Simon Dodds v Endeavour Foundation
[2020] FWC 6139
•25 NOVEMBER 2020
| [2020] FWC 6139 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Simon Dodds
v
Endeavour Foundation
(U2020/13685)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 25 NOVEMBER 2020 |
Application for an unfair dismissal remedy – extension of time – circumstances not exceptional – application dismissed.
[1] This decision concerns an application by Mr Simon Dodds for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act).
[2] On 18 November 2020, following hearing from the parties, the matter proceeded by way of determinative conference. Mr Dodds appeared on his own behalf. Alicia, 1 Senior People Experience Partner, appeared on behalf of the Respondent.
[3] In his materials, Mr Dodds asserts that he was notified of his dismissal on 21 January 2019 and his dismissal took effect on 23 January 2019. 2 The Respondent says that Mr Dodds was stood down on full pay on 21 January 2019 and on 22 February 2019 resigned from his employment with effect on 26 February 2019.3 At the determinative conference, Mr Dodds ultimately agreed that his employment ended on 26 February 2019 by way of resignation. However, he submits that he was forced to resign by the conduct of the Respondent. Mr Dodds’ unfair dismissal application was lodged on 14 October 2020. Whether or not Mr Dodds’ employment ceased by way of resignation or he was constructively dismissed is clearly a matter in dispute. For ease of reference, throughout this decision I will refer to the cessation of Mr Dodds’ employment with the Respondent as a dismissal. However, I make no finding as to whether Mr Dodds was dismissed.
[4] Section 394(2) of the Act provides 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 Commission allows pursuant to section 394(3). The period of 21 days ended at midnight on 19 March 2019. The application was therefore filed 575 days outside the 21 day period. Mr Dodds seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.
[5] 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. 4 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.5
[6] The requirement that there be exceptional circumstances before time can be extended under section 394(3) contrasts with the broad discretion conferred on the Commission under section 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.
[7] 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.
[8] 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 consider these matters in the context of the application.
Reason for the delay
[9] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. 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. 6
[10] In his materials and at the determinative conference, Mr Dodds says that the reasons for the delay in lodgement were manifold.
[11] Firstly, Mr Dodds says that on 21 January 2019, whilst at work, he was kicked, punched and slapped by a colleague. 7 At the determinative conference he said that this left him with an injury which led to him being hospitalised in St Vincent’s hospital shortly after 21 January 2019, for a period of about two weeks. Mr Dodds said that he was further hospitalised for a period of three weeks in August 2019. Secondly, Mr Dodds says that he reported to Victoria Police incidents of alleged sexual and physical assault experienced during his employment with the Respondent (Alleged Assaults).8 He says that the Alleged Assaults were reported to the Sexual Offences and Child Abuse Investigations Team (SOCIT) in Box Hill approximately shortly after December 2019, and to Camberwell Police Station, however he is unsure when this occurred. At the determinative conference, the Respondent says that it was notified of the reports by SOCIT in August 2019, and Camberwell Police Station in September and December 2019. At the determinative conference, Mr Dodds said that the police had advised him that they would deal with the reports of the Alleged Assaults and that he should wait until they had finished dealing with it. He says that this prevented him from doing anything and that this delayed his unfair dismissal application by at least one year.9 Thirdly, Mr Dodds says that due to the effects of COVID-19 the Respondent’s business was closed for a substantial amount of time, and the courts had been closed and inaccessible. He says that he would have taken ‘civil action’ much earlier had these closures not been in place.10 Finally, Mr Dodds says that postal delays further delayed his application.11
[12] As to Mr Dodds’ asserted periods of hospitalisation, Mr Dodds provided no probative evidence of these matters nor any evidence that his hospitalisation or the medical reason for them precluded him from lodging his application within time. At the determinative conference, Mr Dodds was unable to specify the nature of his hospitalisation or precisely when he was hospitalised. Further, on Mr Dodds’ evidence, the first hospitalisation of approximately two weeks occurred sometime shortly after 21 January 2019, and therefore prior to his dismissal taking effect on 26 February 2019. Accordingly, this cannot provide an explanation for the delay. Additionally, the second hospitalisation, on Mr Dodds’ evidence, was for a period of three weeks in August 2019. This cannot account for a delay in excess of one year and six months. These matters do not provide an acceptable or reasonable explanation for the delay.
[13] As to the reports to the police, Mr Dodds conceded at the determinative conference that the reports made were only in respect of the Alleged Assaults, and not in respect of his dismissal. In these circumstances, it is difficult to see how the advice of the police in those matters could have affected Mr Dodds’ ability to lodge an application for unfair dismissal. Mr Dodds did not provide any evidence, nor did he give any submissions as to when and if these matters were finalised. The Respondent says that no findings were made by the police in relation to the Alleged Assaults. Further, the earliest report made to police was in either August or December 2019, some six to ten months after Mr Dodds’ employment with the Respondent ceased and five to nine months after the expiry of the 21 day time period for lodgement of the unfair dismissal application. This cannot provide an acceptable or reasonable explanation for the delay.
