Peter Dolheguy v Endeavour Foundation

[2021] FWC 1472

[2021] FWC 1472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Dolheguy
v
Endeavour Foundation
(U2021/747)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 23 MARCH 2021

Application for an unfair dismissal remedy - application made outside of the time prescribed - whether there are exceptional circumstances - whether discretion to extend should be exercised - extension granted.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 17 March 2021. Mr Peter Dolheguy (Applicant) was employed by Endeavour Foundation (Respondent) until his dismissal, which took effect on 15 December 2020. On 29 January 2021 the Applicant made an application under s.394 of the Fair Work Act 2009 (Act) seeking a remedy in connection with a dismissal he alleges to be unfair.

[2] The application was lodged outside of the time prescribed in s.394(2) of the Act. It is necessary, therefore, to consider whether Mr Dolheguy should be allowed a further period within which he would be permitted to lodge his application.

[3] The Act allows the Commission to extend the period within which an unfair dismissal remedy application may be made, but only if the Commission is first satisfied that there are exceptional circumstances taking into account the various matters that are set out in s.394(3). Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves need not be unique nor unprecedented, nor even very rare.

[4] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually are of no particular significance, when taken together may be considered exceptional. The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion given to the Commission, for example, to extend the period of time for lodging an enterprise agreement found in s.185(3), which is exercisable simply if in all the circumstances the Commission considers that it would be fair to do so.

[5] Section 394 requires the Commission, in assessing whether there are exceptional circumstances, to take into account several factors. These factors are set out in s.394(3) as follows:

“(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.

[6] I am required to take each of these matters into account and to give each appropriate weight having regard to the evidence.

[7] Turning first to the reason for the delay, the period with which we are a concerned is not the period within the allowable 21-day period, but rather we are concerned with an explanation for delay between the expiration of the 21-day period and the date the application was ultimately lodged on 29 January 2021.

[8] Although the Applicant specified two broad explanations for the delay, being the Christmas and New Year holiday period and his illness, during the course of evidence given by the Applicant it became apparent that he suffers from a disability consequent on his muscular dystrophy. One of the consequences of that disability is that the Applicant can neither read nor write and requires assistance in providing written communication and in comprehending written communication.

[9] The evidence establishes that the Applicant was provided with some assistance through an organisation known as DRC Advocacy in the preparation of his application and he was given an incomplete copy of the application by the advocacy service, together with a stamped, self-addressed envelope which the Applicant could thereafter lodge in the Commission. That material appears to have been provided to the Applicant sometime in mid to late December 2020.

[10] As I have indicated, the Applicant's uncontested evidence was that the application was incomplete. Given his inability to read or write, the Applicant plainly required some further assistance to complete the application in order that it might be lodged in the Commission.

[11] The Applicant's uncontested evidence is that he asked his mother's boyfriend for assistance and that his mother's boyfriend was not able to render assistance immediately but eventually did so. That assistance enabled the application to be completed. Thereafter, the Applicant requested his mother post the application to the Commission and the application was, as I indicated, received by the Commission on 29 January 2021.

[12] Some of the period for the delay is obviously ascribed to the postal service, and without being critical, the fact that there was a public holiday during that period, together with the average metropolitan postal delivery occurring about four days after postage, that postage delay period explains some of the delay.

[13] I note also, in light of communications with my chambers about preparations for this hearing, that the Applicant does not have a computer and is not computer literate, which means that the only method by which he could lodge his application would either be attendance in person or by post.

[14] The evidence establishes that attendance in person would be difficult given the Applicant's unfamiliarity with general geography and attendance at places other than places with which he is familiar.

[15] In all the circumstances, I accept that the Applicant required assistance to complete the form, that he sought out assistance, and that once the assistance was rendered, he acted promptly to facilitate the posting of his application to the Commission. He did so in the only practical manner available to him.

[16] I consider the Applicant has provided an acceptable explanation for the whole of the period of the delay. In those circumstances, this consideration weighs in the Applicant's favour.

[17] Turning next to whether the Applicant first became aware of his dismissal after it had taken effect, the Applicant was notified by letter dated 11 December 2020 that his employment would end on 15 December 2020. The Applicant's uncontested evidence was that the letter was given to his brother and his brother was requested to deliver the letter to the Applicant.

