Shaun Menzies v Costa's Pty Ltd

[2021] FWC 4665

[2021] FWC 4665

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Shaun Menzies
v
Costa's Pty Ltd
(U2021/4965)

COMMISSIONER MCKINNON MELBOURNE, 2 AUGUST 2021

Application for an unfair dismissal remedy – application filed out of time – extension of time not allowed.

Introduction

[1] Shaun Menzies was employed by Costa’s Pty Ltd as a forklift driver at the Melbourne Fruit and Vegetable Market from 15 December 2014 until 11 March 2021. On 8 June 2021, he applied for an unfair dismissal remedy after he was dismissed for reasons of serious misconduct. Unfair dismissal applications must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, within a further period allowed by the Commission. 1

[2] The date of Mr Menzies’ dismissal is in dispute. Costa’s says Mr Menzies was dismissed on 11 March 2021. This would make his application 68 days late. Mr Menzies says he was dismissed either on 10 or 11 March 2021 or 9 April 2021. On these facts, the application is 39, 68 or 69 days late respectively. On any version of the facts, the application is out of time.

[3] This decision deals with the date that the dismissal took effect, and whether additional time should be allowed to Mr Menzies to file his application. I have decided that the dismissal took effect 11 March 2021 and that additional time should not be allowed to Mr Menzies to make his application. These are my reasons.

Effective date of dismissal

[4] Mr Menzies was told that his employment was terminated on the grounds of serious misconduct during a ‘Microsoft Teams’ meeting on 11 March 2021.

[5] Subsequent confusion arose in relation to the actual date of dismissal. The letter of termination referred to the dismissal taking effect the day before – that is, 10 March 2021. A later issued Employment Separation Certificate specified the date of dismissal as 9 April 2021, coinciding with the expiry of a four-week notice period for which Mr Menzies was paid in lieu. In my view, the dates identified in both the letter of termination and the Employment Separation Certificate are wrong. The dismissal took effect on 11 March 2021 when it was clearly communicated to Mr Menzies by Costa’s, in the presence of a support person. All parties agree that this is what happened in the meeting on 11 March 2021.

[6] The unfair dismissal application made by Mr Menzies was made 89 days after the dismissal, which means it is 68 days late.

Extension of time

[7] Section 394(3) of the Fair Work Act 2009 (Cth) (the Act) requires me to consider the following matters when deciding whether to allow more than 21 days for a person to lodge an unfair dismissal application:

•  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.

[8] An extension of time can only be granted if there are exceptional circumstances. These are circumstances “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”. 2

[9] Reason for delay: The reason Mr Menzies gives for the delay in applying to the Commission is primarily that in 2002, he suffered permanent neurological injuries. As a result, it takes Mr Menzies a long time to comprehend things and to be in the right state of mind to make decisions. He has depression and anxiety and every day is a struggle. Sometimes he locks himself away and won’t answer his phone. He also suffers memory lapses.

[10] Mr Menzies has a phone but does not use computers and does not know how. He presently lives with his parents who provide him with support. His long-time friend and support person, George Krotkas, assisted him in discussions about the events leading to dismissal, and then the dismissal. They spoke about the possibility of an unfair dismissal claim on 9 March 2021, before the dismissal took effect.

[11] After the dismissal, Mr Menzies submits that he was unable to commit to hearings and “all the rest of it”. The shock or trauma of the dismissal, and the resulting changes to his normal daily routine, made what had already been a difficult year for Mr Menzies even worse. A medical report provided by his Clinical Psychologist confirms that Mr Menzies’ has a history of depression and anxiety, at times has difficulty controlling his emotions and may have an undiagnosed mental health condition.

[12] Eventually, after receiving advice from Mr Krotkas, members of his family and his psychologist, he decided to go ahead with the unfair dismissal claim. In the meantime, Mr Krotkas assisted Mr Menzies including by making his application to Centrelink for support. This took a while because of the delay in receiving the Employment Separation Certificate from Costa’s. Mr Menzies was able to make inquiries of Costa’s about the Employment Separation Certificate by telephone on 23 March 2021. Mr Menzies has not been looking for other work since the dismissal.

[13] I find that Mr Menzies’ neurological injuries are an exceptional circumstance. However, I am not satisfied in the circumstances that the injury adequately explains the delay of more than two months. The medical evidence does not establish a connection between the two. Mr Menzies has been able to participate in the workplace in a consistent way for over 6 years. He was able to participate in a separate process to deal with a ban imposed on his access to the workplace by the Melbourne Markets Authority during a period of stand down before the dismissal. He was alive to the possibility of an unfair dismissal claim on 9 March 2021, two days before the dismissal took effect. He was able to request an Employment Separation Certificate from Costa’s within the 21-day timeframe. I accept that Mr Menzies was likely experiencing depression and anxiety. However, rather than being unable to make an unfair dismissal application within the statutory timeframe, Mr Menzies was reluctant to do so. Eventually, at the urging of his support network, Mr Menzies decided to go ahead. Computer illiteracy was likely a barrier to making the application quickly in terms of locating the relevant form and sending it to the Commission although these matters can be resolved over the telephone and by post. In any event, Mr Krotkas was both willing and able to assist Mr Menzies in this regard and ultimately did.

