Steel Guttenbeil v Saputo Dairy Australia
[2023] FWC 1277
•30 MAY 2023
| [2023] FWC 1277 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Steel Guttenbeil
v
Saputo Dairy Australia
(U2023/3512)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 30 MAY 2023 |
Application for an unfair dismissal remedy - application filed 5 days out of time – circumstances not exceptional – extension not granted – application dismissed.
On 26 April 2023, Mr Steel Guttenbeil made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Saputo Dairy Australia (the Respondent). Section 394(2) requires unfair dismissal applications to be made within 21 days after a dismissal takes effect. Mr Guttenbeil’s Form F2 - Unfair Dismissal Application (Form F2) lodged on 26 April 2023 attached a termination letter dated 31 March 2023 outlining that his employment was terminated with immediate effect and acknowledges that the application was not lodged withing the 21-day limit. Based on the material before the Commission, it is apparent that Mr Guttenbeil has made his unfair dismissal application 5 days late. As a result, Mr Guttenbeil is required to seek an extension of time in which to file his unfair dismissal application.
Procedural Background
On 1 May 2023, I issued directions for the filing and service of material and these, together with a Notice of Listing outlining that the matter would be heard via Microsoft Teams at 10.00am on 29 May 2023, were sent to the parties. On 26 May 2023, the Digital Court Book (DCB) with the material filed and served in response was emailed to the parties with a reminder that the hearing would be taking place on 29 May 2023 at 10am. At 8.56am on 29 May 2023, an email was sent to the parties confirming matter was listed for hearing at 10.00am, via Microsoft Teams and a link was also provided. Mr Guttenbiel responded by email at 9.30am, stating he would not be attending because he was sick in bed. The hearing was adjourned.
Correspondence from my Chambers to the parties followed, commencing with an email sent to the parties at their nominated email addresses at 9.49am in which it was outlined that the matter would be re-listed for hearing and that any further request to delay the hearing would require medical evidence in support. After some further correspondence, all copied to Mr Guttenbiel, the parties were advised in an email sent to them from my Chambers on 29 May 2023 at 12.04pm, that the hearing would be held at 4.00pm on 30 May 2023 by video using Microsoft Teams.
A Notice of Listing was sent to the parties at 12.09pm on 29 May 2023 and at 4.28pm, an SMS text message was sent to Mr Guttenbiel’s nominated mobile phone number stating:
“The Commission has sent an Amended Notice of Listing with the new date and time of your hearing to your email address. It is now listed for tomorrow at 4.00PM. Please open and read all attachments.”
At the listed time for the hearing on 30 May 2023, Mr Guttenbeil was not in attendance. Three telephone calls were made by my Chambers to Mr Guttenbiel but they were not answered and there was no voicemail facility. Ms Danielle Martin, Workplace Relations Advisor for Saputo Dairy Australia, appeared for the Respondent and made short oral submissions to supplement the material filed and served on behalf of the Respondent.
Section 600 of the Act provides that the Commission may determine a matter before it in the absence of a person who has been required to attend before it. I am satisfied that it is appropriate for me to exercise my discretion and proceed to do so because Mr Guttenbiel was put on notice that the matter would be proceeding at 4.00pm on 30 May 2023. Further, having been so notified, Mr Guttenbiel did not advise that he would not be attending and nor did he request an adjournment.
Legislation
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]
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.
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.
Reason for the delay – s.394(3)(a)
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 the circumstances must be considered.[3]
A dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.[4] In this case Mr Guttenbeil received the termination letter on 31 March 2023, via email. The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 21 April 2023.[5] However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for (in this case) the 5-day delay, or any part of that delay, beyond the 21-day period.[6]
Mr Guttenbeil states in his Form F2 that he was too stressed and didn’t know there was a 21 day limit. While I can accept Mr Guttenbeil may not have had prior experience with either unfair dismissal laws and processes or dealing with the Commission, it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed[7] and unfamiliarity is not exceptional.
I also accept that even after having received the chain of correspondence from the Respondent leading up to his dismissal, Mr Guttenbiel may nonetheless have still experienced some stress and a negative reaction as a result of learning of his dismissal. However, this is not of itself unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions.
