Richard Kaye v Australian Tourist Park Management Pty Ltd

[2021] FWC 2465

[2021] FWC 2465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Kaye
v
Australian Tourist Park Management Pty Ltd
(U2021/2740)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 4 MAY 2021

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

Introduction

[1] This decision concerns an application by Mr Richard Kaye (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The termination of the Applicant’s employment with Australian Tourist Park Management Pty Ltd T/A NRMA Parks and Resorts (Respondent) took effect on 8 March 2021. The unfair dismissal application was lodged on 1 April 2021.

[3] Section 394(2) 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(3). The period of 21 days ended at midnight on 29 March 2021. The application was therefore filed three days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, 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. 1 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.2

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must 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.

[7] 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 will now consider these matters.

Reasons for the delay

[8] The delay required to be considered in s 394(3)(a) 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. 3 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.4

[9] The Act does not specify what reason for delay might tell in favour of 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. 5

[10] In summary, the Applicant relies on the following reasons for the delay in filing his unfair dismissal application:

•  The Applicant was informed of his dismissal, by telephone, on 8 March 2021. He received a letter confirming the dismissal on 10 March 2021. On the afternoon of 8 March 2021, the Applicant had to leave the accommodation he was being provided by the Respondent as part of his employment. The Applicant did not have anywhere to live. In recognition of this fact, the Respondent paid for the Applicant to stay in a hotel in Woolgoolga for one week after his dismissal, and paid him an ex-gratia payment of two weeks’ pay and $100 cash for fuel. Since leaving the hotel in Woolgoolga, the Applicant has been camping in the least expensive camp sites he can find. Notwithstanding the assistance provided by the Respondent following his dismissal, the Applicant points out that he was homeless after his dismissal and that made it difficult for him to prepare and file his unfair dismissal application. The Applicant also relies on the fact that he was promised by the Respondent to find him permanent accommodation after leaving the hotel in Woolgoolga, but they did not do so and this made things very difficult for him.

•  The Applicant spoke to a lawyer on 19 March 2021 in relation to his dismissal with the Respondent. The lawyer asked the Applicant to send him documents in relation to his dismissal, which the Applicant did in the days following the telephone call on 19 March 2021. One such document the Applicant sent to the lawyer was an email dated 26 March 2021. The Applicant gave evidence that he assumed the lawyer was representing him because the lawyer had asked him to send documents. Although I accept the Applicant’s evidence that he assumed the lawyer was acting for him, I find that the Applicant did not engage the lawyer to act for him in relation to his dismissal. The Applicant accepts that he never received any document from the lawyer stating that the lawyer was acting on his behalf, he was never told by the lawyer that the lawyer was acting on his behalf, he did not receive anything in writing from the lawyer, save for a confirmation of their initial telephone discussion on 19 March 2021, and there is no evidence to suggest that the Applicant was told the lawyer was preparing, or would lodge, an unfair dismissal application on his behalf. The Applicant spoke again to the lawyer on 1 April 2021, after making a number of attempts to contact him, and was told by the lawyer that his prospects of success were not greater than 20%, and the lawyer would not represent the Applicant unless he paid up-front for the legal services. The lawyer also told the Applicant to prepare and lodge the unfair dismissal application himself, which the Applicant did later the same day (1 April 2021).

•  The Applicant was aware of the existence of the 21 day time period within which he had to lodge his unfair dismissal application. The Applicant mistakenly commenced his counting of the 21 day period on 10 March 2021, being the date of the termination letter, rather than 8 March 2021, being the date on which the Applicant was told that he was dismissed. The Applicant also made a mistake in his calculation of when the 21 day period concluded. Even using 10 March 2021 as the starting date, 21 days after that date is 31 March 2021. The Applicant counted the end of the 21 day period as 1 April 2021. That was why he was chasing the lawyer on 1 April 2021.

•  The Applicant gave evidence that he fell into a depressive state following his dismissal. The Applicant spoke to a psychologist through the Respondent’s employee assistance program. The Applicant was also struggling to speak in the week following his dismissal because on 6 March 2021 he was punched so hard in the tooth that his tooth came through his lip. I accept the Applicant’s evidence in relation to these matters.

•  The Applicant says that part of the delay is accounted for by the four days it took for Mr Chris Peereboom, the Respondent’s National Operations Manager, to decide that he would not accept the Applicant’s proposal to resign in lieu of the dismissal letter.

•  The Applicant gave evidence that it took quite a while to get all of his things after his dismissal because he says he was abused by the park manager when he was collecting some of his belongings and he was too scared to go back. He also says he was scared that they would not give him the rest of his belongings if he filed an unfair dismissal case.

•  The Applicant gave oral evidence that part of the reason for his delay was the fact that he had to travel to Queensland following his dismissal for the preparation of a family report in connection with his involvement in proceedings in the Family Court.

[11] Although I have sympathy for the Applicant’s personal circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for delay in filing his unfair dismissal application. The Applicant’s mental health suffered following his dismissal and he faced a range of personal difficulties and challenges in the period after his dismissal. However, these personal difficulties and challenges the Applicant was facing were not so debilitating as to prevent him from making an appointment to speak with a lawyer, speaking to a lawyer about his dismissal, sending documents to the lawyer, and preparing and lodging his unfair dismissal application on the same day (1 April 2021) that the lawyer told him that he would not act for the Applicant. Further, this is not a case where there has been representative error which has caused or contributed to the delay. The Applicant did not engage a lawyer in connection with his dismissal. He assumed he had, but that assumption was mistaken. In all the circumstances, when considered objectively, the Applicant’s explanation for the delay was not acceptable or reasonable.

[12] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 1 April 2021 weighs against a conclusion that there are exceptional circumstances.

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

[13] The Applicant was aware of his dismissal on the day it took effect (8 March 2021). The Applicant therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[14] I consider the Applicant took action to dispute his dismissal by engaging in communications with Mr Peereboom after his dismissal, including as to whether the Respondent would accept the Applicant’s resignation in lieu of its dismissal letter. 6 This factor weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[15] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[16] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[17] In his unfair dismissal application the Applicant gave the following explanation as to why his dismissal was unfair:

“I was never told this weekend in a third-party hotel room would be grounds for dismissal.

There was no theft.

The threats were to keep a bullying manager away from me.

None of the concerns I raised regarding my direct manager he he’s [sic] bullying were addressed or disgust [sic].

The investigation they ran I was not spoken to at all regarding any of the matters.

They just missed [sic] me some early [sic] over the phone without hearing my side of the story.

None of the bullying about working with children certificate was addressed.”

[18] The Respondent relies on admissions made by the Applicant in his text messages to Mr Peereboom on 25 February 2021 to support its contention that the Applicant has poor prospects of succeeding in his unfair dismissal case. I do not need to set out those text messages in this decision; they speak for themselves and concern a range of personal matters.

[19] In all the circumstances, I consider that the Applicant has a weak claim that he was unfairly dismissed. I have read the text messages sent by the Applicant to Mr Peereboom on 25 February 2021. 7 The admissions made by the Applicant in those messages relate to matters of a serious nature. Accordingly, the merits of the Applicant’s claim weigh against his application for an extension of time.

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

[20] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[21] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[22] Although I have sympathy for the Applicant’s personal circumstances, having regard to the matters I am required to take into account under s 394(3) and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Kaye on behalf of himself
Ms Bernasconi, solicitor, on behalf of the respondent

Hearing details:

2021.
Newcastle (by telephone):
29 April.

Printed by authority of the Commonwealth Government Printer

<PR729177>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   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]

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 6   Ex A1

 7   Ex R2