Ryan Holland v Rainbow Bay Surf Lifesaving Supporters Club

[2018] FWC 1456

[2018] FWC 1456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Holland
v
Rainbow Bay Surf Lifesaving Supporters Club
(U2017/13868)

COMMISSIONER SIMPSON BRISBANE, 9 MAY 2018

Application for an unfair dismissal remedy.

[1] On the afternoon of 8 May 2018 I conducted a hearing of an unfair dismissal – extension of time application with the parties participating by telephone. At the conclusion of the hearing I issued a brief oral decision indicating my intention not to grant the applicant an extension to file his application. I indicated I would provide brief written reasons for my decision which are outlined below.

[2] This matter concerned an application made in accordance with section 394 of the Fair Work Act 2009 (the Act) by Mr Ryan Holland who alleges his employment with Rainbow Bay Surf Lifesaving Supporters Club (the Respondent) was terminated unfairly.

[3] Mr Holland stated in his application that he commenced employment with the Respondent on 10 July 2006, until his dismissal on 3 November 2017. Mr Holland’s unfair dismissal application was lodged on 27 December 2017, and was therefore made thirty three days outside the 21 day period prescribed by the Act. The application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).

[4] The Act provides that a person who has been dismissed and applies to the Commission for it to deal with an unfair dismissal application pursuant to s.394 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.

[5] Section 394 of the Act provides:

“Section 394 Application for unfair dismissal 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).

(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.”

Background

[6] On 27 December 2017 the Commission received a “Form F2 – Unfair Dismissal Application” from Mr Holland dated 27 December 2017. Part 1.4 of the Application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Mr Holland provided on his application:

“After being on work cover for a work-related injury since September I was sent a letter of termination on November 3rd 2017 and was paid out my ten years long service pay directly into my bank account.

I have a medical certificate stating I was still on work cover until November 10th 2017. My work cover payments ceased on the 3rd of November with my termination.

I was not aware my employer was able to terminate my employment whilst on work cover hence why it has taken over the 21 calendar days for me to submit this form.

I have since been unable to find work. I have contacted my former employer Rainbow Bay SLSC and asked for a separation certificate and have not received a call back nor the certificate.

Alternately I have been into Rainbow Bay SLSC to ask for my separation certificate and was asked to leave the premises and not return otherwise the authorities would be called.”

[7] On 19 February 2018 the parties were invited to make submissions in relation to the extension of time issue. The matter was listed for jurisdiction hearing on 12 March 2018 to determine whether an extension of time should be granted. Mr Holland did not appear at the hearing and following the provision of an explanation, the matter was relisted for 8 May 2018.

[8] At the hearing, Mr Holland represented himself. Mr McKinnon represented Rainbow Bay.

Submissions

[9] On 2 March 2018 Mr Holland provided his Outline of Argument – Extension of time, including supporting documents. The Respondent did not file any further material.

Section 394(3)(a) – reason for the delay

[10] Mr Holland submitted that on 27 September 2017 he was assaulted by a patron whilst at work for the Respondent. The following day he attended a doctor’s appointment and was put on sick leave and Workcover. According to the medical certificate the nature of the injury was infected cut wounds and a possible fracture to on of his fingers, caused by his finger being twisted and scratched by the fingernails of a woman who was a patron. Mr Holland submitted that whilst on leave he received a letter of termination that did not provide reasons.

[11] Mr Holland submitted this led him to become confused and depressed. He said he commenced seeing a psychologist who he is still seeing to date. Mr Holland submitted he believed his confusion and depression were the reasons why his application to the FWC was late.

[12] During the course of the Hearing I questioned Mr Holland whether it was his submission that he was medically unfit to make an application to the Commission up until 20 December 2018. Mr Holland responded that it was not the case that he was medically unable to submit an application, but rather that he was not aware that he could submit an application until his friends gave him advice.

[13] I am not satisfied Mr Hollands reasons for delay are sufficient to weigh in favour of granting an extension.

Section 394(3)(b) – whether the person first became aware of the dismissal after it had taken effect

[14] Mr Holland submitted that even though his termination letter was dated 3 November 2017, he did not receive the letter until 8 November. Given it is generally the case that a termination does not have effect until it is communicated, and Mr McKinnon for the Respondent did not challenged Mr Hollands claim that he did not receive the letter until 8 November, I proceed on the basis that the date of termination was 8 November 2017. This still makes Mr Holland’s application, having been filed on 27 December 28 days out of time.

[15] I am satisfied Mr Holland was aware of his dismissal from 8 November. This does not tend to support the case for the granting of an extension.

Section 394(3)(c) – any action taken by the person to dispute the dismissal

[16] Mr Holland said after receiving his termination letter he tried to contact the Respondent but nobody would discuss his termination. Mr Holland stated the Respondent refused to provide him with a separation certificate.

[17] Mr Holland said he was not himself, and it wasn’t until his friends suggested he should receive some advice that he contacted Workcover on around the 20 December 2017. He said Workcover then referred him to the Fair Work Commission.

[18] I am not satisfied Mr Holland took sufficient steps to dispute the dismissal, and there appears to be no cogent basis for his not doing so within the 21 day time period that expired on 29 November 2017. This does not tend to support the case for the granting of an extension.

Section 394(3)(d) – prejudice to the employer

[19] Mr McKinnon submitted the Responent had all but put the case behind it, and that Mr Holland’s application had no merit. Mr McKinnon submitted proceeding with the application would cause prejudice to the Employer.

[20] I am of the view that whilst the proceeding with the application may cause some inconvenicence to the Employer, it would not be sufficient to weigh in favour of not granting an extension.

Section 394(3)(e) – the merits of the application

[21] Mr Holland submitted he worked as a casual for the Respondent for 11 years. Mr Holland submitted he worked between five and six days a week. He submitted he was never given any warnings in relation to his performance.

[22] Mr McKinnon submitted Mr Holland had been warned a number of times for misconduct, in some instances potentially leading to criminal misconduct. Mr McKinnon submitted the Respondent would be able to submit a number of statements from other staff of the Respondent to support this submission.

[23] Mr Holland said he was never made aware of any of the alleged incidents of misconduct and was not issued any warnings in relation to these either.

[24] The competing contentions give rise to factual disputes that I should not give detailed consideration to as they go to the substantive case. I am satisfied that it is appropriate to regard the consideration under s394(3)(e) as a neutral matter.

Section 394(3)(f) – fairness as between the person and other persons in a similar position

[25] The parties did not make any submissions of particular relevance on this point. I will consider this a netural matter.

Conclusion

[26] I have taken into account each of the elements of s.394(3) of the Act. This matter does not give rise to exceptional circumstances that would warrant the granting an extension of time beyond the 21 day time limit. On that basis the application for an extension of time is dismissed.

COMMISSIONER

Appearances:

Mr R. Holland appearing on his own behalf

Mr I. McKinnon appearing for the Respondent

Hearing details:

2018,

Brisbane:

May 8

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