Mr Guttenbeil has further stated in his outline of argument that “poor mental health due to work related stress and anxiety and adverse effect of consuming too much alcohol on daily basis has caused me to make poor decision making and judgment.” Additionally, Dr Leila Loni of the Edgewater Medical Centre has previously disclosed in a letter dated 16 December 2022 that Mr Guttenbiel had, at that time, been suffering from depression, work-related stress and insomnia which had caused an inability to concentrate, foggy brain and chronic tiredness. There has however been nothing put before the Commission that details Mr Guttenbiel’s condition at the time of, and/or immediately after, his dismissal.
Ultimately Mr Guttenbiel has produced no material (medical or otherwise) that persuades me that he was so debilitated in the 21-day period after his dismissal had taken effect, that he could not have completed and filed a Form F2 within the 21-day period prescribed for making an unfair dismissal application. Nor is there material or an account to explain the ensuing 5-day delay. The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
I am satisfied Mr Guttenbeil became aware of his dismissal with immediate effect on 31 March 2023 and therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal – s.394(3)(c)
Other than lodging his unfair dismissal application on 26 April 2023, there was no action taken by Mr Guttenbeil to dispute his dismissal after it took effect. This is a neutral consideration.
Prejudice to the employer – s.394(3)(d)
Mr Guttenbiel submits that the Respondent has the resources and capacity to deal with his application and whether it was made within or outside of the required time frame is of no moment. The Respondent contends that allowing an extension of time for the Applicant undermines the unfair dismissal application process for the Respondent. It asserts this is especially so becuase Mr Guttenbeil failed to produce evidence for why he could not meet the legislated 21-day timeframe.
In responding to this criterion, the Respondent provided particulars that were directed to the manner in which Mr Guttenbiel’s absence impacted its business and the possible implications of an order for reinstatement. The Respondent has also submitted that it has had to devote additional time and resources to respond to Mr Guttenbeil’s unfair dismissal application and this imposition would be ongoing, should his application for an extension of time succeed.
I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it very little weight in the consideration of whether there are exceptional circumstances in this case.
Merits of the application – s.394(3)(e)
I am required to “take into account” the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.
Mr Guttenbeil maintains that the Respondent is responsible for the mental health injury he suffered due to harassment and bullying from a former supervisor and with which he has struggled since October 2017. Mr Guttenbeil detailed that he had made workcover claims in relation to injuries sustained on 1 October 2017 and 23 November 2021 and having taken time away from work to get help, had been forced to both change his usual shift from afternoon to day shift upon return and work in the chiller without rotation. Mr Guttenbeil alleges that working in the cold and dull environment of the chiller has caused him stress and anxiety which has become ongoing and this in turn has led him to abuse alcohol and exhibit poor judgement and decision-making.
On 21 November 2022, Mr Guttenbiel requested unpaid leave until 1 September 2023 so that he could obtain family assistance and support in New Zealand, together with free treatment. This request was denied on 23 November 2022. The Respondent stated Mr Guttenbeil did not attend his rostered shift on 21 November 2022 and had instead sent an email request for nine months of unpaid leave to commence immediately. In responding, the Respondent outlined that it required medical evidence supporting the request because leave without pay for such an extended period did not meet the criteria in either its general leave or career break policies. Further, it was stated that the request could not be supported due to the Respondent’s operational requirements. The Respondent says this refusal was reiterated on 24 November 2022 via a telephone call, along with the requirement that Mr Guttenbiel provide evidence to support his absences if he was unable to attend work due to medical reasons. The Respondent argues this requirement reflected Mr Guttenbiel’s obligations under the applicable Saputo Dairy Australia Pty Ltd (Victorian Sites) National Union of Workers Enterprise Agreement 2018[8] and asserts that evidence was sought from Mr Guttenbeil on a number of subsequent occasions. I observe that this agreement includes a requirement for employees to provide a medical certificate or a statutory declaration as evidence that they were unable to attend work when they have multiple days absence due to injury or illness.[9]
On 9 December 2023, the Respondent sent correspondence to Mr Guttenbeil directing him to provide evidence that supported his absence or return to work. In response, Mr Guttenbeil provided medical evidence to support an absence from work from 9 December 2022 until 16 December 2022 only. On 20 December 2022, the Respondent issued Mr Guttenbiel with a first written warning for both his failure to provide evidence to support his absence from 21 November 2022 until 9 December 2022 and his failure to attend work.