[18] The Applicant gave evidence that this might have occurred a day after 15 December 2020. I accept that evidence. It appears therefore that the Applicant was notified of the dismissal, a day after the dismissal purportedly took effect, which as set out in the letter from the Respondent to the Applicant dated 11 December 2020, was 15 December.

[19] That being the case, the fact that the Applicant appears to have been notified of his dismissal a day after it took effect or purported to take effect, particularly in the circumstances of his disability, also weighs in favour of the Applicant.

[20] Next is the consideration whether the Applicant took any action to dispute his dismissal. Apart from lodging the application, there does not appear to be any particular action the Applicant took. That he did not take any action can in part be explained, I consider, by his level of literacy and his disability, and so that although the absence of any action to dispute the dismissal is a factor that weighs against the Applicant, I consider that in the circumstances, it weighs only slightly against him.

[21] As to prejudice to the employer, the Respondent contends that it will suffer prejudice because of the delay between the incident that is the subject of the reason for the dismissal having occurred in 2019 and the application being lodged almost a year and three months after the incident.

[22] Most of the delay, however, appears to have occurred because of the delay in the Respondent being able to investigate the allegations the subject of the reason for the dismissal. The very same factors which are now said to prejudice the Respondent would have pertained at the time that it came to investigate the allegation, which was almost 12 months after the incident. The Respondent rightly accepts that this is so.

[23] In the circumstances, I am not persuaded that the Respondent will suffer any material prejudice if an application to extend time is granted. Consequently, I consider that the absence of prejudice is also a matter that in the circumstances weighs in favour of the Applicant.

[24] Turning then to the merits of the application, I am required to take into account the merits of the application, although, as is plainly the case, these are interlocutory proceedings, and so there is not the opportunity to test the veracity of the merits of the respective positions that the parties will seek to advance at a hearing.

[25] The allegations that are made which form the basis for the dismissal of the Applicant are serious allegations. The Applicant denies the allegations. There has been a police investigation into the allegations, and as at the date of hearing, no charges have been laid.

[26] The Respondent says it conducted an investigation into the allegations and reached its conclusion based on the balance of probabilities. Be that as it may, ultimately in a hearing it will be for the Commission member to determine whether the allegations, which are allegations of conduct, are made out.

[27] If the member is satisfied that the conduct the subject of the allegations occurred, then the conduct alleged will likely provide a valid reason for dismissal. If the Commission is not satisfied that the conduct occurred, then there will be no valid reason, since no other reason is advanced, and those factors are likely to result in the Applicant succeeding in his application for a remedy.

[28] The best that can be said at this stage in relation to the merits is that an allegation has been made, it is denied, and the matter needs to be tested. In these circumstances I am not persuaded that the Applicant's case is clearly without merit and I consider that the question of the assessment of the merits weighs neutrally in these circumstances.

[29] As to fairness between the Applicant and other persons in a similar position, this consideration may relate to matters that are currently before the Commission or to matters that have previously been decided by the Commission. It may also relate to the position of various employees of the employer responding to unfair dismissal applications, but cases of this kind will generally turn on their own facts.

[30] Neither party directed my attention to any relevant matter which would provide a basis for assessing whether there are matters which require consideration of fairness as between the Applicant and other people in similar positions, and I am not aware of any in any case. In those circumstances, this consideration weighs neutrally.

[31] Taking into account the matters I am required to take into account and giving them weight, as I have indicated above, I am persuaded ultimately that there are exceptional circumstances warranting the consideration of the exercise of my discretion.

[32] I consider that the existence of an acceptable explanation for the delay, together with the other matters that weigh in the Applicant's favour, outweigh the one matter that I have identified weighing the other way. Merits and fairness considerations weigh neutrally. I am therefore satisfied that the Applicant has established there are exceptional circumstances.

[33] There are no apparent reasons why I would not exercise my discretion. Consequently, I propose to do so.

Order

[34] I order that the Applicant be allowed a further period within which to lodge his application for an unfair dismissal remedy. That further period will be until 29 January 2020.

DEPUTY PRESIDENT

Appearances:

Ms S Granek on behalf of the Respondent
Ms R Bligh on behalf of the Respondent

Hearing details:

2021
Melbourne and Brisbane (via video link)
17 March

Written submissions:

Applicant, 9 March 2021
Respondent, 9 March 2021

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