Mr Ty Owen Murnain v Link Business Services Pty Ltd T/A Link Group

[2020] FWC 4533

[2020] FWC 4533

FAIR WORK COMMISSION

EX-TEMPORE DECISION

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

Mr Ty Owen Murnain
v
Link Business Services Pty Ltd T/A Link Group
(U2020/9490)

DEPUTY PRESIDENT BULL SYDNEY, 28 AUGUST 2020

Application for an unfair dismissal remedy – application made outside the prescribed 21 days – whether exceptional circumstances – extension of time denied – application dismissed.

[1] This matter was heard before me on 18 August 2020, and later on the same day I delivered my decision on transcript. 1 As advised at the time, a published decision would issue; this is now the published version of the decision, edited for style and clarity.2

[2] In this matter, Mr Ty Murnain, has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). That application was lodged on 12 July 2020.

[3] Mr Murnain commenced employment with Link Business Services Pty Ltd on 18 January 2018 and was employed in the position of Customer Services Officer.

[4] Mr Murnain has stated in his Form F2 application that he was notified of his dismissal on 18 June 2020 and that his dismissal took effect on the same day. It is noted that a later document of the employer signed by Mr Berry, the HR Business Partner, states that the applicant's employment concluded on 19 June 2020. However, there is no real dispute that the 18th June 2020 was the day of the dismissal.

Application filed outside the statutory timeframe

[5] The Act requires unfair dismissal applications to be filed within 21 days of a dismissal taking effect. Section 394(2) of the Act states as follows:

“Application for unfair dismissal remedy

[…]

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Fair Work Commission allows under subsection (3).

[6] Calculating 21 days from the date of the dismissal (18 June 2020), the applicant had until 9 July 2020 to file his application which was not filed until 12 July 2020 and, therefore, three days outside the prescribed period.

[7] The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[8] The applicant has made an application for the Commission to extend the time for filing his application. In addition to his application, Mr Murnain has forwarded to the Commission emails dated 27 July and 14 August 2020 elaborating on his reasons for seeking an extension of time in which to file his application.

[9] The employer opposes the extension of time application and relies on the Form F3 it has filed. Nothing further has been filed by the employer.

Ability to extend time for filing

[10] In respect to the Commission's ability to extend time for filing, sub-s.394(3) of the Act sets out the circumstances that provide for the Commission to grant an extension of time for an applicant to file their unfair dismissal claim.

[11] Section 394(3) of the Act is in the following terms:

“(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.”

(My underline)

[12] Each of these matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. Individual matters might not, viewed in isolation, be particularly significant, so it is necessary to also consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 3

[13] A Full Bench of this Commission in Lombardo v Commonwealth of Australia 4 described the Commission's decision-making process under s.394(3) of the Act as follows:

“The test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances.”

[14] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 5 (Nulty) where the Full Bench stated:

“In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[15] As can be seen, 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 or unprecedented, nor do they need to be very rare. The Commission must be satisfied that taking into account all these factors, there are exceptional circumstances.

Reason for delay

[16] In considering the matters that the Commission must take into account, the first issue to be addressed is the reason for the delay.

[17] Mr Murnain provided reasons as to why his application should be accepted outside the prescribed period, although some of these go to his claim that the dismissal was unfair. Relevantly, Mr Murnain states that he:

•  misread the Commission's website and was of the understanding that the 21 days referred to business days.

•  was self-isolating at the time of his dismissal due to a pending COVID-19 test and focusing on his health and he was immune-compromised, as well as struggling with being dismissed, which was affecting his mental health.

•  had previously contacted the Fair Work Ombudsman and sought legal advice regarding actions taken by the employer.

[18] Mr Murnain provided evidence of attendance as an outpatient on 17 June 2020, being the day before his dismissal, for the purposes of a COVID test. However, no medical evidence was provided as to his inability to file his application within the prescribed time.

[19] While I accept that the applicant may have been struggling with his dismissal during some or all of the period of the delay, including the 21-days prescribed, there is no medical evidence detailing the impact this may have had on his incapacity to file his claim with the 21-day period. It appears more likely that, as he states, he believed he had a longer period to file by reading the 21 days as 21 business days.

[20] A misunderstanding or lack of understanding as to the specific legislative requirement is not normally a factor considered in finding that exceptional circumstances exist for the Commission to exercise its discretion and allow for a further period in which the application can be made. As the Full Bench also stated in the decision of Nulty:

“mere ignorance of the statutory time limit is not an exceptional circumstance; indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of exceptional circumstances. In doing so, the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not of itself an exceptional circumstance.”