[14] As to Mr Dodds’ assertion that COVID-19 related closures prevented the lodgement of the application, this cannot be accepted. Whilst the Respondent agrees that its business closed between March and October 2020, lodgement of an unfair dismissal application does not require that the Respondent be open for business. Further, whilst COVID-19 related restrictions impacted upon the way in which courts and tribunals in Victoria operated, at no point during the COVID-19 pandemic has the Fair Work Commission closed or stopped receiving applications, including by post. In any event, COVID-19 related restrictions were not imposed in Victoria until March 2020 and cannot explain any of the delay between 19 March 2019 and March 2020. Accordingly, this also cannot provide an acceptable or reasonable explanation for the delay.
[15] As to asserted postal delays, this cannot provide an acceptable or reasonable explanation for the delay. Mr Dodds did not say when his application was posted to the Commission, however Mr Dodds’ application was received via post by the Fair Work Commission on 14 October 2020. The envelope in which the application was posted was stamped by a mailing centre on 6 October 2020. An amended Form F2 application was received by the Commission on 26 October 2020 and was stamped by Ashburton post office on 19 October 2020. Accordingly, any postal delays experienced do not appear to be significant and certainly cannot explain a delay in excess of one year and six months. Further, applications in the Commission can be made by post, email, fax, via the Commission’s online lodgement service, 12 telephone,13 and, prior to the COVID-19 pandemic, in person.14 Accordingly, if Mr Dodds was concerned about postal delays, there were alternatives available to him for the lodgement of his application.
[16] At the determinative conference, the Respondent submitted that since the cessation of his employment, Mr Dodds has made a complaint to, and participated in conciliation at, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) about the Alleged Assaults, personal property he says remains at the workplace and his renumeration, and has also been able to make reports to Victoria Police on three occasions. Accordingly, the Respondent submits that as Mr Dodds had the ability to lodge and progress those complaints, he was able to lodge his application for unfair dismissal remedy. I accept those submissions.
[17] In these circumstances, I do not consider that Mr Dodds has provided an acceptable or reasonable explanation for the not insignificant delay in lodgement of the application. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[18] The Respondent submits that following Mr Dodds’ asserted resignation on 22 February 2019, a meeting was convened by the Respondent with Mr Dodds, the Respondent’s site managers, and Mr Dodds’ parents at which Mr Dodds’ resignation was discussed and accepted. Following the meeting, on 26 February 2019, Mr Fleming, Operations Manager of the Respondent, sent Mr Dodds an email confirming his resignation (26 February Email). 15 Later that day, Mr Dodds responded to that email thanking Mr Fleming for his best wishes and requesting final payment.16 At the determinative conference, Mr Dodds denied that he received the 26 February Email and said that he was told on 21 February 2019 by the employer not to return to the workplace. I reject that evidence. It is inconsistent Mr Dodds’ email to Mr Fleming on 26 February 2019. Further, at the determinative conference Mr Dodds said that he knew on 26 February 2020 that his employment had ended. Accordingly, Mr Dodds was aware that his employment with the Respondent, whether by way of resignation or constructive dismissal, had ended by the time it had taken effect. He therefore had the full 21 day period within which to make an unfair dismissal application.
[19] In the circumstances, I consider this to be a neutral consideration.
Action taken to dispute the dismissal
[20] At the determinative conference, Mr Dodds asserted that he disputed his dismissal via a complaint made to the VEOHRC and proceedings lodged in the Supreme and County Courts. The Respondent disputes that Mr Dodds contested his dismissal. At the determinative conference the Respondent agreed that Mr Dodds made complaints through external bodies such as VEOHRC and Victoria Police, however it says that no complaints were made in relation to his dismissal. Further, the Respondent confirmed that it had received various documents in apparent court form directly from Mr Dodds, however none of those documents contained the court’s seal. Further, the Respondent said that enquiries to the courts had confirmed that no formal court proceedings had been initiated by Mr Dodds against the Respondent. Mr Dodds provided to the Commission a number of documents in support of the proceedings he says he has commenced to dispute his dismissal. 17 None are sealed and do not appear to have been filed in the relevant court. Further, none appear to agitate Mr Dodds’ dismissal but rather appear to be directed to a range of other causes of action Mr Dodds believes he has, against a number of persons, which include, but are not limited to, the Respondent. I do not consider that these documents or Mr Dodds’ complaints to VEOHRC and Victoria Police constitute action taken by Mr Dodds to dispute the dismissal.
[21] In the circumstances, I consider this to be a neutral consideration.
