Stephen Gaskin v St John of God Heath Care

[2021] FWC 6139

[2021] FWC 6139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Gaskin
v
St John of God Heath Care
(U2021/7753)

COMMISSIONER WILLIAMS PERTH, 15 OCTOBER 2021

Application for an unfair dismissal remedy

[1] Mr Stephen Gaskin (Mr Gaskin or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is St John of God Health Care Inc (the Respondent).

[2] The Application states that Mr Gaskin was notified of his dismissal on 29 July 2021 and that the dismissal took effect on same date. The application to the Fair Work Commission (the Commission) was made on 1 September 2021.

[3] It appears that the application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394(2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[5] Consequently, the Commission directed the Applicant to provide a written response to the matters to be considered under section 394(3) of the Act. The Applicant provided a written response, and the Respondent has also provided a response to the application, including the extension of time question.

[6] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Background facts

[7] The Melbourne Registry of the Commission received an email from the Applicant on 1 September 2021 with the Subject “Unfair Dismissal Application – Gaskin”. Attached to the email were a completed F2 unfair dismissal application form, a letter entitled Termination of Employment -Notice of Redundancy dated 29 July 2021 from the Respondent to the Applicant and an employment separation certificate.

[8] The F2 form had been completed by the Applicant and dated 18 August 2021.

[9] On 2 September 2021 the Commission’s staff sent a letter to the Applicant advising it had received his application but that it was missing some necessary information. A voicemail was left for the Applicant regarding the same issue also on 2 September 2021 and an SMS message was sent to him on the same date.

[10] Ultimately there was a phone conversation with the Applicant about the missing information and payment for the application of 17 September 2021 and the same day he also provided by email to the Commission’s Perth registry the missing information which was an email contact for the Respondent.

[11] As noted above the Commission by email to the Applicant on 8 October 2021 directed him to respond in writing explaining why he considered his circumstances were exceptional with supporting evidence for the Commission to decide whether an extension of time to make the application would be granted.

[12] The following day, 9 October 2021, the Applicant by email provided a response to the Commission’s direction in regards to the delay in the application being lodged.

The reason for the delay

[13] The Applicant’s explanation for the delay in summary is as follows.

“The original application was lodged on the 20th day of 21 days, the 18th August, which is clearly stated on the application to FWC.

The 18^th August was the last date chosen by myself to submit my application prior to its closing, as a last resort and getting an answer directly from my employer as to the reason for my dismissal.”

[14] The Applicant’s email explains there was a meeting between his partner and representatives of the Respondent on 19 August 2021 after which he chose to continue with the claim for an unfair dismissal remedy.

[15] The balance of the email concerns his view that no reason has been given for his redundancy and his view about his positive performance and conduct compared to other employees.

[16] Considering the above I am satisfied that the application was made on 1 September 2021 and as such was made more than 21 days after the Applicant’s dismissal took effect on 29 July 2021.

[17] The fact the Applicant may have filled out the F2 form on 18 August 2021 does not change the fact that he did not make the application to the Commission until he emailed the application to the Commission on 1 September 2021.

[18] The Applicant, for his own reasons, chose to hold off from making the application until 1 September 2021.

[19] The fact he may have been uncertain of the reason for his dismissal did not prevent him from making the application within the 21-day timeframe.

[20] The Applicant has not provided an acceptable reason for the delay in making his application. What occurred was not an exceptional circumstance.

Did the Applicant first became aware of the dismissal after it had taken effect ?

[21] The Applicant was made aware of his dismissal at the time it took effect.

Any action taken by the person to dispute the dismissal

[22] The Applicant has disputed the dismissal by asking for an explanation from the Respondent.

Prejudice to the employer (including prejudice caused by the delay)

[23] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[24] It appears from the application that the Respondent was reducing the number of security team members it required from 12 down to 10.

[25] The Respondent went through a process of choosing two guards who would be made redundant. The Applicant, following that process, was notified that he was one of those who would be made redundant.

[26] The Applicant in effect is arguing that no reason has been given to him as to why he was chosen. He argues the selection was flawed and there should have been an interview or formal discussions. Referees were not contacted. He argues that he has a good record and should have retained his job.

[27] The Respondent says that the Applicant was made redundant as part of a restructure. Various factors were considered when assessing the suitability of each candidate to be retained. The Respondent does not follow a last in first out approach to redundancy. It submits the Applicant was consulted as required by the enterprise agreement and was paid the required redundancy payment.

[28] Essentially the Applicant’s argument is that he should not have been selected for redundancy. Some other employee should have been made redundant instead of him.

[29] The difficulty for the Applicant is that the Commission has previously held that the process for selecting employees for redundancy is not relevant to whether the dismissal was a genuine redundancy or whether there was a valid reason for dismissal. 1

[30] The employer has the right to decide which employees will be made redundant and the Commission is not empowered to review their process or their selection decision.

[31] Consequently, the Applicant’s case in this instance is very weak and his application would in all likelihood be rejected if it proceeded to a court hearing.

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

[32] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[33] The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for him to make his application beyond the statutory time limit of 21 days.

[34] I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[35] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Fair Work Commission and must be dismissed.

[36] An Order [PR734953] to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR734952>

 1   UES (Int’l) Pty Ltd v Harvey [2012] FWAFB 5241 at [26]–[27].