Rui Fernando Da Cruz Vieira v Cushman and Wakefield Pty Ltd
[2022] FWC 2071
•4 AUGUST 2022
| [2022] FWC 2071 |
| FAIR WORK COMMISSION |
| EX TEMPORE DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rui Fernando Da Cruz Vieira
v
Cushman and Wakefield Pty Ltd
(U2022/6569)
| DEPUTY PRESIDENT MOLTONI | BRISBANE, 4 AUGUST 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Mr Rui Fernando Da Cruz Vieira, whom I will refer to as the Applicant, made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Cushman and Wakefield Pty Ltd, whom I will refer to as the Respondent.
Before granting a remedy, the Commission must be satisfied that the application was not made out of time.
Having heard the parties, I now proceed to give these reasons for my decision ex tempore.
This published decision reflects the decision I gave ex tempore on 4 August 2022 with corrections for grammatical, syntactical and any other insignificant errors.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
The parties agree, and I so find, that the dismissal took effect on 25 May 2022 and the application was made on 23 June 2022, some 8 days after the dismissal application was required to be lodged. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.
The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:
(a) the reason for the delay;
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors (Stogiannidis), which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 15 June 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 23 June 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.
As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, 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.
As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.
The Applicant submitted that the delay was for the following reasons:
· The Applicant was awaiting a termination letter which had still not been sent to him when he did file this application;
· He was ill with Influenza A and had no immediate family or support so had to take care of himself;
· Throughout this time the Applicant had to move in with a friend as a result of his lack of income;
· The Applicant felt humiliated and ashamed about losing his position after 3 years of service;
· The Applicant was unaware of his rights;
· The Applicant was a foreigner (although he was a permanent resident) and was unaware of his work rights in Australia; and
· The Applicant provided copies of text messages sent to the Respondent, demonstrating he was following up a request for a separation certificate so that he could make a claim for unemployment benefits.
In relation to the reason for the delay, the Respondent submitted that ignorance of the Applicant’s rights and/or relevant time period does not constitute exceptional circumstances.[1] Further, the Applicant was clearly aware of his termination at the meeting on 25 May 2022 and the Applicant acknowledged this in his affidavit multiple times.[2]
Further, the Respondent submitted that the text messages requesting a separation certificate provided evidence that the Applicant clearly understood he had been terminated.
The Respondent submitted that whilst it noted the Applicant submissions that he was recovering from an illness prior to the dismissal, had a relationship breakdown, had his driver’s license suspended and was forced to temporarily reside with friends, stress and similar conditions have not been found to constitute exceptional circumstances in and of themselves.[3]
The Respondent drew parallels with a range of authorities including that “ill health, low self-esteem, poor wellbeing and dire personal circumstances” without any evidence to support the same[4] was found not to meet the exceptional circumstances threshold and further noting that the negative financial, emotional or physical impact of being dismissed is, unfortunately, the norm and is not exceptional.
The Respondent further submitted that there was no medical evidence provided from the date of termination until the date the Applicant lodged the unfair dismissal application and indeed the Applicant had demonstrated he was capable of performing other tasks after his dismissal including searching for alternate employment, following up with the Respondent for his separation certificate and making a claim to the Department of Human Services for unemployment benefits, all of which the Applicant attests to in his affidavit. The Respondent also submitted that an Applicant’s self-assessment of their own psychological incapacity is not likely to be sufficient to establish exceptional circumstances.[5]
Turning to the evidence, the Applicant’s evidence was that he did not receive any documentation confirming his termination and was not informed as to how he could contest the termination.
The Applicant also gave evidence that he was ill for the 2 weeks prior to his dismissal and was terminated 2 days after he had returned to work. The Applicant claimed to have remained unwell for several weeks after and produced a medical certificate that was dated 18 May to 22 May 2022. There was no medical evidence put before the Commission supporting the Applicants claim he was unwell during the relevant period following his dismissal on 25 May 2022.
