Peter Slade v RAC Insurance Pty Ltd T/A RAC

[2020] FWC 3001

[2020] FWC 3001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Slade
v
RAC Insurance Pty Ltd T/A RAC
(U2020/7106)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 11 JUNE 2020

Application for an unfair dismissal remedy – application filed one day out of time – circumstances not exceptional.

[1] This decision concerns an application by Mr Peter Slade for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Act).

[2] Mr Slade made an application for an unfair dismissal remedy under s.394 of the Act on 22 May 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). It is not in dispute that Mr Slade’s application was filed outside the timeframe for lodgement of the application. Mr Slade seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.

[3] For the reasons set out below, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of the application. The application is dismissed.

Background

[4] Mr Slade commenced employment with the Respondent on 15 November 2016. His employment was terminated with immediate effect on 30 April 2020. 1

[5] Mr Slade’s application for unfair dismissal remedy was received by the Commission on 22 May 2020. It follows that the 21-day statutory timeframe for filing the application expired at midnight on 21 May 2020. The application was filed one day outside of that timeframe.

Statutory framework

[6] The Commission has the power pursuant to s.394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 2In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.

[7] Under s.394(3) of the Act, the Commission may allow a further period of time for an application under s.394 to be made if it 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.

[8] I consider each of these matters below.

Consideration

Reason for the delay

[9] Mr Slade submits that his application was lodged outside the 21-day timeframe on account of the following matters:

(a) Mr Slade calculated the 21-day period as concluding three weeks from the day following the effective date of dismissal. While Mr Slade accepts that his calculation was erroneous, he submits that the average person would calculate the 21-day timeframe as he did.

(b) Mr Slade says that his mental health has deteriorated on account of his employment with the Respondent and following its termination. During the proceedings, Mr Slade explained that his mental health contributed to the delay because it “amplified” the overwhelming nature of the application process.

[10] Mr Slade contends that these matters taken together, and against the backdrop of the COVID-19 pandemic, amount to exceptional circumstances.

[11] The Respondent opposes a grant of an extension of time. It says that the matters relied upon by Mr Slade do not constitute exceptional circumstances. It contends that Mr Slade made an error in calculating the deadline for lodgement of his application, which is insufficient to enliven the Commission’s discretion to extend the timeframe. It observes that Mr Slade led no medical evidence as to the nature of his mental health issues and the impact such issues had on his capacity to lodge the application within time.

[12] The Commission’s website specifies that an unfair dismissal application must be made within 21 days after the dismissal takes effect. Mr Slade gave evidence that he consulted the Commission’s website on or about 4 May 2020. He accepts that on the information provided an unfair dismissal application must be lodged within 21-days after the dismissal takes effect. However, Mr Slade contends that the method for calculating the lodgement deadline is open to interpretation. He says that his approach to calculating the timeframe was reasonable and the application was late by only one day. I do not accept that Mr Slade’s interpretation was reasonable. His evidence is that he had spent two weeks researching the Commission’s website, including “multiple” visits prior to lodgement of the application. However, Mr Slade calculated the timeframe within which he was required to lodge his application by reference to weeks and not days. This is at odds with the guidance material provided by the Commission and accessed by Mr Slade. Further, Mr Slade does not explain how this miscalculation prevented him from lodging his application on an earlier date within the 21-day period.

[13] To the extent that Mr Slade relies upon the condition of his mental health for lodging his application one day out of time, his direct evidence during the proceedings was that the delayed lodgement was not directly occasioned by his mental health. Rather, he found the application process to be overwhelming and this was amplified by his mental health. However, the condition of his mental health did not prevent him from preparing and lodging the application himself.

[14] Mr Slade submitted that his housemate could give evidence of his deteriorating mental health. He also indicated that he could obtain a letter from his treating practitioner or provide a text message exchange with his employer regarding the condition of his mental health. However, I do not consider that this material, had it been produced, would advance Mr Slade’s case in circumstances where, on his own evidence, his mental health did not directly lead to the delayed lodgement.

[15] I am not satisfied that there is a causal link between Mr Slade’s mental health and the delay in lodging the application. Mr Slade’s contention that he found the process for lodging the application overwhelming is not exceptional or indeed uncommon.

[16] I therefore do not find that any of the matters relied upon by Mr Slade as reasons for the delay, individually or collectively, prevented him from lodging the application within time (against the backdrop of the COVID-19 pandemic or otherwise). Whether the application is lodged one day outside the statutory time limit or more, the Commission must be satisfied that there are exceptional circumstances. 3 I do not consider that the reasons advanced to explain the delay constitute exceptional circumstances.

[17] This weighs against the grant of an extension.

Whether the person first became aware of the dismissal after it had taken effect

[18] It is not disputed by Mr Slade that he became aware of his termination on 30 April 2020. Accordingly, Mr Slade had 21 days to lodge his application from this date.

[19] I consider this to weigh against the grant of an extension.

Action taken by the person to dispute the dismissal

[20] Mr Slade contends that upon his dismissal on 30 April 2020, he asked the Respondent about the process for challenging it. He also sought advice from a family member who has experience with this process. The Respondent submits that the Commission should regard this matter as a neutral factor.

[21] However, I do not consider that seeking advice about how to challenge the dismissal equates to a positive action taken to dispute it.

[22] I consider this to weigh against the grant of an extension.

Prejudice to the employer

[23] I do not consider that any prejudice to the Respondent would arise if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the grant of an extension of time.

[24] I consider this to be a neutral consideration.

Merits

[25] There is insufficient material before me to make any detailed assessment as to the merits of the substantive application. Nor should the Commission embark upon such analysis in determining whether to grant an extension of time. 4

[26] The Respondent submits that there was a valid reason for terminating Mr Slade’s employment related to his failure to meet the requisite performance standards. It says that Mr Slade was on a performance improvement plan and was afforded a reasonable opportunity to improve his performance. The Respondent contends that the dismissal was procedurally fair.

[27] Mr Slade disputes that there was a valid reason for his dismissal. He contends that he was targeted for dismissal after raising concerns about the unfair treatment he alleges he was subjected to by his manager. Mr Slade says that his performance was unfairly assessed, thereby making it impossible to meet the requisite performance expectations. Mr Slade submits that his allegations regarding bullying by his manager were not adequately investigated by the Respondent and the termination decision was pre-determined.

[28] Given the factual dispute between the parties, which has not been tested before me, I regard the merits of the case as a neutral consideration.

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

[29] The parties did not raise any circumstances that are relevant to the question of fairness as it relates to Mr Slade or any other person in a similar position.

[30] I consider this to be a neutral consideration.

Conclusion

[31] The test of exceptional circumstances in s.394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time, either when the various circumstances are considered individually or together.

[32] Given this, there is no basis for me to allow an extension of time. Mr Slade’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

P Slade, Applicant.

J Parkinson for the Respondent.

Hearing details:

2020
Melbourne (by telephone):
June 9.

Printed by authority of the Commonwealth Government Printer

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 1   Termination letter dated 30 April 2020

 2 [2011] 203 IR 1

 3   See Cem Ozsoy v Monstamac Industries Pty Ltd[2014] FWC 479, upheld on appeal in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]