Simon Mitchell v Fantech Pty Ltd
[2025] FWC 257
•24 JANUARY 2025
| [2025] FWC 257 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Simon Mitchell
v
Fantech Pty Ltd
(U2024/15344)
| COMMISSIONER PERICA | MELBOURNE, 24 JANUARY 2025 |
Application for unfair dismissal remedy
On 26 November 2024, Mr. Simon Mitchell was dismissed from his employment with Fantech Pty Ltd (Fantech).
On 18 December 2024, he made an application claiming he was unfairly dismissed from his employment. Unfair dismissal applications are required to made within 21 days of the dismissal taking effect. His application was one day late.
The Commission has power to extend the time for making the application if it is satisfied that there are exceptional circumstances under s 394(2)(b).
For the following reasons, I have decided to grant an extension of time for the making of this application.
Was the application made within 21 days after the dismissal took effect?
The 21-day period does not include the day on which the dismissal took effect. The dismissal took effect on 26 November 2024. The final day of the 21-day period was 17 December 2024 and ended at midnight on that day.
Mr. Mitchell’s application was filed on 18 December 2024. It was made 1 day late. I therefore need to consider whether to extend the period to make the application.
I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:
(a) Mr. Mitchell’s reasons for the delay;
(b) when Mr. Mitchell first became aware of the dismissal after it had taken effect;
(c) any action taken by Mr. Mitchell to dispute the dismissal;
(d) prejudice to Fantech (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between Mr. Mitchell and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances.[1] I will now consider each of these factors in turn.
Reason for the delay
Submissions and evidence of Mr. Mitchell
In his written submissions Mr. Mitchell gave a series of reasons why there was a delay in the filing of his unfair dismissal application:
· He was of the “belief that he had met the 21-day deadline” and was “not aware that the deadline had expired until he was notified by [the Commission];[2]
· The fact that “for approximately six months I have been homeless”. This meant:
oHe did not always “have access to electronic devices and the means to charge them”;[3]
oIt was “sometimes essential to spend money on things such as fast food over groceries or items of maintenance for car which was his primary source of shelter”;[4]
oThe irregularity of his day to day existence along with the loss of routine because of his dismissal “had a knock-on effect of causing a breakdown of his relationship with his partner”.[5] It was not until he reconciled his relationship with his partner he was “realistically in a position to file an application”.
· He suffered from “severe depression” and did not realistically consider lodging this unfair dismissal at least two weeks into the 21-day window[6]”
· At the time of filing the application “I did not have sufficient funds in my bank account to pay the application fee”. He was only able to pay the application fee after he reconciled with his girlfriend. On 18 December 2024 she remitted him the funds to pay the application fee and he filed the application.[7]
Mr. Mitchell’s evidence on his homelessness
In his oral evidence, I asked Mr. Mitchell to elaborate on the circumstances of his homelessness. He explained that around February 2024 he was living in a rental property and was notified by the owner that they were selling. He was given notice that he had to vacate. From February 2024 until around the time of his dismissal, he was living with his girlfriend in a property that she and her friend were renting. As a result of an argument with his girlfriend around the time of his dismissal, he was asked to leave that arrangement.
From around the date of his dismissal he was living in his four-wheel drive. He would put the “back seat down so he could sleep in there”. During the time he was living in his car he had a Samsung smart phone. He would charge his phone from the cigarette lighter when the engine was on. He would sometimes charge it from a power point if he was visiting a friend. He had no access to a laptop, computer, paper or a printer. Mr. Mitchell did concede he could have gone to Officeworks “and paid for copies” and to scan a document. He did not ring the Commission during the first two weeks and did not know that the Commission routinely waives the application fee if applicants can prove they cannot afford it. He started to “look into unfair dismissals after the second week he was terminated”. When I asked him what the reason for his delay was, he said, “My number one priority was to find a place to sleep”.
“Late in the second week” after his dismissal a friend invited him to stay at his house while his friend was elsewhere for a few days. After sleeping in a bed and having access to a shower, he “started to feel human again”.
At the same time he was sleeping at his friend’s house, the car in which he had been living developed clutch issues. Mr. Mitchell was unaware the application fee for an unfair dismissal could be waived. He spent the money he had on fixing the car, rather than funding an unfair dismissal application fee because the car “was where he was living”.
Around 16 December 2024, Mr. Mitchell contacted his partner and reconciled with her. He explained he did not have money to pay for the application fee and she agreed to forward him the money as she had just been paid. She remitted the money to him on 18 December 2024, the day the unfair dismissal proceeding was filed.
