Sean O'Toole v SRA Contractors Pty Ltd
[2022] FWC 1445
•8 JUNE 2022
| [2022] FWC 1445 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sean O’Toole
v
SRA Contractors Pty Ltd
(U2022/3506)
| COMMISSIONER MCKINNON | SYDNEY, 8 JUNE 2022 |
Application for an unfair dismissal remedy – application filed out of time – whether additional time should be allowed.
Mr Sean O’Toole was employed by SRA Contractors Pty Ltd from 14 January 2021 until 26 February 2022. On 23 March 2022, Mr O’Toole applied for an unfair dismissal remedy. The application was filed 4 days after the end of the 21-day statutory filing period. The question is whether additional time should be allowed for Mr O’Toole to make the application to the Commission.
I have decided not to allow an additional period for Mr O’Toole to make the application. The application will be dismissed. These are my reasons.
Extension of time
Under section 394(2), additional time may be allowed to a person to make an unfair dismissal application if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[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.”
The matters to be taken into account when deciding whether to grant additional time are set out in section 394(3) of the Act. These are:
the reason for the delay
whether the person first became aware of the dismissal after it had taken effect
any action taken by the person to dispute the dismissal
prejudice to the employer (including prejudice caused by the delay)
the merits of the application, and
fairness as between the person and other persons in a similar position.
Relevant factors
Reason for delay: Mr O’Toole submits that in the month and weeks leading up to the dismissal, he told Mr Chase that he was about to lose his rental property. The dismissal was a shock, very untimely and caused him stress. Mr O’Toole regularly cares for his partner’s 5 year‑old son when he comes home from work, as his partner works late hours. The pandemic saw his partner lose work for 16 weeks and this caused financial strain on the family. When he lost his job, Mr O’Toole had to return his car to SRA Contractors. He was then trying to take care of a 5 year‑old and searching for a new job without a car. This was overwhelming and stressful.
Mr O’Toole submits that while he knew about unfair dismissal, he did not know the Commission could help him with his case and he did not have time to think that the Commission would be an option for him until he spoke to a friend about a week and a half after the dismissal. Text messages between Mr O’Toole and Mr Chase, Director of SRA Contractors Pty Ltd, on 1 and 3 March 2022 confirm that Mr O’Toole considered that he had an “unfair dismissal case” in the days immediately following dismissal.
Mr O’Toole separately submits that it was impossible for him to complete the unfair dismissal application form on time. At the time of dismissal, he did not have home internet. He found work one week later and has been working long hours at the new job, coming home late to care for his partner’s child. After work, he did not have access to a car to go somewhere to use a computer with internet to fill the forms out.
Mr O’Toole says he tried but failed multiple times to fill the forms out on his phone. Mr O’Toole said he received emails at the time about failed attempts to make the application, although he has since advised the emails cannot be located. Mr O’Toole instead submits that when trying to fill out the form on his phone, it would not let him enter in any information. He remembers calling the Fair Work helpline and asserts that they “let me know I needed to do it in a computer if I couldn’t fill it out on my phone.” I do not accept the submission. The Commission’s records indicate only one telephone call was made from Mr O’Toole’s mobile number to the Commission’s helpline before his application was submitted, on 19 March 2022. The call was not answered by the Commission, because it occurred on a Saturday when the Commission’s offices are closed. Either separately or together, I do not find any exceptional circumstances arising from the reasons given for the delay in making the application.
Whether the person first became aware of the dismissal after it had taken effect: Mr O’Toole knew he had been dismissed on 26 February 2022 when he was told of the dismissal over the phone by Mr Chase. If there was any doubt, this was clarified by no later than 1 March 2022 when SRA Contractors retrieved the company vehicle from Mr O’Toole.
Any action taken by the person to dispute the dismissal: Mr O’Toole sent text messages to Mr Chase on 1 and 3 March 2022 about making an unfair dismissal claim. He did not take any further steps to dispute the dismissal with SRA Contractors. He tried to call the Commission once on 19 March 2022 but was unsuccessful. The next step was his lodgement of this application to the Commission on 23 March 2022.
Prejudice to the employer (including prejudice caused by the delay): There is no apparent prejudice to SRA Contractors if the application proceeds.
Merits of the application: Mr O’Toole has an arguable case because he was dismissed without warning or notice on performance grounds and was denied an opportunity to remedy the performance concerns. As a small business employer, SRA Contractors also has an arguable case that it gave Mr O’Toole multiple verbal warnings about his workmanship before 26 February 2022, when after a significant rain event, three clients separately called to complain about defective work at sites where Mr O’Toole had worked. Each disputes the version of events of the other as well as who was responsible for defects during periods of heavy rain. Each questions the truth of assertions made to each other and to the Commission.
Fairness as between the person and other persons in a similar position is potentially relevant because Mr O’Toole submits that he was treated less favourably to other employees, who could and should have been let go before him.
Conclusion
I find no exceptional circumstances in this case. As a result, I cannot allow additional time for Mr O’Toole to make his application.
Even if there were exceptional circumstances, on balance, I would not allow Mr O’Toole additional time to make the application. In my view, Mr O’Toole did not take reasonable and timely steps to preserve his position in relation to the dismissal in the weeks that followed. This was despite access to a mobile phone including email access. I accept that sometimes online forms do not work on mobile phones. In such cases, the prudent course is to call the Commission during business hours and ask either to make an application over the phone, for a hard copy form to be sent out, or for technical support to complete the application online.
None of the other relevant considerations tip the balance in favour of a grant of additional time. The issues of prejudice to SRA Contractors, the merits and fairness as between the parties are neutral considerations and while each party has an arguable case, much depends on how the evidence presents at hearing and indeed what evidence there is to support the various assertions made.
The application is dismissed.
COMMISSIONER
Appearances:
S O’Toole on his own behalf.
E Lynch of Vincent Young on behalf of the respondent.
Hearing details:
2022.
Sydney (by video):
June 6.
[1] [2011] 203 IR 1 at [13].
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