Prejudice to the employer
[22] Mr Dodds submits that to his knowledge, no prejudice arises. The Respondent submits that it will suffer prejudice as a result of the delay for a number of reasons. Firstly, the Respondent says that a key human resources representative and senior manager who were involved with the matter at the relevant time are no longer employed by the Respondent. Secondly, it says that a number of relevant employees involved in the incident that lead to Mr Dodds being stood down on 21 January 2019 are no longer employed by the Respondent. Thirdly, it says that prejudice will be suffered due to the length of time which has passed. Finally, it says that prejudice will be suffered due to the lack of explanation provided by Mr Dodds for not filing the application within time. 18 The Respondent did not provide any evidence in support of its submission that key and other relevant employees are no longer employed by the Respondent. Notwithstanding that, I consider that such a significant delay does prejudice the employer. Even if relevant witnesses can be located, memories fade and recollections are less reliable after such a lengthy period of time. Accordingly, this weighs against the grant of an extension of time.
Merits of the application
[23] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The Act nonetheless requires me to take into account the merits of the application in considering whether there are exceptional circumstances. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed. I do not repeat them here save to say that Mr Dodds contends that throughout his employment with the Respondent he was subjected to physical and sexual assaults which were not properly addressed by the Respondent. 19 Mr Dodds submits that due to this he was forced to resign for his personal safety, such that it constituted a constructive dismissal.20 In his materials, and at the determinative conference, Mr Dodds raised a number of matters which he says are offences committed by the Respondent, including perjury, neglect,21 detinue and conversion,22 tampering with evidence,23 withholding his personal property, lying to police and lying to its WorkCover insurer.24 The Respondent disputes that there was a dismissal and contends that Mr Dodds’ employment ceased by way of resignation which was a decision that he made, in conjunction with his support persons.25 The Respondent says that on 22 February 2019, Mr Dodds resigned from his employment,26 after which the Respondent communicated with Mr Dodds and asked him to consider his decision to resign.27 It says that on 26 February 2019, Mr Dodds confirmed his decision to resign.28 At the determinative conference, the Respondent disputed that Mr Dodds’ complaints and allegations were not properly dealt with. It says that further information was requested from Mr Dodds for the allegations to be investigated, however this was not provided. It says that it did investigate the allegations however was unable to make any findings substantiating the allegations. Further, the Respondent says that Mr Dodds was stood down with pay on 21 January 2019, following an incident where it is alleged Mr Dodds was witnessed attacking a colleague.29
[24] Having considered the materials filed and heard from the parties at the determinative conference, it is evident that the merits of the application turn on significant contested points of fact which would need to be fully tested under oath. In these circumstances it is not currently possible to make any firm or detailed assessment of the merits. I do not consider the merits of the application to 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
[25] 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. Mr Dodds did not bring any matters to my attention in relation to this consideration. The Respondent submits that other persons in a like position in similar cases were denied much shorter extensions and therefore, an extension of such length as in this matter would not be appropriate. 30 The Respondent relied upon the decision of Burke v Department of Agriculture, Fisheries and Forestry-Australian Quarantine and Inspection Service [2011] FWA 1386. I do not consider this decision to be of any particular assistance in the matter before me. Cases of this kind generally turn on their own facts.
[26] In all the circumstances, I consider this to be a neutral consideration.
Conclusion
[27] Having regard to the matters I am required to take into account under section 394(3), and all of the matters raised by Mr Dodds, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. As 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 section 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
S Dodds on his own behalf
Alicia 31for the Respondent
Hearing details:
2020.
Melbourne (by telephone):
November 18.
Printed by authority of the Commonwealth Government Printer
<PR724587>
1 Surname redacted, see Order PR724888
2 Exhibit A1, q.1.3-1.4
3 Exhibit R1, q.1.3-1.4 and q.2.2
4 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
5 Ibid
6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
7 Exhibit A1, q.3.1
8 Ibid, q.1.5
9 Exhibit A2
10 Exhibit A1, q.1.5
11 Exhibit A2
12 Fair Work Commission Rules 2013, rule 13(2)
13 Ibid, rule 9
14 Ibid, rule 13(2)
15 Email correspondence between Mr Fleming and Mr Dodds dated 26 February 2020, filed 18 November 2020
16 Ibid
17 Exhibit A1, Attachments 1, 7 and 8
18 Exhibit R2 at [7]
19 Exhibit A1, q.3.1
20 Ibid, q.3.2
21 Ibid, q.1.5
22 Ibid and Exhibit A2
23 Exhibit A2
24 Exhibit A1, q.1.5
25 Exhibit R2 at [3] and [8]
26 Exhibit R1, q.3.2
27 Exhibit R1, q.3.2 and Appendix H
28 Exhibit R1, q.3.2; Email correspondence between Mr Fleming and Mr Dodds dated 26 February 2020, filed 18 November 2020
29 Exhibit R1, q.3.2
30 Exhibit R2 at [10]
31 Surname redacted, see Order PR724888
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