Richie George v Winthrop Australia

[2022] FWC 1490

[2022] FWC 1490

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Richie George
v

Winthrop Australia

(U2022/4353)

COMMISSIONER SCHNEIDER PERTH, 15 JUNE 2022

Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed

1. Mr Richie George (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent in this matter is Winthrop Australia (the Respondent).

1. The Applicant was notified of his dismissal by the Respondent on 23 February 2022. The termination came into effect on 3 March 2022. This application was subsequently made on 13 April 2022, more than 21 days after the alleged dismissal.

1. Pursuant to section 394(2) of the Act, an application for an unfair dismissal remedy must be made within 21 days after the alleged dismissal or within such further period as the Commission allows.

1. The Respondent objects to the application on the grounds that it was made out of time.

1. Before considering the merits of the application, the Commission must first determine whether to grant an extension of time.

Relevant law

1. Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:

“394      Application for unfair dismissal remedy

(1)      A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…

(2)      The application must be made:

(a)      within 21 days after the dismissal took effect; or

(b)      within such further period as the FWC allows under subsection (3)…”

1. Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.

1. Section 394(3) of the Act lists the considerations the Commission must take into account:

“394      Application for unfair dismissal remedy

….

(3)      The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)      the reason for the delay; and

(b)      whether the person first became aware of the dismissal after it had taken effect; and

(c)      any action taken by the person to dispute the dismissal; and

(d)      prejudice to the employer (including prejudice caused by the delay); and

(e)      the merits of the application; and

(f)       fairness as between the person and other persons in a similar position.”

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. 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]

1. The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[3]

1. This decision contemplates the relevant considerations in section 394(3) of the Act in the circumstances of the current application.

Submissions

1. The Applicant was directed to file submissions regarding the out of time issue by 23 May 2022. The Applicant did not file any material as directed. The Applicant was contacted by my chambers on 24 May 2022 and provided with an additional opportunity to provide further submissions in support of granting the extension. On 25 May 2022, The Applicant confirmed he would not be filing any additional material and instead relied upon information provided in the F2 Application Form and an email to Vice President Catanzariti’s chambers on 6 May 2022.

1. The Respondent filed submissions in relation to the out of time issue on 27 May 2022.

1. After considering the views of the Applicant and the Respondent, the lack of substantial written materials, and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing of the matter.[4] The hearing was held on 7 June 2022, neither party called witnesses.

Applicant

1. The Applicant provided the reason for delay in the Form F2 Application and the email to the Vice President’s Chambers. The Applicant’s reasons centre around difficulty obtaining legal advice and stress induced by the rental crisis and his recent unemployment.

1. In the F2 Application Form, in relation to obtaining legal advice, the Applicant explained the following:

“unsure how to file this document and spent considerable time trying to get legal advice but most lawyers are hesitant to advise on this. I am awaiting legal advice on another related issue and had hoped this would come before the 21 day deadline passed. I have now found some help from others going through this and hope the Fair Work Commission doesn’t stop my claim just because I haven’t been able to get legal advice for the unfair dismissal.”

1. After being directed to address the out of time issue and offer reasons for the delay, the Applicant provided the following by email to the Vice President’s chambers:
   
   

   “why I consider my circumstances as exceptional… At the time of my submission I was under extreme stress having been evicted from the rental property I was leasing…”

“During this time we were both unemployed so were forced to live with family and friends.”

1. The Applicant goes on to explain that being the sole provider for his household, having just become unemployed, and facing an insecure housing situation created significant stress.

1. The Applicant did not provide any documentary, or other, evidence in support of these reasons. I am not making any negative judgement, nor inferring suspicion at the Applicant’s submissions, for the reason for his delay. However, the Applicant simply did not provide any supporting evidence in support of his submissions that could be factored into consideration, despite being afforded several opportunities to do so.

1. At the Hearing, the Applicant confirmed that he relied on the two reasons outlined above. The Applicant further explained the difficulty of his housing situation and difficulty with obtaining advice to ensure his application was sound.

Respondent

1. The Respondent’s submissions in response to Applicant’s reasons for delay, outlined above, were limited.

1. The Respondent provided a brief timeline and emails from a period between January 2022 and March 2022, leading up to the Applicant’s dismissal. The timeline outlined the Respondent’s belief that the Applicant was non-responsive to communication. It appears the Respondent’s intent in including this information was to demonstrate that the Applicant was not diligent in responding to emails or other such deadlines.

1. At the Hearing, the Respondent further relied on the materials it submitted.

1. The Respondent offered no further evidence or submissions regarding the out of time issue or directly in response to the Applicant’s two reasons.

Consideration

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 24 March 2022.[5] The delay is the period commencing immediately after that time until 13 April 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[6]

1. 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.[7]

1. As outline above, the Applicant relied on two primary reasons for the delay in filing. First being a difficulty obtaining legal advice, and second being the stress caused by, and overall experience of, his insecure housing situation which was exacerbated by his recent unemployment.

1. The Applicant’s statement in the F2 Application Form does not amount to representative error. The Applicant’s assertion merely reflects he encountered issues obtaining legal advice.

1. In Nicole Twomey v CVGT Australia Ltd (Twomey) the Commission considered similar reasons for delay as those put forward by the Applicant in this current matter.[8] The applicant in Twomey argued she faced difficulty obtaining legal advice prior to the lodgment of her application, asserting she was given misleading advice when her matter was not taken on by the representative she first approached. The Commission observed the following in response:

“Mr Alkan’s decision not to take Ms Twomey’s case did not prevent her from lodging an application. She could have sought, and indeed very belatedly did seek, a second opinion. Further, it is not the case that Ms Twomey lodged her application as soon as possible after obtaining the second opinion on 26 July 2021.”