The Applicant gave evidence that his relationship of 8 years came to an end 2 weeks prior to his dismissal and his driver’s license was suspended for 3 months at the beginning of May 2022. The Applicant gave evidence that it was these last two reasons which caused him to temporarily move in with friends to facilitate his commute to work. This evidence is at odds with the Applicant’s statement at 1.5 of his Form F2 which said that he moved in with friends due to his loss of income resulting from his termination. In the hearing, the Applicant acknowledged that he had moved in with the friend prior to his termination.
The Applicant also produced an affidavit from his friend with whom the Applicant claims he was staying who re-iterated the Applicant’s despairing mood, breakdown of his relationship, loss of his driver’s license and employment. This friend did not attend the hearing.
The Respondent’s evidence was that there was a history of the Applicant’s poor performance, there were questions over his credibility and the Applicant was clearly aware that his employment was terminated on 25 May 2022. The Respondent also provided uncontested evidence that the Applicant was provided a copy of the Fair Work Information Statement on his employment commencing on 23 May 2019. I note that this statement provides information about the ending of employment including the employee’s rights to lodge an unfair dismissal claim with the Fair Work Commission within 21 days of dismissal.
During the hearing under cross examination by the Respondent, the Applicant admitted that he had spent some time seeking alternative employment including calling a number of job agencies to register for work and advise them of what kind of work he was seeking.
Having considered that evidence, I am not satisfied that there is evidence of ill health or other exceptional hardships without further supporting evidence of that during the relevant period.
I find that the reasons for the delay were that the Applicant was unaware of his rights and obligations in respect of making an application for unfair dismissal.
Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect, albeit verbally and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 23 June 2022.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter” in an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. 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.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings
As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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. 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.
I note the Applicants submission that he was simply unaware of the time frames and process involved to make his application, and that mere ignorance of the statutory time limit is not an exceptional circumstance[6] albeit had the Applicant read his Fair Work Information Statement such ignorance would have been overcome.
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[7] I note however, as mentioned previously, there is no such medical evidence before the Commission in respect of the period following the dismissal up until this application was lodged.
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist. This is made clear in the Full Bench decisions of Ellikuttige v Moonee Valley Racing Club at [2018] FWCFB 4988 and Weir v Hydro-Chem at [2017] FWCFB 758.
Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[8]
Mere ignorance of the statutory time limit is not an exceptional circumstance.[9]
Having regard to all of the matters at subsection 3 of section 394 of the Fair Work Act, I am not satisfied that there are exceptional circumstances.
Conclusion
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.
I so order.
DEPUTY PRESIDENT
Appearances:
R Da Cruz Vieira, application
A Shields of Norton Rose Fulbright for the respondent.
Hearing details:
2022.
Brisbane (by video)
August 4.
[1] Parker v Department of Human Services[2009] FWC 1638 [33]; Woolworths v Lin[2017] FWCFB 5081 [66]; Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty).
[2] For example, the Applicant states on page 1 of his Affidavit that he was called into a meeting on 25 May 2022, “was falsely accused of having arrived late to work and was promptly fired and made to leave the premises there and then”; in paragraph 2 of the Applicant’s Affidavit he also states that “I was terminated on the 25th of May”; also on page 1 of the Applicant’s Affidavit he states that “I was made aware of the dismissal from the moment it took effect”
[3] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362.
[4] Joel Bruce-Morich v BHP Billiton Iron Ore Pty Ltd[2013] FWC 2910 [36]-[37].
[5] Underwood v Terra Firma Pty Ltd[2015] FWCFB 3435 [15].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[7] Becke v Edenvale Manor Aged Care at [2014] FWCFB 6809.
[8] Ellikuttige v Moonee Valley Racing Club at [2018] FWCFB 4988 and Miller v Allianz Insurance Australia at [2016] FWCFB 5472.
[9] Nulty v Blue Star Group at [2011] FWAFB 975;Miller v Allianz Insurance Australia at [2016] FWCFB 5472.
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