Shane Dwight v Arrow Building Group

[2022] FWC 3254

[2022] FWC 3254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Shane Dwight
v

Arrow Building Group

(U2022/10542)

DEPUTY PRESIDENT MASSON MELBOURNE, 12 DECEMBER 2022

Application for an unfair dismissal remedy – application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed. 

1. This decision concerns an application made by Mr Shane Dwight (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant who was employed by Arrow Building Group (the Respondent) from 11 May 2015 as an Estimator, tendered his resignation on 7 September 2022 which took effect from 23 September 2022. The Applicant claims that his resignation was forced by the conduct or a course of conduct by the Respondent. The unfair dismissal application was lodged by the Applicant on 1 November 2022.

1. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(2). As the dismissal took effect on 23 September 2022 the period of 21 days ended at midnight on 14 October 2022. The application was therefore filed 18 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act.

1. The matter was initially listed for Conference/Hearing on 1 December 2022 but was relisted to be heard on 9 December 2021. This was done in order to allow the Respondent to file a response to the Applicant’s material, as the Respondent had not received the initial directions or material from the Applicant due to incorrect email contact details for the Respondent held on the Commission’s files. The Applicant was directed to file his material in relation to the jurisdictional issue by close of business on 21 November 2022, with which direction he complied. The Respondent failed to file material in reply despite the further period of time provided to it. The Applicant and the Respondent’s Director, David Schmidtke, appeared at the Conference/Hearing on 9 December 2022

1. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, 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.[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 requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

1. Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a)   the reason for the delay;

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

(c)   any action taken by the person 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 person and other persons in a similar position.

1. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

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 14 October 2022. The delay is the period commencing immediately after that time until 1 November 2022, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

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.[4] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[5].

1. The Applicant acknowledges that his application was not made within the 21-calendar days of his dismissal taking effect. He states however that he did not want to file an unfair dismissal application until he had resolved concerns regarding outstanding leave entitlements he says the Respondent owed him. He further states that he pursued the leave entitlements prior to making an unfair dismissal application as he believed that was the right process to follow. He also states he lacked knowledge of the unfair dismissal jurisdiction/process of the Commission until he had spoken with the Fair Work Ombudsman (FWO) about his outstanding leave entitlements on or about 26 October 2022.

1. Prior to filing his unfair dismissal application, the Applicant says he variously contacted the Respondent’s accountant by telephone on or about 23 September 2022, also sent text messages to Mr Schmidtke[6] and made enquiries with the FWO on or about 26 October 2022 in relation to securing payment of his leave entitlements. The Applicant further states that on 26 October 2022 he sent a letter to the Respondent using a template provided by the FWO and in that letter gave the Respondent until 10 November 2022 to respond in relation to payment of the outstanding annual leave entitlement[7]. The Applicant states that the Respondent did not respond to his attempts to recover his outstanding leave entitlements.

1. The Applicant also gave evidence that he suffers from medically diagnosed anxiety and depression, and that his dismissal was an emotional process that impacted on his ability to file his unfair dismissal application within the 21-day statutory time period. The Applicant produced a letter from Dr Stephen Ward[8], his treating general practitioner, in support of his claim that he had been medically unable to file his application on time. Dr Ward’s letter states that the Applicant has a history of depression and anxiety, and that the termination of his employment by the Respondent had been emotionally exhausting. Dr Ward was not available to be cross-examined on the information contained in the letter provided to the Commission.

1. The Applicant also produced a letter from Ms Michele Reeves of ‘My Heart Space’ in which Ms Reeves described the ‘men’s circle’ she facilitates as part of her business[9]. She says the ‘men’s circle’, which the Applicant joined for several months, was a place for men to connect, share life events, seek advice and get support if required. She further states in the letter that she observed through the Applicant’s participation in the group that the Applicant’s work environment was having an impact on his daily life, making all decisions and the easiest of tasks harder. Ms Reeves was not available to be cross-examined on the content of the letter provided in support of the Applicant.

1. Notwithstanding the Applicant’s evidence regarding his state of mental health prior to and following his dismissal, he conceded during cross-examination that had he been aware of the unfair dismissal jurisdiction/process prior to 26 October 2022 he would have been able to make an unfair dismissal application at an earlier time, albeit with some difficulty.

1. The Applicant’s explanation for the delay in lodging his application is in part that he was concerned to secure his outstanding annual leave entitlements prior to filing an unfair dismissal application and that the time taken by him in pursuing these entitlements, including seeking assistance from the FWO, extended beyond the 21-day statutory time period. I accept that following the Applicant’s termination of employment, he immediately raised with the Respondent the issue of his outstanding leave entitlements. A satisfactory response was not received within a reasonable timeframe following which the Applicant obtained advice from the FWO and sent correspondence to the Respondent on 26 October 2022.

