grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a hearing on 29 July 2024, at which the Applicant gave evidence in support of his application.
Extension of time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay,
· whether the person first became aware of the dismissal after it had taken effect,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.
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.[3]
Relevant factors
Reason for delay:
The Act does not specify what reason for delay might justify 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 the applicant’s favour, however all of the circumstances must be considered.[4]
The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[5] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.[6]
The Applicant was dismissed on 31 May 2024.
The Applicant’s explanation for the delay is that because of the termination of his employment, he has suffered from some mental health issues, his anxiety levels are high, and he has been looking for another job to support his family as a single father. He further relies on the fact that he has no experience or support in the matter, and that he misunderstood how the 21-day period is calculated, and assumed it was 21-business days and not calendar days. Because of this assumption, he believed he was submitting his application early and within the prescribed time limit.
Having considered this material, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging his application. None of the matters he relies upon are unusual or exceptional, and there was no evidence concerning the details of the nature and impact of his mental health issues on his capacity to make an unfair dismissal application. Further, despite the Applicant’s mental health issues he was able to make an application, although one day late, but in circumstances where he mistakenly believed it to be within time.
The principal reason for the delay was the Applicant’s erroneous assumption of how the 21-day time limit is calculated. The Applicant accessed the Commission’s website when making his application using the online lodgment system, and the information on the website includes clear information on the timeframe for lodgment, including how the 21 days is calculated.
In those circumstances, I am not persuaded that the Applicant has provided an acceptable, credible, or satisfactory explanation for the one-day delay. The fact that there is not such an explanation for the whole of the period of the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect:
The Applicant agrees that the dismissal was communicated to him when it occurred on 31 May 2024 when he was handed a letter terminating his employment. Consequently, he had the benefit of the full 21-day period within which to lodge the application. It is not as though he discovered that his employment had ended after it took effect. This also weighs against concluding that there are exceptional circumstances.
Whether the Applicant took action to dispute the dismissal:
If an applicant disputes a dismissal with his or her employer before lodging the application and after the dismissal takes effect, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal. In such circumstances the fact that there was notice of such a dispute is a matter which would weigh in the applicant’s favour, even though the application was lodged out of time.
Mr Pritchard did not take any steps, beyond lodging the application, to dispute his dismissal after it took effect.
Prejudice to the employer (including prejudice caused by the delay):
Ultimately, though there is no prejudice suffered by the Respondent, I consider that this matter weighs neutrally. But if it were to weigh in Mr Pritchard’s favour at all, it would do so very slightly. The absence of prejudice is not in and of itself an exceptional circumstance, nor does the short period of delay justify such a conclusion.
Merits of the application:
The merits of the application are a relevant consideration in determining whether there are exceptional circumstances and whether it is appropriate to exercise the discretion to extend the timeframe. For example, a highly meritorious claim may persuade the Commissioner to accept an explanation for delay that would otherwise have been insufficient.
The Applicant was suspended on pay from 9 April 2024 pending an investigation into allegations of inappropriate conduct towards another employee, allegedly in retribution for a complaint made about another employee. He was subsequently dismissed for serious misconduct, having been advised of the investigation findings and given an opportunity to respond to them. The Applicant denies the allegations on various grounds, including that he has not been provided with adequate training on his role and that the allegations were ‘word of mouth’ and there was no hard evidence of his misconduct.[7]
On the material presently before the Commission, Mr Pritchard’s case does not appear especially strong, and not a basis to weigh positively towards a finding of exceptional circumstances. I have treated it as a neutral consideration.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how cases involving similar circumstances were treated to ensure there is fairness in the treatment of Mr Pritchard’s claim. However, cases will generally turn on their own facts.
The Respondent raised two examples of cases said to be relevant to this consideration.[8]
In addition to these examples, there are numerous decisions that have determined that exceptional circumstances do not exist in similar circumstances to the position of the Applicant. I have treated this to be a neutral consideration in this case.
Conclusion
Having regard to the matters I am required to take into account under s.394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In particular, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging his application and the merits of his claim are not especially strong. Having regard to all the evidence, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
As there are no exceptional circumstances, no additional time can be allowed for Mr Pritchard to make his application. This means that he is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately
DEPUTY PRESIDENT
Appearances:
S. Pritchard, the Applicant appearing on his own behalf.
A. Curtis, appearing on behalf of the Respondent.
Hearing details:
2024
29 July
Via Microsoft Teams
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].
[7] Applicant’s F2, Digital Hearing Book (“DHB) p.4; Applicant’s Outline of Argument, DHB p.17.
[8] Rose v BMD Constructions Pty Ltd[2011] FWA 673; Gill v IFM Services Pty Ltd[2021] FWC 5962.
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