Roderick Samson v Achieve Australia T/A Disability Services and Support

[2019] FWC 8568

[2019] FWC 8568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roderick Samson
v
Achieve Australia T/A Disability Services and Support
(U2019/11954)

COMMISSIONER JOHNS MELBOURNE, 19 DECEMBER 2019

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (Cth) (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Roderick Samson (Applicant) a further period for lodgement of his application for an unfair dismissal remedy.

[3] The relevant circumstances are as follows:

a) the Applicant commenced employment with Achieve Australia Limited (Respondent) on a full-time basis on 8 January 2018;

b) employment terminated by the Respondent on 30 November 2018;

c) completed F2 application lodged on 25 October 2019;

d) application therefore filed 329 days after the employment was terminated;

e) that being 308 days after the 21 day time limit provided for in the FW Act.

[4] In his F2 application the Applicant acknowledged that his application was filed late. He explained the delay as follows:

1. “I was psychologically stressed due to the unfair dismissal of cap achieve chem Australia and was seeking medical advice.

2. I was maliciously prosecuted and [waited]for the trial to finish the court hearing started 10 months after the incident come on 30 September 19 com au to be able to clear my name and convince the Fair Work Commission that I was actually the victim during the incident. I was found to be not guilty beyond reasonable doubt, and the magistrate ruled out that I was actually the victim of the incident.

3. I tried to contact the NSW Nurses and Midwife Association and wasn’t incapacity to understand the technicality of the guide they advise me due to the psychological impact of losing my employment.”

The jurisdictional objection

[5] On 7 November 2019 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.

[6] On 11 November 2019, in answer to the Respondent’s objection, the Applicant wrote to the Commission. His correspondence addressed the merits of the unfair dismissal claim.

[7] On 12 November 2019 Vice President Catanzariti wrote to the Applicant offering him an opportunity to explain the exceptional circumstances warranting the grant of an extension of time. The Applicant was asked to respond by 19 November 2019.

[8] Late on the evening of 12 November 2019 the Applicant responded. He wrote,

“I would like to inform the Commission that I want … to proceed with my complain[t] of unfair dismissal against Achieve Australia due to [exceptional] circumstances of medical reasons since I was suffering from anxiety depression, and secondly, I have to wait for the trial proceedings to finish to prove myself to the court that I was innocent, that I was the real victim which Achieve Australia denied me of my right to present my side of the story and evidences. Achieve Australia did not conduct a proper investigation on the matter and decided prematurely on terminating my employment without due process. Attached on my email is a medical certificate that I was complaining of psychological disturbance due to the wrong decision that Achieve Australia imposed on my employment.”

[9] On 14 November 2019 the matter was allocated to me and I issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection by 22 November 2019. The matter was programmed for hearing on 27 November 2019 (later relisted for 28 November 2019).

[10] The Respondent complied with the directions. The Applicant filed his materials 1 day late on 23 November 2019. I have had regard to all of the materials filed in the matter in coming to this decision.

[11] At the hearing on 28 November 2019 the Applicant represented himself. The Respondent was represented by its Chief HR Officer, Lorraine Salloum.

Legislative scheme

[12] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s.394(3) of the FW Act:

“(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.”

[13] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. 4

Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
[14] It is agreed between the parties that there were 329 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

[15] The Applicant put forward 3 reasons for the delay (as set out above).

[16] Before me the Applicant confirmed that I was in possession of all the documents he filed in support of his application for an extension of time. 5 He confirmed that he had not filed any medical evidence to support the contention that he was medically incapacitated to file an unfair dismissal claim within the 21 day timeframe.6 Consequently, although the Applicant says that he was depressed there is no independent evidence of the same.

[17] I observe that it is regularly, routinely or normally the case that employees dismissed from their employment find the event of termination and the period after stressful. There is nothing exceptional in the Applicant’s experience.

[18] Before me the Applicant also indicated that that he was not aware of the 21 day time period. He attempted to the attribute blame to his union in this regard. However, an ignorance of the statutory timeframe is never an exceptional circumstance. There is also no evidence that the Applicant was failed by or given incorrect advice by his Union.

[19] While the Applicant was no doubt focussed on the criminal charges that is not a reason for not filing an unfair dismissal claim within time. He could have filed the same within time and then have asked that it be held over pending the outcome of the criminal matters. That is a common course of conduct when the reason for dismissal is linked to allegations of criminal matters.

[20] Therefore, this factor weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[21] It is uncontested that the Applicant first became aware of the dismissal on 30 November 2018. 7

[22] Therefore, this factor weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[23] Other than file the present application 308 days late, the Applicant took no action to dispute the dismissal. The defence of the criminal proceeding is not relevant to the unfair dismissal.

[24] The action taken by the Applicant to dispute the dismissal weighs against granting the Applicant a further period to make his application.

[25] .

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[26] Noting the delay, even though I was told that the relevant personnel who would give evidence in this matter are still employed by the Respondent, a significant period of time has passed and it can be expected that memories have faded. 8 There is likely more than the usual prejudice associated with delay.

[27] The prejudice asserted by the Respondent also weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(e) - The merits of the application

[28] In the matter of Kornicki v Telstra-Network Technology Group 9the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 10

[29] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[30] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[31] The substantive factual contest between the Applicant and the Respondent is whether the conduct the Applicant was accused of occurred. The application of the criminal standard suggests not. However, this is not a factual dispute that can be resolved at a jurisdictional hearing.

[32] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[33] If the Applicant can establish to the satisfaction of the Commission that he did not engage in the conduct and or was denied procedural fairness he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of s.387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[34] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[35] The parties agreed that this factor is not relevant. 11

Conclusion

[36] When the s.394(3) factors are considered in totality, I am not satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. Rather, the circumstances are regularly, or routinely, or normally encountered. Consequently, they are not exceptional circumstances.

[37] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

[38] An Order [PR715418] to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr R Samson for himself.

Ms Lorraine Salloum, Chief HR Officer for the Respondent.

Hearing details:

2019.

28 November.

Melbourne via video-link to Sydney.

Printed by authority of the Commonwealth Government Printer

<PR715417>

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3 [2011] 203 IR 1.

 4 Ibid [13].

 5   Transcript PN29.

 6   Transcript PN48.

 7   Transcript PN43-45.

 8   Transcript PN106.

 9   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 10   Ibid.

 11   Transcript PN115-116.