1. I also accept that the Applicant may have held a concern that resolution of his leave entitlement claim may have been prejudiced by pursuit of an unfair dismissal remedy and that in these circumstances he chose to prioritise resolution of his outstanding leave entitlement claim. There was however no evidence before me that any statements were made or that pressure was brought to bear by the Respondent on the Applicant that was designed to discourage or delay an unfair dismissal application by the Applicant.

1. While the Applicant’s pursuit of claimed unpaid leave entitlements may have been frustrating for him, I am not satisfied that the Respondent’s lack of response prevented the Applicant from filing an unfair dismissal application within the required 21-day period. The leave entitlements are statutory entitlements that exist independently of the Applicant’s right to pursue an unfair dismissal remedy. In these circumstances I do not consider the Applicant’s decision to prioritise pursuit of unpaid leave entitlements over that of making an unfair dismissal remedy application, to be an acceptable or reasonable explanation for any part of the delay in filing his unfair dismissal application.

1. Nor is the Applicant’s claimed ignorance of the unfair dismissal jurisdiction/process of the Commission an acceptable reason for the delay. Even were I to accept that such ignorance contributed to the delay up till 26 October 2022, there is no explanation as to why having been informed by the FWO on 26 October 2022 of the unfair dismissal application process, he took several more days to file his unfair dismissal application.

1. The Applicant also referred to mental health issues he states he was dealing with during his employment with the Respondent which he says has left him feeling depressed[10]. However, the limited medical evidence before me did not indicate that the Applicant was, in the period immediately following his dismissal, debilitated to the point of being unable to prepare and file an application for an unfair dismissal remedy. Nor was there any evidence that explains why the Applicant was belatedly able to file his application when he did.

1. Tellingly, the mental health issues referred to by the Applicant did not prevent his pursuit of unpaid leave entitlements directly with the Respondent in the wake of his resignation. Nor did it prevent him from contacting and seeking assistance from the FWO in mid October 2022 and then preparing and sending correspondence to the Respondent on 26 October 2022 in relation to claimed outstanding leave entitlements. In any case, the Applicant conceded during cross-examination that he would have been able to file his unfair dismissal application, albeit with some difficulty, at an earlier stage had he been aware of the unfair dismissal jurisdiction/processes of the Commission.

1. Having regard to the foregoing, I am unable to accept the explanation provided by the Applicant as to having been unable to lodge the application on time or at a time earlier than the date on which this application was lodged. Noting the significant delay in filing the unfair dismissal application, the absence of an acceptable explanation for the filing delay or any part of the delay, weighs strongly against a conclusion that there are exceptional circumstances.

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

1. It was not in dispute, and I find, that the Applicant’s employment ceased on 23 September 2022 and he therefore had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances.

Action taken to dispute the dismissal

1. While the Applicant immediately pursued annual leave entitlements in the wake of his resignation, the Applicant did not take any action to contest his dismissal after it took effect on 23 September 2022, other than by lodging his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

1. The application was filed 18 days outside of the 21-day period. While such a delay is not insignificant, there is no material before me to suggest that such delay would cause significant prejudice to the employer. This factor weighs neutrally in my consideration.

Merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to extend time.

1. The Applicant refers in his evidence[11] to various conduct directed towards him by Mr Schmidtke including underpayment of entitlements, belittling and humiliating comments, intimidating and abusive behaviour. The Applicant states that the conduct was such as to leave him with no choice but to resign because of the mental health impacts on him. Mr Schmidtke rejected the Applicant’s evidence and described the flexibility afforded by the Respondent to the Applicant having regard to his single parent status and caring responsibilities.

1. It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration. 

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

1. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

1. 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.

Conclusion

1. Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

1. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S Dwight, Applicant.
D Schmidtke for the Respondent.

Hearing details:
2022.

Melbourne (by Microsoft Teams):
December 9.

Printed by authority of the Commonwealth Government Printer

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[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[2] Ibid.

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

[5] Ibid at [40].

[6] Exhibit A3, Text message dated 27 September 2022, Exhibit A5, Text message dated 4 October 2022

[7] Exhibit A4, Letter from Applicant to Respondent, dated 26 October 2022

[8] Exhibit A6, Letter from Dr Stephen Ward, dated 11 November 2022

[9] Exhibit A8, Letter from Michele Reeves, undated

[10] Exhibit A1, Witness Statement of Shane Dwight, at [12]

[11] Exhibit A1, Witness Statement of Shane Dwight

Printed by authority of the Commonwealth Government Printer

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