Peter Dimaris v iSecure Protect Pty Ltd
[2019] FWC 3668
•28 MAY 2019
| [2019] FWC 3668 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Dimaris
v
iSecure Protect Pty Ltd
(U2019/1992)
DEPUTY PRESIDENT DEAN | SYDNEY, 28 MAY 2019 |
Application for an unfair dismissal remedy – extension of time
[1] Mr Peter Dimaris was employed by iSecure Project Pty Ltd (iSecure) until 10 January 2019.
[2] On 25 February 2019, Mr Dimaris made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he had been unfairly dismissed by iSecure. His application was made 25 days outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted.
[3] The matter was listed for hearing by telephone on 20 May 2019 to determine whether Mr Dimaris should be granted an extension of time to make his application. At the hearing, Mr Dimaris was represented by Mr J Jordan and Isecure by Mr G Anton. Both parties were granted permission pursuant to s.596 of the Act to be represented by lawyers.
[4] Section 394(3) of the Act provides:
(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.
[5] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if the Commission is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances rests with the applicant.
[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:
“[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.”
[7] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as to be reasonably regarded as exceptional.2
[8] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[9] 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.3 Mr Dimaris’ application was due to be filed on or by 31 January, and so the delay in this case was 25 days.
[10] Mr Dimaris relies on his medical condition as the reason for the delay. It was submitted that Mr Dimaris was suffering from severe mental health issues, including anxiety and depression as a result of the dismissal.
[11] In support of his submission, Mr Dimaris provided an undated letter from Dr Tsingos of South Junior Medical Centre (the Medical Letter). The Medical Letter stated Mr Dimaris has been suffering symptoms including insomnia, somnolence, avoidance of all social contact, poor self-esteem, lack of motivation and enthusiasm, feelings of failure in all aspects of life and loss of appetite.
[12] I accept Mr Dimaris’ evidence that he suffered from a mental health condition that may have prevented him from lodging his application within time. However I am not satisfied that there is evidence to support a finding that his medical condition prevented him from making the application until 25 February 2019 for the following reasons:
a. The Medical Letter is undated and does not disclose the time period between which Mr Dimaris was said to be unable to function normally.
b. The observations made by Dr Tsingos in relation to Mr Dimaris’ medical condition appear to rely primarily on Mr Dimaris’ own description as to his condition during that period.
c. Mr Dimaris gave oral evidence that he started taking Prozac at the end of January 2019. It was the end of January, he said, that he began feeling better and began thinking about his dismissal, however he did not properly explain why it subsequently took him until 25 February 2019 to lodge his application.
d. Mr Dimaris gave oral evidence that he had seen a psychiatrist named Professor Lin after his dismissal, however no report was provided by the psychiatrist that supported his submissions.
[13] I am not satisfied that there is a credible explanation for the time period between early February, shortly after Mr Dimaris began taking medication, and 25 February 2019, which would support a finding that there are exceptional circumstances.
[14] Accordingly, I find that Mr Dimaris’ reason for the delay in lodging this application weighs marginally against the granting of an extension of time. Had he taken action promptly in early February when he had begun feeling better, I would likely have come to a different conclusion as to this criterion.
Whether the person first became aware of the dismissal after it had taken effect
[15] There is no dispute that Mr Dimaris was aware of his dismissal on 10 January 2019. I find that this weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
[16] Mr Dimaris did not take any action to dispute his dismissal until this application was lodged. This weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[17] I am not persuaded that granting an extension of time would result in a prejudice to iSecure. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I find this to be a neutral consideration.
The merits of the application
[18] For the purpose of determining whether to grant an extension of time for Mr Dimaris to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’4
[19] The parties both made submissions as to the merits or otherwise of the application. It was clear that should the matter proceed, the factual circumstances would be heavily contested.
[20] On the evidence before me, I am unable to make a final determination of the merits. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[21] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm5 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’6
[22] I do not consider that there are other relevant persons in a similar position to Mr Dimaris. I therefore find this to be a neutral consideration.
Conclusion
[23] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor needs to be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[24] In Stogiannidis and Victorian Frozen Foods 7, the Full Bench said:
[39] “….each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each”.
[25] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an extension of time to Mr Dimaris. That is, there is no one factor or combination of factors which support a finding that Mr Dimaris’ circumstances were exceptional. On this basis, the application is dismissed.
[26] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
J Jordan, for Peter Dimaris.
G Anton, for iSecure Project Pty Ltd.
Hearing details:
2019.
Sydney, by telephone:
May 20.
Printed by authority of the Commonwealth Government Printer
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1 [2011] FWAFB 975.
2 Also see Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26]; Hasim v Attorney-General of the Commonwealth [2013] FCA 1433 at [65].
3 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
4 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
5 [2015] FWC 8885.
6 Ibid at [29].
7 [2018] FWCFB 901.
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