Peter Thomas Curtis v Barwon Timber & Hardware Pty Ltd
[2024] FWC 646
•13 MARCH 2024
| [2024] FWC 646 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Thomas Curtis
v
Barwon Timber & Hardware Pty Ltd
(U2024/1473)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 13 MARCH 2024 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances found – application dismissed.
Introduction – 80 days late
On 12 February 2024, Mr Curtis made an application to the Commission for an unfair dismissal remedy. He contends that he was unfairly dismissed from his role as Account Manager by the Respondent on 3 November 2023, effective immediately.
Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) states 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 Respondent has raised two jurisdictional objections to the application: that the application is out of time and that the Applicant was not dismissed. This decision deals with the first objection. I will assume for that purpose, that Mr Curtis was dismissed, as he contends, on 3 November 2023.
On that basis, Mr Curtis’ application was filed 80 days after the expiry of the 21-day period at midnight on 24 November 2023.
For the application to proceed, Mr Curtis requires the Commission grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a hearing on 6 March 2024, at which the Applicant gave evidence in support of his application.
For the reasons below, I have concluded that there are no exceptional circumstances warranting additional time being provided for the Applicant to make the application.
Extension of time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay,
· whether the person first became aware of the dismissal after it had taken effect,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.
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]
Relevant factors
What was the reason for delay
The Act does not specify what reason for delay might justify 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]
The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[5] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.[6]
The Applicant submits that he was dismissed on 3 November 2023 during a meeting with the Respondent’s Sales and Marketing Manager, Mr Curnow. According to the Applicant, Mr Curnow raised performance issues with him following a downturn in his sales figures for the month of October, and attendance and arrangements for meetings with Mr Curnow. His evidence is that during the meeting Mr Curnow said “I am not going to sack you but I want you to leave the company now and get another job.” Mr Curtis took this to mean that his employment had been terminated.
The Applicant’s explanation for the delay is that he was in a state of shock and was stressed and found it hard to understand why he had been dismissed. His mental health took “a big downturn” in circumstances where he had already had some mental health problems leading up to this and from previous years. There was no detailed evidence concerning his mental health and his capacity to make an application.
Mr Curtis explained that he had never been through an unfair dismissal claim or anything like that, and so for the first two or three weeks after the meeting he “bumbled around and didn’t achieve much at all”. Mr Curtis said that he “didn’t know how the process worked” and that “eventually [he] put in a work care claim because that’s what [he] thought that [he] needed to do” and “eventually [he] decided that [he] probably should have put in an unfair dismissal claim right from day one, but because of the state [he] was in …. it took [him] time when [he] eventually got in touch with Gorval Lynch”.[7]
The evidence concerning the engagement of his lawyer is somewhat unclear. Mr Curtis states that he first made contact with the firm on 24 November (the last day of the 21-day period). However, it is not clear what that first contact involved or if and/or when Mr Curtis instructed his lawyer to file an unfair dismissal claim. No evidence from his lawyer was called. When asked, Mr Curtis’ evidence was that he did not give instructions on that day to make an unfair dismissal claim on his behalf, but that he “went back and forward to them”. A week or so later he paid $2,000 to the firm and was told that his lawyers would send a letter to the company on his behalf. Correspondence was sent to the Respondent by his legal representative on 18 December 2023.
Representative error may, depending on the circumstances, provide an acceptable reason for a delay in making an application. However, the conduct of the Applicant is a central consideration. In this case, there is no evidence if and/or when Mr Curtis instructed his legal representative to make an unfair dismissal application on his behalf. Viewing the evidence at its most favourable to Mr Curtis, he engaged Gorval Lynch on the final day of the 21-day period within which to make an unfair dismissal application. Even if Mr Curtis had instructed his lawyers to file an application on that day, he was not entitled to sit and wait passively but was obliged to actively pursue his representative to ensure the application was filed. The evidence does not establish that Mr Curtis did so.
In circumstances where Mr Curtis did not seek legal assistance until the last day of the 21-day time period, and in the absence of any evidence that he instructed his legal representative to make an unfair dismissal application on his behalf, I am not persuaded that there is an acceptable reason for delay.
The principal reason for the delay was the shock and distress the Applicant experienced following the meeting on 3 November 2023. However, this is not an uncommon reaction to an employee being dismissed and is not a basis for finding exceptional circumstances. It appears at this point, the Applicant was unaware of the 21-day time limit in which to make an application, however, no reasonable explanation has been provided as to why the Applicant was unable to make enquiries, seek information or advice at a much earlier date. I am also not persuaded that the delay was caused by representative error.
