Peter Watson v CatholicCare Victoria
[2022] FWC 634
| [2022] FWC 634 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Watson
v
CatholicCare Victoria
(U2022/2140)
| COMMISSIONER CIRKOVIC | MELBOURNE, 23 MARCH 2022 |
Unfair dismissal application filed out of time –circumstances not exceptional – application dismissed
Mr Peter Watson, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with CatholicCare Victoria whom I will refer to as the Respondent.
Before granting a remedy, the Commission must be satisfied that the application was not made out of time.
Having heard the parties, I now proceed to give these reasons for my decision ex tempore.
This published decision reflects the decision I gave ex tempore on 23 March 2022 with corrections for grammatical, syntactical and any other insignificant errors.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
The parties agree, and I so find, that the dismissal took effect on 28 January 2022 and the application was made on 19 February 2022, some 22 after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.
The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:
(a) the reason for the delay;
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 19 February 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 3:17PM on 19 February 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.
As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.
As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.
The Applicant submitted that the delay was for the following reasons:
· The Applicant and his advisor miscalculated the 21-day statutory period and were of the belief that the 21-day deadline for lodging the application was inclusive of Saturday 19 February 2022.
· The Respondent’s delay in responding to his correspondence dated 8 February 2022 led to the application being completed “at the last minute”.
In relation to the reason for the delay, the Respondent submitted that there are no exceptional circumstances that warrant the granting of an extension of time in this matter.
Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on 30 December 2021 and that it took effect on 28 January 2022. The Applicant therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
The Applicant alleges that he took action to dispute the dismissal.
The Applicant submitted that he took the following actions to dispute the dismissal:
· The Applicant’s lawyer sent a letter (via email) to the Respondent on 8 February 2022 putting the Respondent on notice that the Applicant considered that he had been unfairly dismissed and making an offer to settle the dispute between the parties.
· The Applicant requested a response to the correspondence by 15 February 2022.
The Respondent submitted that while the Applicant did take some action to dispute the dismissal by sending the letter above, the Applicant did not lodge the unfair dismissal claim in the three days following the deadline of 15 February 2022 noting that the 21-day statutory timeframe expired at midnight on 19 February 2022. The Respondent also contends that the there was never any evidence of the Respondent contemplating a redundancy payment and the Applicant should not have delayed filing his application on this basis. The Respondent therefore contends that this factor should not weigh in favour of granting an extension of time.
Having regard to the evidence, I find that the Applicant took the following actions to dispute the dismissal:
· Sending the letter of 8 February 2022 to the Respondent.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
The Respondent submits that it would suffer prejudice if an extension of time were granted.
Specifically, the Respondent submits that, if an extension of time were granted, it would suffer the following prejudice:
· The Respondent maintains that the Applicant resigned from his employment and an extension of time would only serve to require the Respondent to prosecute a further jurisdictional hearing in the matter.
· The mere absence of prejudice is an insufficient basis to grant an extension of time.
The Applicant submits that, even if the relevant facts are made out by the Respondent, such prejudice is not material because:
· The one-day delay did not result in any business days being lost to the Respondent in order to prepare for or respond to the matter.
· The Respondent had ample to respond to the letter of 8 February 2022 and therefore, the additional delay caused no prejudice to the Respondent.
Having regard to the submissions above, in all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. I note that the mere absence is an insufficient basis to grant an extension of time.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the parties are in dispute about the nature and process by which the Applicant’s employment was terminated. The Applicant contends that the re-classification and re-structuring of his position resulted in a demotion and lower remuneration which ultimately led to his constructive dismissal. I note that the Applicant submits that I give particular weight to the merits of his case when determining whether to grant an extension of time. The Respondent contends that the Applicant resigned from his employment several weeks after accepting a new role with the Respondent after his previous position was made redundant.
