Reece Kyle Letcher v AusNet Services

[2022] FWC 369

[2022] FWC 369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Reece Kyle Letcher
v

AusNet Services

(U2022/690)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 22 FEBRUARY 2022

Application for an unfair dismissal remedy – application made out of time – request for an extension of time.

1. Mr Reece Kyle Letcher (the Applicant) was employed by AusNet Services Ltd (AusNet) as an Access Coordinator from October 2016 until he was dismissed on 21 December 2021. On 12 January 2022, Mr Letcher made an application to the Fair Work Commission (the Commission) pursuant to s. 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by AusNet Services.

1. AusNet objects to the application as it was not lodged within the timeframe as required by s. 394(2) of the Act. Section 394(2)(a) of 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(2)(b).

1. The 21-day timeframe expired on 11 January 2021. The application was therefore filed one day out of time. I must therefore consider whether to grant Mr Letcher an extension of time to file, in order for his application to proceed.

1. The matter was listed for a mention/directions hearing at 9:00am on 27 January 2022 and subsequently listed for hearing at 10:00am on 15 February 2022. 

1. Mr Letcher represented himself during the hearing. Mr Letcher presented as an honest witness who did not embellish the circumstances surrounding the delay in filing his application. 

1. AusNet was represented by Mr Daniel Proietto and Ms Jessica Miral of Lander & Rogers. The witness statement of Ms Jayde MacPherson, Senior Human Resource Business Partner, was entered into evidence without the requirement for cross-examination.

2. During the hearing AusNet confirmed that the correct legal name of the Respondent is AusNet Services Ltd (Respondent). I have utilised the discretion in s. 586 of the Act to amend Mr Letcher’s application accordingly.

3. During the hearing, I dismissed Mr Letcher’s application, and informed the parties I would provide reasons for my decision in writing. 

Extension of Time

1. Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission 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.

1. 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 the application and set out my consideration of each matter below.

Reason for the delay

1. Mr Letcher submits he lodged his application out of time largely due to an error in calculating the 21-day time limit. In his submissions, Mr Letcher states he had been prepared to file well before the time limit expired, however wanted to utilise the full extent of the time available to him. Mr Letcher states that when he came to lodge his application with the Commission, he suspected he had miscalculated the timeframe but, noting the public holidays that had taken place during the 21-day period, lodged his application anticipating that further time might be allowed.

1. Mr Letcher further submits that the 21-day time period was a busy and stressful time, due to being dismissed shortly before Christmas, and because he was in the process of moving house.

1. AusNet submits that Mr Letcher has not provided a reasonable explanation for the delay. It further submits Mr Letcher had acknowledged he had prepared his application a week earlier and has failed to provide any other mitigating factors that affected his ability to lodge his application on time.

1. An unfair dismissal application must be lodged with the Commission within 21 days after the dismissal takes effect.[1] The 21 days for lodgement does not include the date that the dismissal took effect. Day one commences the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a public holiday and the Commission’s registry is closed on that day then the timeframe will be extended until the next business day.[2] However, public holidays or weekends that fall during the 21 days will not extend the period for lodgement.

1. Mr Letcher filed his application one day out of time and seeks an extension of time for filing his application because he had miscalculated the date on which the 21st day after his dismissal took effect. It is well-established that ignorance of the statutory time limit does not amount to exceptional circumstances warranting an extension of time.[3] Further, that the miscalculation was made early in the 21-day period and was not revisited by Mr Letcher weighs against granting an extension.[4]

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

1. On 13 December 2021, Mr Letcher received a show cause letter from AusNet, to which Mr Letcher responded on 16 December 2021. Mr Letcher was verbally advised of the termination of his employment during an outcome meeting with AusNet on 21 December 2021, before also being advised in writing that same day. Mr Letcher was advised that the termination was effective immediately and was paid four weeks in lieu of notice of termination.

1. It is uncontentious that Mr Letcher was aware that he had been dismissed on 21 December 2021 and the dismissal had taken effect that same day. Mr Letcher had the full 21 days in which he was capable of making his application. Therefore, this criterion weighs against the granting of an extension of time. 

Any action taken by the person to dispute the dismissal

1. Mr Letcher submits that he disputed the dismissal throughout the dismissal process, but prior to dismissal. Mr Letcher submits that after his dismissal, filing an application for an unfair dismissal remedy was his next option.

1. AusNet submit Mr Letcher made no attempt to internally dispute the termination or seek any assistance to challenge the termination after it took effect until lodging his unfair dismissal application on 12 January 2022. AusNet submit it had received an email from Mr Letcher after the termination took effect on 21 December 2021 in which, among other things, he states that he is seeking legal advice and requested that AusNet keep any records relating to his dismissal for later access.

1. Mr Letcher has not provided evidence of having taken action to dispute the dismissal, other than the present application. This criterion weighs against an extension of time.