Having considered the evidence and submissions of Mr Curtis, I am not satisfied that an acceptable explanation for the delay in lodging his application has been provided. The absence of an acceptable or reasonable explanation for the delay in lodging the application weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
If the Applicant was dismissed on 3 November 2023, as he contends, he had the benefit of the full 21-day period within which to lodge the application. It is not as though he discovered that his employment had ended after it took effect. The fact that he had the full period available to him to lodge his application is a factor that also weighs against a conclusion that there are exceptional circumstances.
Whether applicant took action to dispute the dismissal
If an applicant disputes a dismissal with his or her employer before lodging the application and after the dismissal takes effect, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal. In such circumstances, the fact that there was notice of such a dispute is a matter which would weigh in the applicant’s favour, even though the application was lodged out of time.
Through the correspondence sent by his legal representative on or around 18 December 2023 (although to the wrong email address, and so possibly not received until 23 January 2024), Mr Curtis did dispute his alleged dismissal. One letter alleged the Applicant had been constructively dismissed on 3 November 2023, other correspondence of that date indicated that the employment relationship remained on foot. In the circumstances, I consider that this weighs slightly in favour of a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
There is no evidence of any particular prejudice to the Respondent. I have treated this as a neutral consideration.
Merits of the application
The merits of the application are a relevant consideration in determining whether there are exceptional circumstances and whether it is appropriate to exercise the discretion to extend the timeframe. For example, a highly meritorious claim may persuade the Commissioner to accept an explanation for delay that would otherwise have been insufficient.
Before the merits of Mr Curtis’ application can be considered, the Respondent’s second jurisdictional objection will also need to be determined in his favour. The Respondent maintains that it has not dismissed the Applicant. According to the correspondence to the Applicant’s representative from the MGA, Mr Curnow denies saying to the Applicant on 3 November 2023 that: “I am not going to sack you but I want you to leave the company now and get another job.”[8] Mr Curtis’ is adamant that he did. However, even if Mr Curtis is right, I do not consider that such a statement by Mr Curnow amounts to dismissing the Applicant. Instead, it suggests that Mr Curnow wanted Mr Curtis to choose to leave voluntarily.
Further, actions subsequent to the alleged dismissal on 3 November 2023 are entirely inconsistent with the Applicant having been dismissed.
Immediately after the 3 November meeting, the Applicant took some personal leave and made a worker’s compensation claim, which was rejected. He did not return to work after 3 November 2023. Taking personal leave is not consistent with his evidence that he believed that his employment had been terminated and was no longer employed. If he had been dismissed on 3 November 2023, there was also no basis to provide, as he did, medical certificates on 9 November, 23 November, 18 December 2023 and 19 January 2024 stating that he had no capacity to work from 9 November 2023 to 16 February 2024. It is also not contested that the Applicant was paid annual leave entitlements from 7 November to 29 November 2023 and from 7 to 8 December 2023; and was paid personal leave on 6, 11 and 12 December 2023. Mr Curtis contends that these were just his entitlements, however, any such accrued entitlements would have been paid out on termination, not more than a month later.
Further, despite the delay in the Respondent receiving the correspondence from Gorval Lynch on 9 February 2024 (three days before the unfair dismissal application was made), the Respondent’s representative, Master Grocers Australia Ltd, advised that Mr Curnow denied the statement he was alleged to have made on 3 November 2023, did not offer the Applicant to resign, unequivocally stated it had not, and had never intended to, terminate the Applicant’s employment, that the Applicant is still currently employed with the Respondent, and the Respondent awaited the Applicant’s return to work once he had capacity to do so.
In these circumstances, on the basis of the limited material before the Commission at this time, I consider that the Applicant has a very weak basis to claim that he was dismissed by the Respondent on 3 November 2023.
In the circumstances, I consider that this weighs against a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
This consideration concerns consistency with other relevant cases to ensure fairness between the applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Mr Curtis’ claim. However, cases will generally turn on their own facts.
I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
Having regard to the matters I am required to take into account under s.394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when considered individually or together. Having regard to all the evidence, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
As there are no exceptional circumstances, no additional time can be allowed for Mr Curtis to make his application. This means that he is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
P Curtis, the Applicant, appearing on his own behalf.
J Ryan of Counsel, appearing on behalf of the Respondent.
Hearing details:
2024
March 6
Video Hearing.
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].
[7] Gorval Lynch is the legal firm that the Applicant engaged to represent him.
[8] Form F3, Annexure A.
Printed by authority of the Commonwealth Government Printer
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