Mr Steven Fitzpatrick v Chubb Fire and Security Pty Ltd
[2022] FWC 121
•27 JANUARY 2022
| [2022] FWC 121 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Steven Fitzpatrick
v
Chubb Fire and Security Pty Ltd
(U2021/11498)
| COMMISSIONER JOHNS | MELBOURNE, 27 JANUARY 2022 |
Application for an unfair dismissal remedy - whether to extend time for lodging the application.
Introduction
The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. [1] However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.[2]
This decision is about whether the Commission should allow Steven Fitzpatrick (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 10 December 2021, that being 22 days after his employment was terminated by Chubb Fire and Security Pty Ltd (Respondent) on 18 November 2021 and, consequently, 1 day after the 21 day time limit provided for in the FW Act.
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.[3] 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.[4]
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.
Section 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 the applicant’s favour, however all of the circumstances must be considered.[5]
The Applicant cited several matters as reasons for the delay in lodging the application.[6] The first reason is that the termination of his employment came as a shock to him and it took him some time to process and adjust to being unemployed for the first time in nearly 30 years. The second reason is that the Applicant spoke with Job Watch, Fair Work and the Union and took some time to consider his options. The third reason is that the Applicant thought it would be best to raise his issues directly with his employer before pursuing any action. It was when he received no response from the Respondent that he decided to file his application (albeit late).
In reply, the Respondent submitted that the Applicant wrote to Mr Troy Palin, General Manager of Chubb in Victoria on 7 December 2021, 19 days after the Applicant was dismissed.[7] The Respondent argues that expecting a resolution let alone a response 2 days prior to the filing deadline should not be considered by the Commission as an acceptable reason for the delay. The Respondent further submitted that the Applicant’s letter of 7 December 2021 requested a response by end of business on 10 December 2021, which is one day outside of the 21 day time limit and that therefore the Applicant’s hopes of a resolution prior to the 21 day deadline were not in fact a reason for the delay.
Having become unemployed for the first time in nearly 30 years and after over 17 years of employment with the Respondent, it no doubt came as a shock to the Applicant. However, while I can empathise with the Applicant’s plight there is nothing unusual, special or uncommon about the circumstances that the Applicant found himself in. His feeling of shock he experienced is very commonly experienced by employees in like situations. Also, the Applicant must bear the responsibility for waiting for a reply from the Respondent. Ideally, he should have written to it sooner to afford it more time to reply. In any case when it had not replied before the 21 day time limit, the Applicant should have not waited any longer.
This factor weighs against granting the Applicant a further period to make his application.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of his dismissal on the day that it took effect and, therefore, had the full period of 21 days to lodge the unfair dismissal application.
This factor weighs against an extension of time being provided.
Action taken to dispute the dismissal
As outlined above, the Applicant wrote to his employer disputing the dismissal on 7 December 2021.
As stated above, ideally, the Applicant should have raised the matter with the Respondent sooner. However, in any case, this factor weighs in favour of granting an extension of time.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent 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 the grant of 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.
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.
In the matter of Kornicki v Telstra-Network Technology Group[8] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[9]
The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
The substantive factual contest between the Applicant and the Respondent is whether it was harsh, unjust or unreasonable to terminate the Applicant’s employment in circumstances where he had not complied with a COVID-19 Mandatory Vaccination (Workers) Direction. This is not a dispute that can be resolved at a jurisdictional hearing.
The Respondent points to like decisions of this Commission as contends that the Applicant’s case is weak. However, the facts in the present matter can be distinguished from the facts in those other matters. Matters relevant to s.387(h) may support a finding in favour of the Applicant.
For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.
If the Applicant can establish to the satisfaction of the Commission that there were alternatives open to the Respondent short of dismissal (e.g. a period of leave without pay until the Applicant’s preferred vaccine (Novavax) became available in Australia (I note that it was approved in Australia on 20 January 2022) then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.
Fairness as between the person and other persons in a similar position
The Respondent submitted that there are other recent decisions of the Commission where an extension of time has been refused to employees dismissed because they refused to be vaccinated as required by public health orders.[10]
As I have stated above, it seems to me that those decisions are distinguishable. This is a neutral factor.
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. 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 to this effect [PR737796] has been issued with this decision.
COMMISSIONER
[1] Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
[2] Section 394(3) FW Act.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Ibid.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Applicant’s Submissions dated 13 January 2022 (Exhibit 1), at Court Book p 2.
[7] Respondent’s Submissions dated 21 January 2022 (Exhibit 5), at Court Book p 86.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Ibid.
[10] Ibid, p 87.
Printed by authority of the Commonwealth Government Printer
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