Peter Murphy v MSS Security Pty Limited
[2023] FWC 1070
•9 MAY 2023
| [2023] FWC 1070 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Murphy
v
MSS Security Pty Limited
(U2023/1939)
| DEPUTY PRESIDENT DEAN | CANBERRA, 9 MAY 2023 |
Application for an unfair dismissal remedy – application out of time – no exceptional circumstances – application dismissed.
Mr Peter Murphy has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed by MSS Security Pty Limited (MSS).
MSS objected to the application on the basis that it was made outside the 21-day period prescribed by the Act and that Mr Murphy was not dismissed.
Mr Murphy stated in his application that his dismissal took effect on 22 July 2021. His application was lodged on 9 March 2023, some 595 days after the purported dismissal.
Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The Commission must first consider whether to grant a further period for the application to be made under s 394(3) prior to determining other jurisdictional objections[1].
The application was listed for hearing by telephone on 8 May 2023 to consider the extension of time issue. Mr Murphy appeared and gave evidence on his own behalf. Ms Jessica Fernandes appeared and gave evidence for MSS.
Effective date of dismissal
Mr Murphy’s application for an unfair dismissal remedy recorded his alleged dismissal date as 21 July 2021. However, in providing an explanation as to why his application was filed late, he changed his evidence to assert that the date of his alleged dismissal was the date he lodged his application (ie 9 March 2023). His reasoning for this was that he had not received ‘formal written notification’ of his demotion or dismissal from MSS.
As a result, it is necessary to determine the date the alleged dismissal took effect and whether Mr Murphy’s application for an unfair dismissal remedy was made beyond the 21 day time limit.
Mr Murphy asserts that he was demoted because his Leading Hand title and allowance was removed, and this demotion involved a significant reduction in remuneration such as to be a dismissal within the meaning of s386 of the Act (the alleged dismissal).
The alleged dismissal occurred following an investigation that took place in June 2021, when Mr Murphy was advised by letter dated 5 July 2021 that his roster “would be adjusted” moving forward. He was subsequently provided with a new roster via email on 9 July 2021. His new roster took effect from 22 July 2021.
The effect of this roster change was that he was no longer rostered to work as a Leading Hand and no longer paid a Leading Hand allowance.
Mr Murphy gave evidence that he was not formally notified that he had been demoted or dismissed at the time his roster was changed, and he had made numerous inquiries with his manager and with MSS’ payroll department as to the loss of his Leading Hand role.
In cross examination, Mr Murphy conceded he had a conversation with his new Business Manager in November 2022 in which he requested he be reinstated to his Leading Hand position and receive backpay. He was advised he would not be reinstated to this position or paid any backpay.
Mr Murphy remains employed by MSS as a Security Officer and has continued to work in accordance with the changed roster since July 2021.
Having considered the evidence and submissions, I am satisfied that 22 July 2021 is the appropriate date to be used for the purposes of determining when Mr Murphy’s alleged dismissal took place because this is the date of his roster change and removal of his Leading Hand title and allowance took effect, and it is this change that he asserts was a demotion and a dismissal.
Accordingly, Mr Murphy’s application cannot proceed unless an extension of time is granted.
Extension of time
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.[2] 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.[3]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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 this application.
Reason for the delay
The Act does not specify what reason for the 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.[4]
Mr Murphy said he was “misled, lied to, and ghosted” from the time his roster was changed, which is why he did not make his application earlier. He also asserted his previous Business Manager had undertaken to “rectify the issue” for him, and that the delay in making his application was the fault of MSS because he had made multiple attempts to resolve the issue but MSS continued to either ignore him or refuse to provide him with any formal correspondence confirming the change.
I am not satisfied that this is an acceptable reason for the delay in making an application. Mr Murphy was aware from 22 July 2021 that his roster had been changed, in that he was removed from the Leading Hand roster and not paid a Leading Hand allowance from that time. Further, he conceded he was told, in early November 2022, that he would not be returning to the Leading Hand roster nor would he be receiving any backpay.
His requests of MSS to return him to the Leading Hand position did not prevent him from making an application for an unfair dismissal remedy within the 21 day time limit. Further, even if it were the case that Mr Murphy was unclear about his alleged dismissal from July 2021, there can be no doubt he was aware of the change from 3 November 2022 after his discussion with the new Business Manager. If 3 November 2022 was the relevant dismissal date, Mr Murphy’s application was still some 4 months late, and there is no reasonable explanation for this delay.
The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
As set out earlier, I am satisfied and find that Mr Murphy was aware of the changes to his roster and Leading Hand position from 22 July 2021.
This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
Mr Murphy did, on numerous occasions, engage in communication with his manager and with MSS payroll department to be returned to his Leading Hand role.
There was, however, no suggestion until the filing of this application that Mr Murphy considered this to be a dismissal, as opposed to a dispute about the removal of the Leading Hand title and allowance.
Overall, this weighs against a finding that there are exceptional circumstances.
Prejudice to the employer
I accept the delay is a lengthy one. However, in the absence of any specific evidence as to what prejudice MSS may suffer, I consider this to be a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for Mr Murphy to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.
Mr Murphy and MSS both provided evidence as to what they considered to be the remuneration difference because of the roster change. Mr Murphy provided three ‘models’ showing different calculations as to the loss he says he has suffered. MSS provided a comparison between Mr Murphy’s gross earnings for the six months prior to the roster change and the six months after the roster change, which they contended showed an increase in earnings of $528.10 over that period.
Based on the limited evidence before the Commission, it appears that Mr Murphy’s prospects of proving he was dismissed are not strong.
Overall, this weighs against a finding that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party raised any persons or cases that are relevant to the question of fairness as between Mr Murphy and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Mr Murphy, I am not satisfied that there are exceptional circumstances, 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 is dismissed.
DEPUTY PRESIDENT
Appearances:
P Murphy on his own behalf.
J Fernandes for MSS Security Pty Limited.
Hearing details:
2023.
By telephone:
May 8.
[1] See Herc v Hays Specialist Recruitment (Australia) Pty Ltd[2022] FWCFB 234.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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