Submission of Fantech
Mr. Zevari who appeared for Fantech made submissions on reasons for delay including:
Miscalculation in relation to timeframe/purported medical condition. Mere ignorance of the statutory timeframe to lodge an application is not an exceptional circumstance. Nor is miscalculation of the expiry of the time limit. Mr Mitchell has not provided any explanation why he has not used the resources provided by the Commission, including written materials which, in clear and plain English, explain the basis upon which the 21-day period is calculated. There is no evidence Mr. Mitchell suffered the medical condition of “severe depression” nor how such a condition precluded him from making enquires or made him otherwise unable to lodge his unfair dismissal on time
Homelessness: The decision of Deputy President Masson in Manoj Ellikuttige v Moonee Valley Racing Club,[8] affirmed on appeal by the Full Bench, is instructive, in that (as with that decision), the Applicant has failed to provide any evidence as to how his homelessness, while of course regrettable, may have impacted his ability to pursue an unfair dismissal application. While Mr. Mitchell referred to having difficulty charging his electronic devices, there is no evidence before the Commission that he was unable to use his telephone to either call a third party or the Commission’s helpline to seek assistance or make enquiries in relation to lodging his application.
Financial position of Mr. Mitchell: The Commission has published ample resources making clear that an Applicant can apply to have a filing fee waived if this would cause serious financial hardship. This is referred to in the relevant Commission forms.
Submissions on Mr. Mitchell’s oral evidence: During the entire time following his dismissal, Mr. Mitchell had access to a smart phone. He could have examined the bench book, the Commission website, or could have made phone enquiries of the Commission. There was no impediment on Mr. Mitchell visiting a public library or Officeworks to scan a document. Mr. Zevari characterised his decision not to inform himself in this way as an “election”. In any event, Mr. Mitchell’s living conditions had improved such that he was no longer sleeping in his car and Mr. Mitchell gave no reason why there was a delay in the third week following his dismissal.
Consideration
Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not have to be unique, unprecedented or rare.
Homelessness
It may be surprising to those familiar with statistics relevant to homelessness in Victoria that there is an authority, Ellikuttige, that finds homelessness per se is not an exceptional circumstance. I took Mr. Zevari to the May 2023 Council to Homeless Persons Analysis Report; Victoria’s Tip 20: Areas with surging homelessness (the CHP report) which found that:
“The Census data suggests that 30,660 people are homeless on any given night in Victoria. This represents 47.1 people per 10,0000 Victorians [roughly 0.05 percent]. These figures include people living in their cars or on the street, people in boarding houses, temporary accommodation, or accommodation for the homeless and people in severely crowded dwellings [9]”
Ellikuttige
I am bound to consider the decision of Deputy President Masson in Ellikuttige.[10] In that case, the application was made over two years late. One of the reasons the extension of time was refused was that the applicant did not explain why his homelessness had “impacted on the delay in filing the unfair dismissal application”.[11]
In that decision the Deputy President found:[12]
“While Mr Ellikuttige has been homeless for an extended period of time, there was no evidence as to how that impacted his ability to pursue an unfair dismissal application. Notably, in the period 5 August 2015 to 28 July 2016, it was submitted by Mr Ellikuttige that he was required to variously attend court in relation to the criminal proceedings brought against him. It is difficult to reconcile that attendance and response to the criminal proceedings brought against him with his claimed inability to manage issues arising from the termination of his employment.”
Mr. Ellikuttige was able prosecute his criminal proceeding but took no steps to prosecute his unfair dismissal proceeding. The Deputy President found this “hard to reconcile”. He then went on to find (with emphasis added):[13]
“There is little doubt that Mr Ellikuttige found himself in a state of considerable difficulty and distress following the termination of his employment. That state included “mild anxiety and depressive symptoms with THC dependence” coupled with homelessness and unemployment. Such circumstances are regrettably neither unusual nor uncommon.”
There are, however, a number of factors that weigh against Mr Ellikuttige’s claims that he was unable to make an application prior to 25 July 2017, two years and eight days beyond the 21-day statutory period. Those factors include:
· The absence of medical evidence as to Mr Ellikuttige’s condition between the date of his termination on 25 July 2015 and 9 July 2017;
· His claimed and mistaken belief as to the role of the police in investigating the termination of his employment;
· His travel to and from Sri Lanka in August–September 2015 with his daughter;
· The absence of evidence as to how his homelessness has impacted on the delay in filing his unfair dismissal application;
· His delay in obtaining legal advice following the resolution of the criminal matter in July 2016; and
· The delay in the filing of his unfair dismissal application following instructions issued to his lawyer in May 2017”.