[14] Whether the person first became aware of the dismissal after it had taken effect: Mr Menzies became aware of the dismissal on 11 March 2021 when it took effect.

[15] Any action taken by the person to dispute the dismissal: There is no evidence of action taken by Mr Menzies to dispute the dismissal until this application was made. Mr Menzies did appeal a ban imposed on him by the Melbourne Markets Authority which prevented his attendance at work. The outcome of the appeal was advised to Mr Menzies on 4 March 2021, one week before he was dismissed.

[16] Prejudice to the employer (including prejudice caused by the delay): Costa’s submits that granting additional time to Mr Menzies will cause it prejudice because there are clear timelines in relation to applications that must be made within 21 days and there are no exceptional circumstances in this case. Its potential witnesses remain employed by Costa’s, although one is due to go on maternity leave at the end of July 2021. There is also a potential witness who is not employed by Costa’s and while it seems likely that they are still in the workplace, this is not known. I accept the potential for some minor prejudice to Costa’s if additional time is allowed because one of its witnesses may be unavailable if the hearing proceeds due to maternity leave.

[17] Merits of the application: The decision to dismiss Mr Menzies followed a workplace altercation on 23 February 2021 that was apparently recorded on CCTV. As a result of the altercation, Melbourne Markets Authority banned Mr Menzies from the workplace. Mr Menzies has not been able to view the footage but says there are conflicts in the evidence about what he was doing, and did, with a Stanley knife in his hand at the time. Mr Menzies says the CCTV footage has been misinterpreted and that dismissal was not warranted in the circumstances. Mr Menzies also says that in a second altercation the same day, threats were made to his life and safety and that no action was taken by Costa’s to support him in relation to the threats. Mr Menzies wants to know why his report to management about the second altercation was disregarded.

[18] Costa’s characterises Mr Menzies’ conduct on 23 February 2021 as serious misconduct. It also says that once Melbourne Markets Authority banned him from the workplace, Mr Menzies was no longer able to attend for work: an inherent requirement of the position. Costa’s relies on what it says was a fair process in relation to the dismissal and on a prior warning given to Mr Menzies in relation to a verbal workplace altercation. On the face of the record - and emphasising that I have not seen or heard any of the evidence at this early stage - it seems likely that valid reason for dismissal will be established and that if Mr Menzies is to succeed it will be because he is able to persuade the Commission that the dismissal was harsh in all the circumstances.

[19] Fairness as between the person and other persons in a similar position: Following the altercation on 23 February 2021, Mr Menzies was suspended and then dismissed. The other worker involved in the altercation is said to have been treated differently.The relevance of such different treatment is limited in the sense that the other worker was not an employee of Costa’s. Costa’s was not in a position to manage the conduct or performance of the other worker. Even so, Costa’s did not register its concerns about the other workers’ conduct with the Melbourne Markets Authority, because it held none. Whether that was a reasonable position to take in the circumstances can only be determined by resolving the contested facts about what happened on 23 February 2021.

Conclusion

[20] The statutory time limit forms part of a legislative scheme that seeks to strike a balance between the competing rights of employers and employees who are dismissed. In this case, there is the exceptional circumstance of Mr Menzies’s historical neurological condition. However, for the reasons stated above I am not persuaded that this adequately explains the significant delay in making his application or the lack of any other steps to dispute the dismissal in the meantime.

[21] Mr Menzies was advised of the dismissal on the date that it took effect. He had been advised of the possibility of an unfair dismissal claim if he was dismissed two days earlier. He was reluctant to act on that advice. That has since changed, and if the application now proceeds there is a resulting, albeit small, risk of prejudice to Costa’s. Both on the merits and the issue of fairness between workers, competing views of the facts could only be resolved by hearing.

[22] On balance, and in all of the circumstances, I am not satisfied that it is appropriate to allow a further period of time to Mr Menzies to make the application.

[23] The application is dismissed.

COMMISSIONER

Appearances:

G Krotkas for the Applicant.
E Manikhot from the Respondent.

Hearing details:

2021.
Melbourne:
July 14.

Printed by authority of the Commonwealth Government Printer

<PR732357>

 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Nulty v Blue Star Group (2011) 203 IR 1 at [13].