Prejudice to the employer (including prejudice caused by the delay)

1. Mr Letcher was unaware as to any prejudice that may arise if the Commission was to grant an extension of time.

1. AusNet submits it would suffer some inconvenience in defending the application if an extension of time was granted. AusNet relies on the general principle that Employers are entitled to operate on the assumption that claims cannot be lodged beyond the lodgement period.[5] It submits that because there are no exceptional circumstances that exist in this case, there is no basis for the Commission to find that the general principle does not apply.

1. AusNet further submits that in light of the weak merits of the application, it will suffer prejudice through wasted resources if the matter proceeds to a substantive hearing. The prejudice relied on by AusNet in this regard cannot reasonably be quantified because the merits of the application are yet to be considered.

1. AusNet acknowledges the application was filed one day late and that it is unlikely suffer any prejudice caused by the delay. 

1. I do not consider that there would be any prejudice to AusNet caused by the short delay in making of Mr Letcher’s application. I consider that prejudice is a neutral factor.

The merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to extend the time limit. At this stage of proceedings, the Commission does not require detailed submissions and evidence that go to the merits of an application. Without having considered evidence on matters that might be contested if the matter proceeds to a substantive hearing, the Commission will usually not be in a position to undertake any detailed consideration or make any findings of fact on those matters. However, when considering the materials before it, the Commission will consider whether there is merit in the substantive claim which may weigh in favour of accepting an explanation for the delay which would otherwise be insufficient. [6]

1. In determining if there is such merit in Mr Letcher’s application, I must consider the reasons for Mr Letcher’s dismissal. The first ground for dismissal provided by AusNet is Mr Letcher’s inability to perform the inherent requirement of his role as an Access Coordinator, because he was unable to attend the workplace. The second ground for dismissal is affected by some confusion. There are inconsistencies between the submissions of AusNet, the evidence of Ms MacPherson, and other communications issued by AusNet which have been entered into evidence. At various points, AusNet refers to Mr Letcher’s failure to comply with a lawful and reasonable direction given his refusal to provide evidence of vaccination or medical exemption. Elsewhere, AusNet refers to a failure to comply with a lawful and reasonable direction in failing to be vaccinated or to have a medical exemption. Whilst the facts of Mr Letcher’s dismissal seem largely uncontested, it is evident that the parties held different views as to whether Mr Letcher’s role could reasonably be performed at home, and whether Mr Letcher was failing to comply with a lawful and reasonable direction, however defined by AusNet. The precise nature of the second ground referred to by AusNet is a necessary consideration in determining whether Mr Letcher’s application is without merit.

1. I have considered the submissions filed and evidence of both parties in this matter. That the Victorian Government’s COVID-19 Mandatory Vaccination (Workers) Directions (the Directions) apply to AusNet and to Mr Letcher’s employment with AusNet appears not to be in contention, however there is insufficient evidence before me to resolve the remaining factual inconsistencies which would need to be determined at a merits hearing. It is not possible to make any firm or detailed assessment of this criterion. Therefore, I consider this criterion to be a neutral factor.

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

1. The Applicant submits that he is aware of two other former employees of the Respondent who have been dismissed for the same reasons. The Applicant does not state whether there are other matters related to his matter presently before the Commission.

1. AusNet submits that in light of recent decisions strictly enforcing the 21-day deadline, it would be manifestly unfair to other persons in a similar position to Mr Letcher if his application was to proceed. 

1. A decision to enforce the 21-day deadline can only be reached by considering each of the criterion in s. 394(3) with the relevant evidence. Neither party brought to my attention any relevant matter concerning this consideration. Therefore, I do not consider this factor relevant to my determination.

Conclusion

1. Granting an extension of time requires that the applicant meet a “high hurdle of exceptional circumstances”.[7] Exceptional in this context has been given its ordinary dictionary meaning, requiring something unusual or extraordinary.[8] I accept that Mr Letcher was stressed and busy, especially being dismissed shortly before Christmas, however those reasons do not, in this instance, establish the unusual or extraordinary circumstance necessary to justify an extension of time.

1. Having regard to the matters I am required to take into account under s. 394(3), and the evidence and submissions of the parties, I am not satisfied that there are exceptional circumstances justifying the grant of an extension of time, either when the circumstances are considered individually or together.

1. Mr Letcher filed his application outside of the 21-day time period required by the Act. I find that Mr Letcher’s circumstances were not exceptional, consequently the application for an extension of time is refused.

1. An order giving effect to this decision will be published concurrently.[9]

COMMISSIONER

Appearances:

R Letcher, Applicant.
J Miral and D Proietto of Lander & Rogers for the respondent.

Hearing details:

2022.
Melbourne:
February 15.

[1] Fair Work Act 2009 (Cth) s 394(2).

[2] [2019] FWC 8489.

[3] [2021] FWC 1375, [51]-[58], [2011] FWAFB 975, [14].

[4] [2021] FWC 1375, [58].

[5] R1, Respondents Submission at [19].

[6] [2022] FWC 207

[7] [2014] FWCFB 2288, [21].

[8] [2010] FWAFB 7251, [5].

[9] PR738585.

Printed by authority of the Commonwealth Government Printer

<PR738584>