This decision is not authority for the proposition that homelessness can never be an exceptional circumstance. The effect of this decision is that it is incumbent on a person claiming homelessness as a reason for delay, to explain why their homelessness caused the delay. In so far as Mr. Ellikuttige did not explain why his homelessness led to the delay, he failed.
This interpretation is reinforced by the affirming decision of the Full Bench in the appeal from the decision of Masson DP[14] which found (with emphasis added):
“Secondly, Mr Ellikuttige submitted that the Deputy President was wrong to determine that he had not demonstrated that his medical condition and homelessness impacted on his ability to lodge his unfair dismissal application, because he provided all necessary evidence to his lawyer at the time. However, the Deputy President refers to the medical evidence and evidence of homelessness presented to the Commission at paragraphs [14] and [18] of the Decision. In each case, the Deputy President notes that evidence does not address the question of any link between these matters and the delay in lodging the unfair dismissal application. Mr Ellikuttige’s position appears to be that these factors inherently explain the delay. But this cannot be accepted. In our assessment, the second ground of appeal does not make out any representative error. There is no indication that Mr Ellikuttige’s lawyer did not present relevant evidence to the Deputy President, or that Mr Ellikuttige raised any concerns to this effect. Further, the Deputy President did not in our view mistake the facts, let alone make a significant error of fact, as would be necessary to found an appeal on this basis (s400(2)).
Thirdly, Mr Ellikuttige says that he considers the Deputy President’s decision to be unreasonable, taking into account his living situation, mental state and the occurrence of events outside his control. However, we do not see any basis to infer that in some way there was a failure by the Deputy President properly to exercise the discretion which the Act conferred on him or that his decision was legally unreasonable.”
Evidence on Mr. Mitchell’s homelessness
Mr. Mitchell gave oral evidence which can be argued to articulate reasons why his state of homelessness led to a delay.
Unlike in this case, nothing in the Masson DP decision gives any details of the form of homelessness Mr. Ellikutige was experiencing.[15] The CHP Report refers to different living arrangements experienced by homeless people. These include sleeping rough in the streets, living in cars, boarding houses, temporary accommodation, accommodation for the homeless and in severely crowded dwellings. Common sense suggests the level of dislocation experienced by a homeless person sleeping rough, or in a car, would be more than those that that have a bed to retire to at night.
Mr. Mitchell suffered a twin dislocation at the time of his dismissal. He not only lost his job, but he also split up with his partner. His estrangement from his partner had a material effect on his living arrangements because he was asked to leave the house in which he was residing.
For the first two weeks following his dismissal, he was sleeping in his car. He had a smart phone but could only charge it when the car was running or if he had access to a power point when he visited friends. He did not have access to a computer, paper or a capacity to scan a document. He could have attended at a library or an OfficeWorks while he was living in his car.
Fantech criticises Mr. Mitchell on the basis that he neither rung the Commission nor used the online resources available to him through his smart phone. When I asked Mr. Mitchell to explain why he had not contacted the Commission, he said, “My number one priority was to find somewhere to sleep.” Is it surprising that someone forced to sleep in their car prioritises getting out of that situation rather making enquiries of the Commission or its website?
Mr. Mitchell’s living situation improved in the third week following his dismissal. A friend allowed him to live in his house. Mr. Mitchell explained that now he was sleeping in a bed and, having access to a shower, he “started to feel human again”.
At that time, his car developed clutch issues. He decided to spend money on fixing his car rather than funding an unfair dismissal application fee because he was unaware the fee could be waived and had chosen to prioritise the car as it was “his main place of living”.
He then reconciled with his girlfriend who remitted money to his bank account so he could pay the application fee. Mr. Mitchell was still under the misapprehension that he could not lodge an unfair dismissal proceeding without paying the application fee. He had also made an error in counting the 21-day time limit for filing the application. He had assumed that 18 December 2024 was within the time limit.
Unlike the situation in Ellikuttige, Mr. Mitchell explained his homeless situation. He faced the triple problem of losing the emotional support of his partner, being asked to leave the dwelling in which he was living and adjusting to sleeping in his car for two weeks. I accept he could have rung the Commission or searched the internet for details regarding the filing of his unfair dismissal during the time he was sleeping in his car but as he said, “he was focused on finding a place to sleep”.