[21] On what has been put by Mr Murnain, I am not satisfied that he has provided an explanation for the delay that is a consideration in establishing exceptional circumstances.

Whether applicant first became aware of the dismissal after the date it took effect

[22] In respect to whether Mr Murnain first became aware of the dismissal after the date it took effect, it is clear that he was notified of his dismissal on the same day that it took effect and therefore he had the full period of 21 days to lodge his unfair dismissal application.

Action taken to dispute the termination

[23] In respect to disputing his application, other than seeking his own advice, Mr Murnain does not appear to have put the employer, at least, on notice prior to filing his unfair dismissal application that he disputed his termination.

Prejudice to the employer

[24] Turning to the question of prejudice to the employer, it was not submitted by the employer that the granting of a further period in which to file the application would result in any prejudice to itself and I find that there would be no prejudice to the employer in granting the application.

Merits of the application

[25] As to the merits of the application, Mr Murnain has put forward a number of assertions as to why his dismissal should be considered unfair, including that he was discriminated on medical grounds, not treated consistently in comparison to other employees in similar circumstances and that he was targeted for dismissal as he took up too much time with his medical requirements.

[26] The reason given by the respondent for the decision to terminate the applicant's employment was provided in its Form F3 filed as being based on multiple and continued instances of lateness to the start of shifts without adequate or legitimate reasons. These instances were said to have been consistently raised with Mr Murnain during 2020, including being advised of potential dismissal if the conduct continued.

[27] Both parties made further statements on the merits during the telephone hearing this morning.

[28] The merits of the application turn on contested points of fact which would need to be tested at a hearing if an extension of time were granted and the matter were to proceed. It is therefore difficult to make any firm or detailed assessment of the merits at this early stage. In this case, there would appear prima facie, to be reasonable arguments put by both parties as to the merits of the application in respect of whether the dismissal was unfair or whether there was a justified dismissal. As such, this is a neutral factor in considering whether exceptional circumstances exist in this case.

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

[29] As to fairness between the applicant and other persons in a similar position, neither party addressed this factor. The Commission is not aware of any persons or cases that are relevant to the question of fairness between Mr Murnain and other persons in a similar position. I consider this also to be a neutral consideration in the present matter.

Conclusion

[30] It is noted that the statutory time limit applicable to the exercise of an employee's right to bring an unfair dismissal application is an expression of parliament's intention that this right should be exercised promptly so as to bring about certainty. The time limit seeks to balance the right to bring an action against the desirability of prompt action and certainty. The reason for the time limit is that parties should be able to know that if there is a question about a dismissal, the right to question that action will be exercised promptly and unless exceptional circumstances exist, the right to bring that action will be lost.

[31] All the factors outlined in s.394(3) of the Act, which I have now gone through, must be considered when deciding whether or not exceptional circumstances have been established to warrant the exercise of the Commission's discretion to extend the time for the filing of an out of time unfair dismissal application.

[32] I have considered all of the matters which the Commission is required to take into account and, while acknowledging that the delay is not great, I am not satisfied that there exist any factors in isolation or in combination that justify a finding of exceptional circumstances which would warrant the Commission granting an extension of three days to the statutory time limit for the lodgement of Mr Murnain's unfair dismissal application.

[33] The circumstances as disclosed by the material and submissions advanced by Mr Murnain are not ‘out of the ordinary course, unusual, special or uncommon’ and, therefore, there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for filing the application.

[34] I decline to grant an extension of time under s.394(3) of the Act and the application for an unfair dismissal remedy must therefore be dismissed as having been filed outside the prescribed legislative period.

DEPUTY PRESIDENT

Appearances:

T OwenMurnain on his own behalf
M Berry, HR Business Partner and D Lekoski HR Advisor for Link Business Services Pty Ltd

Hearing details:

Sydney by Telephone

2020
18 August

Printed by authority of the Commonwealth Government Printer

<PR722185>

 1   It is noted that the Decision was handed down by telephone due to the Fair Work Commission’s COVID-19 social distancing requirements, with both parties in attendance by telephone for the duration of the delivery of the Decision

 2   See extra curial publication (1997) 9 Judicial Officers’ Bulletin, per Gleeson CJ at 25

 3   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 4   [2014] FWCFB 2288 at [21]

 5   [2011] FWAFB 975 at [13]