Steven Sagar v Qube Ports Pty Ltd

[2021] FWC 49

[2021] FWC 49

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Sagar
v
Qube Ports Pty Ltd
(U2020/15575)

DEPUTY PRESIDENT COLMAN MELBOURNE, 6 JANUARY 2021

Unfair dismissal application filed out of time – application dismissed

[1] This decision concerns an application by Mr Steven Sagar for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009(Cth) (Act). Mr Sagar’s employment with Qube Ports Pty Ltd (company) was terminated with effect from 4 November 2020. His application was lodged on 4 December 2020. Section 394(2) of the Act states 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 s 394(3). The period of 21 days ended at midnight on 25 November 2020. Mr Sagar asks the Commission to grant a further period for the application to be made under s 394(3). The company opposes this request.

[2] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances’. This expression was considered in Nulty v Blue Star Group Pty Ltd (Nulty), 1 where the Full Bench stated that, to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a combination of ordinary factors which, although individually of little significance, when taken together can be considered exceptional.

[3] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 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.

[4] 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.

[5] I will consider each of these matters as they pertain to Mr Sagar’s application.

Reason for the delay

[6] The Act does not specify what reasons for delay tell in favour of granting an extension of time however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable’ explanation. Mr Sagar stated in his application that he was unable to lodge his application on time due to delays in the post connected with the COVID-19 pandemic. Mr Sagar did not explain this submission. His application was in fact lodged by email. Mr Sagar also said that he had been depressed and too stressed to take further action to challenge his dismissal, and that he had been in pain due to injuries he had sustained over the years, which had led to his dismissal. However, Mr Sagar did not explain why these matters prevented or impeded the timely lodgement of his application, nor did he submit any medical evidence. Mr Sagar also said that he was not aware of the 21-day time limit for filing unfair dismissal applications. But this is not an acceptable reason for delay. Information on unfair dismissal applications and the 21-day period for lodgment is available on the Commission’s website.

[7] I am not persuaded that these matters, individually or together, provide an acceptable or reasonable explanation for the delay. The absence of an acceptable or reasonable explanation for the delay weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[8] Mr Sagar’s application stated that he was notified of his dismissal on 6 November 2020. At the hearing, Mr Sagar was unclear about when he was notified of his dismissal, but he acknowledged receiving a letter from the company dated 2 November 2020. The company produced this letter, which terminated Mr Sagar’s employment, as well as a delivery receipt for the letter dated 4 November 2020. The company also submitted an email message from its health and safety representative, Mr Duncan Aitchison, to a manager, Mr Russell Rato, stating that he had received a call from Mr Sagar on 4 November 2020, during which Mr Sagar stated that he had received the termination letter and that he was going to sue the company. Mr Sagar did not deny having this conversation with Mr Aitchison. I find that Mr Sagar’s dismissal took effect on 4 November 2020, and that he was notified of the dismissal on the same day. Mr Sagar therefore had the benefit of the full 21-day period to lodge his application. This is a neutral factor in considering whether to extend time.

Action taken to dispute the dismissal, prejudice to employer

[9] Mr Sagar’s statement to Mr Aitchison that he intended to sue the company may be regarded as action taken to dispute his dismissal. This weighs in favour of an extension of time.

[10] There is no evidence of prejudice to the employer arising from the delay in lodgement, or otherwise. To the extent that this favours an extension of time, I attribute it little weight.

Merits of the application

[11] Mr Sagar contends that his dismissal was unfair because he did not have an opportunity to consult medical specialists about his injuries and make submissions to the company about his capacity to perform certain duties. He said that there was work that he was able to perform and that the company should have provided him with work. The company contends that Mr Sagar was dismissed because of his incapacity to perform the inherent requirements of his job as a stevedore, and that over a lengthy period Mr Sagar failed to provide medical updates on his fitness for work. The merits of the application turn on questions of evidence that would need to be tested if an extension of time were granted and the matter were to proceed. Much would depend on factual findings. Based on the limited material before me, I am not able to make any firm assessment of the merits. I consider that Mr Sagar has at least an arguable case that he was unfairly dismissed and that the company has a prima facie defence. I do not consider the merits to tell for or against an extension of time. It is a neutral consideration.

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

[12] Applications to extend time turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Sagar and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[13] Having regard to the matters that I am required to take into account under s 394(3), and all of the matters raised by Mr Sagar, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. There is therefore no basis for me to extend time. I decline to grant an extension of time under s 394(3). Mr Sagar’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Sagar for himself
D. Coulton for Qube Ports Pty Ltd

Hearing details:

2021
Melbourne
January 6

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 1   [2011] FWAFB 975