In the last week, he had the clutch problem in his car that he tried to fix himself and he decided to spend money to fix it rather than paying the application fee for his unfair dismissal because it was his “main place of living”.
I accept that a self-diagnosis of “severe depression”, his misunderstanding that the application fee was compulsory and his perilous financial situation by themselves cannot be regarded as out of the ordinary course, unusual or special.
However, the confluence of being kicked out of the place he was living, his dismissal, and the circumstance of sleeping in his car made it more difficult to prosecute his unfair dismissal. The dehumanising effect of homelessness is given voice by his evidence that, in the third week following his dismissal, when he was able to sleep in a bed and have a shower “he started to feel human again”.
In the last week up to the time the application was filed, Mr Mitchell’s financial situation (including the clutch repairs he had to pay for), his ignorance of the capacity to waive the application fee and his miscalculation of the time limit, may not, of themselves, provide a sufficient reason for the one-day delay in filing the application. However, if this is placed in a context of the first two weeks following his dismissal where he was suffering the dislocation of living in his car, where his priority was “finding a place to sleep,” it provides an adequate reason for his 24 hour delay in filing the proceeding.
It is trite that an applicant does not need to provide a reason for the entire period of the delay. Indeed, there is no barrier to an extension of time being granted when an applicant has not provided any reason for the delay.[16] It should be noted the application in question here was filed less than 24 hours late. The desperate circumstances he found himself in, particularly in the two weeks after his dismissal, give an adequate reason for that delay.
The explanation he gave of the circumstances of his homelessness support an argument for exceptional circumstances, I find this factor supports an extension of time being granted.
When did Mr. Mitchell first become aware of the dismissal after it had taken effect?
On 26 November 2024, the day of his dismissal, Mr. Mitchell was notified that he was dismissed by a letter entitled “Termination of Employment Due to Serious Misconduct”. He had the benefit of the full period of 21 days to lodge the unfair dismissal application.
This factor is neutral in a consideration of whether to extend time.
What action was taken by Mr. Mitchell to dispute the dismissal?
Mr. Mitchell conceded in his oral submission that he took no steps to dispute his dismissal up the time he filed his application.
This factor counts against an extension of time being granted.
What is the prejudice to Fantech (including prejudice caused by the delay)?
Fantech conceded there would be no prejudice if an extension of time were to be granted. This factor is therefore neutral in a consideration of whether to extend time.
What are the merits of the application?
The facts surrounding the termination of Mr. Mitchell’s employment are reasonably set out in the material received from the parties. He was dismissed with payment in lieu of notice for conduct which occurred on 22 November 2022. The conduct involved an altercation between Mr. Mitchell and his supervisor Mr. Aaron Wood. It occurred when Mr. Mitchell sought to leave work early. The conduct included “derogatory remarks” and “verbal threats of violence” such as:
“• You fucking retard;
· Weasel cunt;
· You don’t tell me what to do;
· Don’t you fucking touch me, or I’ll knock you the fuck out; and
· If you come closer, I will break your nose.”
In his oral submissions, Mr. Mitchell accepted he said most of these things (or words to that effect). He submitted that, in so far as he made these statements, they were “defensive” in character and that Mr. Wood was the aggressor. Those statements occurred in a context where he had been directed by Mr. Wood to complete tasks he was unfamiliar with earlier in the week, and he had not received assistance he had requested from the engineering team
In his written submissions, Mr. Mitchell makes comments about Mr. Wood’s style of supervision and gives evidence of various incidents involving Mr. Wood that preceded this altercation.
Fantech investigated the incident. During that investigation Ms. Mayne, the People and Culture Manager, interviewed Mr. Mitchell, Mr. Wood and “another witness”. Based on this investigation, she concluded that Mr. Mitchell’s assertion that Mr. Wood was the aggressor was not borne out by the evidence. Fantech reached the view that Mr. Mitchell was guilty of serious misconduct and he was dismissed with payment of two weeks’ notice.
Consideration
Until I have an opportunity to hear from Mr. Wood, and any other witnesses, I cannot make a determination of the merits. The merits turn on contested facts, which require a full hearing. It is not appropriate for the Commission to resolve contested facts in an extension of time application. In the absence of a full hearing, it is not possible to make any firm assessment of the merits.
This factor is therefore neutral in a consideration of whether to extend time.