1. Mr George had the information regarding the time limit available to him on the application form and did not lodge his application in time. Wishing to obtain advice prior to taking legal action following the termination of one’s employment is responsible and not uncommon but is not required for lodgment of an unfair dismissal claim in the Commission. The Applicant was not barred from lodging his application while awaiting the legal advice. The Applicant instead chose to wait until quite sometime after the 21 days to lodge the application while, by his admission, still awaiting the advice that he delayed lodgment for.[9]

1. Suffering from stress, induced by financial pressures, following a dismissal is, unfortunately, a common occurrence. In this matter the Applicant specifically cited the issue of stress caused by rental and housing insecurity. This reason for delay has been considered by the Commission on numerous occasions.

1. For example, in Elissa Louise Massey v Centrecare,[10] in considering the applicant’s difficulty paying rent as a reason for delay, the Commission observed:

“Regrettably disruption to people’s accommodation and financial stress is not an uncommon consequence of unemployment and these are not exceptional circumstance. The occurrence of public holidays is also not an exceptional circumstance.”[11]

1. Similarly, in Twomey the Commission observed the following in relation to the applicant relying on housing insecurity issues as a reason for delay:

“Ms Twomey contended that she was prevented from lodging her application by significant personal circumstances, which, aside from her mental illness, included her having responsibilities for a young child and being forced out of her rental accommodation in February 2021 because she could not pay the rent. She was subsequently preoccupied with finding a place to live. These were difficult circumstances however I am not persuaded that they prevented Ms Twomey from lodging her application. Again, Ms Twomey was able to seek professional advice soon after her dismissal and to attend to her day-to-day personal affairs.”[12]

1. On the Applicant’s submissions, and in the absence of any contrary evidence, I believe Applicant is genuine in the difficulties that he and his family have endured following the termination of his employment. However, I do note that the Applicant, by his own admission in the F2 Application Form, was aware of the 21-day time limit.

1. Whilst many, including myself, would be sympathetic to the hardships and difficulties faced by the Applicant following his termination, these kinds of situations following the termination of one’s employment are not uncommon. The Applicant’s reasons for delay are understandably difficult circumstances to endure.

1. The Applicant’s inability to provide evidence in support of the reasons for delay in making the application must also be considered.

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

1. It is not in dispute that the Applicant was notified of the dismissal on 23 February 2022 prior to its effect on 3 March 2022. The Applicant was forewarned of his dismissal and therefore had ample time in which to lodge the application, including the benefit of the full 21 days.

Action taken by the Applicant to dispute the dismissal

1. There is nothing before the Commission to suggest that the Applicant took any action to dispute his dismissal other than the filing of this application.

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

1. I find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted to the Applicant.

The merits of the application

1. The competing contentions of the parties in relation to the merits of the application are set out, with minimal detail, in their filed materials.

1. By way of background, the Applicant’s employment was terminated by the Respondent following the commencement of Public Health Orders in Western Australia. These Public Health Orders restricted some unvaccinated individuals’ access to the university campus on which the Respondent conducted business.

1. There is significant disagreement between the parties as to the circumstances around, and reasons for, the Applicant’s dismissal. In the F2 Application Form, the Applicant provides a litany of reasons as to why his dismissal was unfair, including the lawfulness of directions and his vaccination status. The Respondent maintains that the dismissal was due to the Applicant’s non-attendance in the workplace.

1. Having examined the materials, it is evident that the merits of the application turn on contested points of fact, evidence in respect of which should be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, in circumstances like the matter before me, it is not appropriate to resolve these issues in dispute in this forum.[13]

1. In the absence of a hearing of the evidence, it is not possible to make any sound assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

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

1. Neither party brought to the Commission’s attention any relevant matters concerning this consideration and I am unaware of any relevant matters. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Conclusion

1. Having regard to all the matters in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this matter.

1. The Applicant’s reasons for delay are sadly not uncommon. The Applicant had benefit of the full period in which to lodge his application. On the materials before the Commission, the Applicant did not take any other actions to dispute the termination. The merits of the application cannot be fully considered without further examination of the contested facts. There is nothing before the Commission which suggests unfairness to the Respondent or other individual in a similar position.

1. The Applicant, despite being given the opportunity to do so on numerous occasions, failed to provide sufficient evidence or submissions in relation to the circumstances supporting the extension of time. The onus is on the Applicant to satisfy Commission that it should grant the extension.

1. 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. An Order to that effect has been issued.[14]

Appearances:

R George, Applicant.

S De Alwis and C Celestine, Respondent.

Hearing details:

2020.
Perth (by video):
June 7.

[1] [2011] FWAFB 975, at [13].

[2] [2011] FWAFB 975, at [13].

[3] [2018] FWCFB 901, at [17].

[4] Fair Work Act 2009 (Cth), s 399.

[5] Regarding the calculation of the time limit; Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]; See also Acts Interpretation Act 1901 (Cth) s 36(1) (as in force on 25 June 2009); Fair Work Act 2009 (Cth), s 40A.

[6] [2015] FWCFB 287, at [12].

[7] [2018] FWCFB 901, at [39].

[8] [2021] FWC 5956.

[9] F2 Application Form, at 1.5.

[10] [2022] FWC 250.

[11] Ibid, at [11].

[12] [2021] FWC 5956, at [7].

[13] [2011] FWAFB 975, at [36].

[14] [PR742584].

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