Phillip Grech v Task Forklifts
[2023] FWC 588
•14 MARCH 2023
| [2023] FWC 588 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Phillip Grech
v
Task Forklifts
(U2023/1113)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 14 MARCH 2023 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances not found – application dismissed
On 13 February 2023, Mr Grech made an application to the Commission for an unfair dismissal remedy. In his application form he contends that he was unfairly dismissed by the Respondent “around May” 2022.
Section 394(2) of the Fair Work Act 2009 (Cth) (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).
In order for the application to proceed, Mr Grech 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 14 March 2023, at which Mr Grech gave evidence in support of his application. Mr Rainsford attended for the Respondent.
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]
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.
Relevant factors
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.[2]
In this case, the application was lodged on 13 February 2023. The application states that the dismissal took effect “around May”, although in an email subsequently filed pursuant to Directions, the Applicant says that the “final actual dismissal was in March 2022”.[3] In either case, the application was filed at least 10 months later than required by the Act.
Mr Grech’s explanation for the delay in making his application is that he is something of a loner and talks to few people, and so was ignorant about “Fair Work” and the ability to challenge the dismissal; that he initially felt relief (describing his experience as being like leaving a toxic relationship), and he couldn’t focus and was depressed.
I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging his application. Ignorance of the Commission or the 21-day time frame for lodging unfair dismissal applications is not an acceptable explanation and it is not uncommon for employees to experience feelings of depression following dismissal. No evidence was provided in relation to any question of medical capacity to lodge the application.
I am not satisfied that Mr Grech has provided an acceptable explanation for the delay and that is a matter that weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
At the hearing, the Applicant said that he became aware of the dismissal in February or March of 2022, approximately 12 months before making the application. This consideration does not weigh in favour of a finding of exceptional circumstances.
Any action taken by the person to dispute the dismissal
At the hearing the Applicant said that he had taken no action, other than the making of the unfair dismissal application, to dispute the dismissal, and this is a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
The Applicant made no submission about this consideration, and I have treated it as a neutral consideration.
Merits of the application
At this early stage of the application, where the substantial merits of an application are not fully examined or agitated, it is appropriate that I assess the merits based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
The Respondent has raised a number of jurisdictional objections in its response to the application, including that the Applicant was not an employee and was not dismissed.
At the hearing, the Applicant agreed with the Respondent’s contention set out in its Form F3 response to the Application, that he had commenced as a casual employee in September 2017, and on 4 October 2017 he resigned and started a business which contracted to the Respondent. The Applicant acknowledged that the written contract provided by the Respondent[4] was the contract he had entered and worked under. The contract between the Applicant and the Respondent entered on 11 September 2017 expressly provides that it is a contract for the provision of services and establishes the Applicant’s relationship with the Respondent as that of independent contractor and not an employment relationship. The terms of the contract also appear to be consistent with the rights and obligations of such a relationship.
It appears likely that the Applicant was an employee of the Respondent for only a few weeks in 2017 and then commenced a new relationship as an independent contractor. As an independent contractor, the Applicant is not eligible to make an unfair dismissal application.
Even if I was to find that Mr Grech is an employee, he would also need to overcome additional jurisdictional hurdles.
The Respondent submits that Mr Grech last provided his services to Task Forklifts on 14 December 2021 after which point, he was away travelling. On 12 January 2022, the Respondent received a message from the Applicant advising he was back in Melbourne and available to provide services, however he did not complete any of the jobs offered to him. A letter of resignation signed by Mr Grech and dated 24 March 2022 was hand delivered to the Respondent over the weekend of 2 and 3 April 2022.[5] Mr Taylor of the Respondent replied to Mr Grech’s ‘resignation’ registering confusion and suggesting the letter had been sent in error given the Applicant’s services were last provided on 14 December 2021 and were provided as an independent contractor.
In light of the above, I consider the merits of the application to be weak and 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. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this as a neutral consideration in this case.
Conclusion
The Commission can only grant an extension of time if it is satisfied that there are exceptional circumstances. None of the factors I need to consider weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case. As there are no exceptional circumstances, there is no basis to allow additional time for Mr Grech to make his application. This means that Mr Grech 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 Grech, Applicant
B Rainsford for the Respondent.
Hearing details:
2023.
Melbourne (by video):
March 14.
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[3] Email from Mr Grech to Chambers dated 1 March 2023.
[4] Appendix 1 to Form F3.
[5] Appendix 2 to Form F3.
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