Fairness as between Mr. Mitchell and other persons in a similar position
Fantech makes the following submissions in relation to this factor:
“The Commission has refused to grant an extension of time for applicants in a range of circumstances and situations where applicants have filed outside the 21-day time limit, including a number of recent decisions where applications are commenced one day out of time.
Further, the stated impacts of the relevant issues upon the Applicant in the relevant context are not unique, unusual or exceptional in nature. To grant the Applicant an extension solely in reliance on the Applicant’s reasons would be unfair to other applicants who have advanced similar submissions or were in similar circumstances and who were not granted an extension of time. The Applicant has provided no explanation as to why his circumstances should be treated differently from these matters, and this consideration accordingly weighs against the granting of an extension of time.”
Fantech’s argument seems to be:
· There are no exceptional circumstances in this case;
· There other decisions involving one day late applications “in similar circumstances” where there have been findings that there are no exceptional circumstances; and
· It would be unfair to the applicants in these other cases to extend time in this case.
This argument seeks to denude the Commission of its broad discretion to extend time in s 394. This discretion is dependent on the individual facts of each case. The existence of decisions to refuse extensions of time, with allegedly “similar circumstances,” does not take the matter further. This argument may have been more persuasive if Fantech had articulated what it was about these cases that were similar. It did not do so. This argument does not have sufficient weight to count against Mr. Mitchell as a factor.
It follows this factor is neutral to a consideration of exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
· Reasons for Delay: Mr. Mitchell was in desperate circumstances after his dismissal He was living in his car for two weeks. This impeded and delayed his capacity to research an unfair dismissal proceeding because he was focused on finding somewhere to sleep. In the eight days leading up to the filing of the application (where his living conditions improved), the dislocating effect of that homelessness, together with the financial problems he was suffering, including the cost of trying to fix his car, his miscalculation of the time limit and his misunderstanding that the application fee was mandatory provide an adequate reason for the one day delay. It follows this factor counts in favour of an extension of time under s 394(3)(a).
· Action to dispute the dismissal: It is not contested Mr. Mitchell took no action to dispute the dismissal. This factor counts against an extension of time being granted under s 394(3)(c).
The considerations in s 394(3)(b), (d) (e) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):
· Notification of the Dismissal: Mr. Mitchell was notified of the dismissal on the day it occurred. He had the benefit of the full 21-day period to lodge her unfair dismissal application.
· Prejudice to the employer: There is no evidence of prejudice against Fantech.
· Merits: On the untested and limited evidence before me, I am not able to assess the merits as a factor in determining whether I should grant an extension of time. In those circumstances, the merits of the application are a neutral consideration under s 394(3)(e).
· Fairness between persons No persuasive submissions were made on fairness arising between Mr. Mitchell and other persons in a similar position.
I conclude the reasons for the delay under s 394(3)(a) count in favour of an extension of time being granted. As Mr. Mitchell took no action to dispute his dismissal, this counts against an extension of time under s 394(3)(c). All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.
One factor counts in favour of an extension of time being granted and one factor counts against it. The other factors are neutral. On balance, taking into account all the factors under s 394(3), and given the application was only one day late, leads me to be satisfied there are exceptional circumstances to justify an extension of time. The time for filing the application is extended to the day the unfair dismissal application was filed. A case management hearing and directions will follow in due course.
COMMISSIONER
Appearances:
Mr. Simon Mitchell, the Applicant, on behalf of herself.
Mr. Sina Zevari on behalf of the Respondent.
Hearing details:
Friday, 24 January 2025
11 Exhibition Street, Melbourne and Microsoft Teams
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Digital Commission Book (“DCB”) at 22.
[3] Ibid at 23.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Mr. Mitchell relied on a submission of fact by his partner Ms. Sarah Lichfield to the effect that she remitted the funds for him to file his unfair dismissal application on 18 December 2024c.
[8] [2017] FWC 4829.
[9] May 2023 CHP Report, at p4 of 21.
[10] Manoj Ellikuttige v. Moonee Valley Racing Club [2017] FWC 4829.
[11] Ibid [23].
[12] Ibid [18].
[13] Ibid [22]-[23].
[14] Manoj Ellikuttige v. Moonee Valley Racing Club Inc[2018] FWCFB 4988, [22]-[23], a decision of Colman DP, Anderson DP and Cribb C.
[15] Deputy President Masson’s decision in Ettikutage at paragraph [18]. This paragraph somewhat blandly references evidence that Mr. Ellikuttige was “homeless”.
[16] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901.
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