There is an evidentiary contest between the parties as to the Respondent’s assertion that the Applicant resigned. In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm assessment as to this matter. The Applicant has an apparent case, to which the Respondent has an apparent defence. I observe that on the basis of the Applicant’s evidence, he commenced his new role on 12 November 2021 and lodged his unfair dismissal application on 19 February 2022. As such, on the Applicant’s own material, a finding that his employment was constructively terminated is not readily apparent and on the material before me, my preliminary assessment is that the merits weigh slightly against the granting of an extension of time.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
The parties raised the issue of fairness as between the Applicant and other persons in a similar position.
The Applicant submitted that the Commission should take into consideration fairness as between the Applicant and employees “who encountered similar circumstances in the final days and winding up of their multiple years employment tenure would be offered, and receive, appropriate redundancy and or separation entitlements in direct relation to their length of service.”
The Respondent submitted that “other persons in similar positions have on many occasions been refused an extension of time.”
Having regard to the submissions above, in all the circumstances and on the materials provided, I consider the issue of fairness neutral in this matter.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings
As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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. 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.
I am not satisfied that the Applicant has established an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application, or that the matters to which he refers are exceptional.
I note that a reason provided for the delay is that the Applicant and his representative at the time incorrectly calculated the time limit. Miscalculation of the required timeframe to lodge an application is not, without more, an exceptional circumstance.[1]
The Applicant submits that he and his representative collectively miscalculated the time period in this matter. With respect to representative error, the Applicant’s evidence is that:
“Between my advisor and myself we were of the belief that the 21-day deadline for lodging the FWC application was inclusive of the Saturday in question.”
When considering whether exceptional circumstances exist where the reason for delay is an error by the Applicant’s representative, it is relevant to consider whether the Applicant caused or contributed to the representative’s error, whether by act or omission.[2]
As it appears the Applicant and his representative have collectively miscalculated the 21-day statutory period in this matter, I do not consider that representative error was a contributing factor to the delay in filing the Applicant’s unfair dismissal application. Further, the Applicant gave evidence in the hearing that he personally accessed the Commission website prior the lodging of his applicant and to this end I note that the Commission’s website clearly and helpfully advises potential applicants on how to calculate the 21-day statutory timeframe.
Further, the Applicant contends that the Respondent’s delay in responding to his concerns letter of 8 February 2022 contributed to the delayed lodging of his unfair dismissal application. I note again that the Applicant had a further three days after the 15 February 2022 deadline contained in the correspondence to lodge his application before the statutory deadline expired at Midnight on 19 February 2022. I am not satisfied that the Respondent’s lack of response to the letter prevented the Applicant from lodging his unfair dismissal Application in the three days after 15 February, a process which involves completion of a very simple form in any one of a variety of very simple ways.
I have considered the fact that the application was lodged one day late but, in this matter, I am inclined to agree with the comments of Deputy President Gostencnik in Ozsoy v Monstamac Industries Pty Ltd, [2014] FWC 479 where the Deputy President makes the following observation:
“[21] The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional. The absence of an acceptable explanation for the delay weighs against the Applicant in this case.”
Statutory time limits that are applicable to the exercise of a person’s right to bring an
unfair dismissal remedy application are an expression of the Parliament’s intention that rights
should be exercised promptly so as to bring about certainty. Time limits seek to balance the
right to bring an action against the desirability for prompt action and certainty. The reason for
time limits is that parties should be able to know that if there is a question about an action that
has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
Having regard to all of the matters that I am required to take into account under s.394(3), I am not satisfied that the requisite exceptional circumstances exist. There is no credible, acceptable or reasonable explanation for the delay in filing the application. The merits of the case are arguable but weak. Apart from some action taken by Mr Watson to dispute the dismissal, the other factors do not weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed.
COMMISSIONER
Appearances:
Mr Peter Watson (the Applicant)
Mrs Janice Shelmerdine (for the Respondent)
Hearing details:
10:00AM Wednesday 23 March 2022 by Microsoft Teams.
[1] Jalil v BMD Constructions[2014] FWC 9357.
[2] Perry v Rio Tinto Shipping[2016] FWCFB 6963.
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