Mr Guttenbeil appears to have then been able to provide medical certificates covering the period until 2 January 2023. On 13 January 2023, the Respondent directed Mr Guttenbeil to provide a medical certificate in support his absence from 3 January 2023 onwards.
Mr Guttenbiel responded with an email to the Respondent on 18 January 2023 in which he stated he would no longer be consulting his doctor because he was “sick and tired” of the process and wanted time to himself and with his family, while getting help he needed. Alleging he was “relapsing on treatment from a previous injury”, Mr Guttenbiel claimed the Respondent’s denial of his leave request demonstrated a disregard for his health and well-being and that sending proof was a waste of time. He concluded the correspondence by stating “I am sick of drinking; I am sick of not sleeping properly and mentally, I am tired”. Mr Guttenbiel nonetheless attached a document from the Edgewater Medical Centre. The Respondent confirmed receipt of this document; the letter from Dr Loni dated 16 December 2022. Dr Loni outlined that Mr Guttenbiel had been suffering from depression, work-related stress and insomnia which had caused an inability to concentrate, foggy brain and chronic tiredness and suggested that Mr Guttenbiel request a new role with the Respondent with accompanying adjustments. The Respondent’s request on 20 January 2023 for more information so that it could consider the issue of necessary accommodations was not met with a response from Mr Guttenbiel. Nor was the Respondent’s suggestion that he provide consent for the Respondent to contact Dr Loni directly.
On 13 February 2023 the Respondent issued Mr Guttenbeil with a second written warning for his failures to both respond to the 20 January 2023 requests and provide medical certificates in support of his absences from 3 January 2023 onwards. There having been no response to this further request for such medical certificates, the Respondent sent Mr Guttenbiel a formal show cause letter dated 10 March 2023, allowing him a further week to provide a response.
Mr Guttenbiel acknowledged receipt of the show cause latter but offered no substantive response within the requested timeframe. The Respondent proceeded to advise Mr Guttenbeil, via the termination letter sent by email on 31 March 2023, that his employment had been terminated with immediate effect due to his failure to:
comply with lawful and reasonable management instructions;
act in accordance with the Respondent’s policies regarding leave and absence;
provide the Respondent with a reason for his continued absences; and
meet the basic requirements of his contract with the Respondent.
Mr Guttenbeil was advised that he would be paid four weeks’ notice in lieu.
Mr Guttenbiel has confirmed that he was given two warnings to return to work before his dismissal but argues the treatment he received when trying to better himself while experiencing an unhealthy state of mind, was harsh, unjust and unfair.
The weight to be given to the merits criterion in an application for an extension of time is dependent on the extent to which there is merit in the substantive application.[10] Based on the material before me, I am not able to form a concluded view about the merits of the application. The Respondent has an arguable defence to the unfair dismissal application and Mr Guttenbiel raises various matters in prosecuting the unfairness of his dismissal. There is evidence that would need to be tested, including under cross-examination, if an extension of time were granted and the matter were to proceed. I do not consider the merits to tell for or against an extension of time. They are a neutral consideration.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
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. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
The requirement is that there be exceptional circumstances before time can be extended under s.394(3). This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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.
The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, outlined reasoning also applicable for applications for extensions of time for unfair dismissal applications:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”[11]
Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, 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. 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). Accordingly, Mr Guttenbeil’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms D Martin for Saputo Dairy Australia
Hearing details:
2023.
Melbourne (via Microsoft Teams):
May 30.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[4] Ayub v NSW Trains [2016] FWCFB 5500.
[5] Fair Work Act 2009 (Cth), s.394(2)(a).
[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[8] AE505485
[9] Ibid at clause 40.2(d)(ii).
[10] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].
[11] [2018] FWCFB 901.
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