Patrick Bugeja v The Trustee for Kenovski Trading Trust T/A Newline Upholstery

[2015] FWC 7649

[2015] FWC 7649

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick Bugeja
v
The Trustee for Kenovski Trading Trust T/A Newline Upholstery
(U2015/13216)

COMMISSIONER RYAN MELBOURNE, 6 NOVEMBER 2015

Application for relief from unfair dismissal - extension of time.

[1] The Applicant was dismissed from his employment on 27 August 2015. The Applicant made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) to the Commission on 29 September 2015.

[2] The Act places a time limit on the making of application for an unfair dismissal remedy. Section 394(2) and (3) are as follows:

“(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(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.”

[3] The application in the present matter was not filed within the 21 day time limit specified by s.394(2)(a). Therefore the application will only be within time if the Commission allows a further period for the making of the application.

[4] As s.394(3) makes clear an extension of time can only be granted if the Commission is satisfied that there are exceptional circumstances present.

[5] What constitutes “exceptional circumstances” was considered by a Full Bench in
Nulty v Blue Star Group P/L: 1:

“[13] 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.”

[6] The Applicant, in support of his application for an extension of time said:

“At the time of my dismissal I had just injured my back at work. I needed some time off as I could not walk.

My doctor gave me3 days off. I took only 2 of those days off as I did not want to inconvenience the boss.

Although I found it very difficult to walk I returned to work and handed over my doctors certificates. When I handed the certificates over to him he got very defensive and told me that I AM NO GOOD TO HIM INJURED.

Later that same day he advised me that he no longer needs me and the following morning I was dismissed from my position and told to take the time to look for another job.

As a result to all of this, I was left very distressed and in a lot of pain. I fell into a state of depression and lost many hours of sleep.

I have now just gotten back on my feet and feel that I am thinking clearly again. As I now look into this further, I not only feel that I have been unfairly dismissed (With the excuse that I did not do enough work and given NO warnings) but I don't think I have been paid fairly as well. I was not given any final pay slips so that I can review my claim either, even though I have asked for them.

It's because of my mental state at the time I was not able to make my claim right away.”

[7] The contentions of the Applicant clearly go to s.394(2)(a). It is not surprising that an employee who has been dismissed will suffer a degree of distress and depression. However Parliament in setting a time limit of 21 days must be accepted as having taken into account the normal impact that a dismissal would have on employees.

[8] In the present matter the Applicant provides no medical evidence in relation to the depression he suffered as a result of the dismissal.

[9] Balancing against the depression suffered by the Applicant is his admission that he immediately found other work after having been dismissed although in a lesser paid job and that he started work in his new employment on the Monday immediately following his dismissal. The Applicant’s ability to work in another job suggests that his level of depression (in the absence of any medical opinion) was insufficient to prevent him from working.

[10] In the present matter there is nothing before the Commission that suggests that the matters identified in s.394(2)(b), (c), (d) or (f) would give rise to an exceptional circumstance warranting an extension of time being granted to the Applicant.

[11] In relation to s.394(2)(e) the Commission is required to take into account the merits of the unfair dismissal application but the caution expressed by a Full Bench in Kyvelos v Champion Socks Pty Ltd, 2 is still relevant:

“..It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application (for an extension of time for the lodgement of an application). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.”

[12] On the material filed in this matter by both the Applicant and the Respondent it appears that the Applicant’s substantive case is not without merit. However it would not appear to be a case which could be described as “highly meritorious”. In Haining v Deputy President Drake et or, 3 Wilcox and Marshall JJ said:

“If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.”

[13] In the present matter, in the absence of evidence as to the merits of the Applicant’s case it must have neutral value in relation to the application for an extension of time.

[14] Having taken into account each of the relevant matters in s.394(3) I am not satisfied that any or all or any combination of them gives rise to exceptional circumstances which would warrant the granting of an extension of time.

[15] The application for an unfair dismissal remedy in this matter was not filed within the time specified by s.394(2)(a) and therefore the application is dismissed.

[16] I note that the Applicant in the material filed with the Commission has raised matters concerning alleged underpayments and has raised matters concerning claimed rights to workers compensation. Any rights or entitlements that the Applicant has in relation to pursuing an underpayment of wages claim or to making claims for compensation for a work related injury are not affected by the dismissal of the unfair dismissal application.

COMMISSIONER

 1   [2011] FWAFB 975 at para 13.

 2   Print T2421.

 3 [1998] FCA 1168.

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