Terry McSwain v Prime Roofing Pty Ltd AFT Clifford Hickson Family Trust T/A Prime Roofing

[2022] FWC 1433

[2022] FWC 1433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Terry McSwain
v

Prime Roofing Pty Ltd AFT Clifford Hickson Family Trust T/A Prime Roofing

(U2022/4035)

COMMISSIONER MIRABELLA MELBOURNE, 8 JUNE 2022

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

1. Mr Terry McSwain (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Prime Roofing Pty Ltd AFT Clifford Hickson Family Trust T/A Prime Roofing (Respondent).

1. Before granting a remedy, the Commission must be satisfied that the application was not made out of time.

1. This published decision reflects the decision I gave ex tempore on 8 June 2022 with corrections for grammatical, syntactical and any other insignificant errors.

1. An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

1. The parties agree, and I so find, that the dismissal took effect on 4 March 2022 and the application was made on 5 April 2022, some 32 days after the alleged dismissal took effect. I am, therefore, satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.

1. The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Act. Those matters are:

(a)   the reason for the delay;

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

(c)   any action taken by the Applicant 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 Applicant and other persons in a similar position.

1. As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.

The first matter is the reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 25 March 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 5 April 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.

1. As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.

1. As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.

1. The Applicant submitted that the delay was for the following reasons:

·   On 1 March 2022, the Applicant’s brother suffered an overdose and went to hospital “for weeks” and the Applicant was living with his extended family;

·   The Applicant has been waiting for a colonoscopy since October 2021 which he says has been very stressful for him and his family; and

·   The Applicant was unaware that he was required to file his application within 21 days of dismissal.

1. I accept these are the reasons the Applicant gives for delaying the filing of his application.

1. In relation to the reason for the delay, the Respondent submitted that the Applicant has not provided a reasonable explanation and that the Applicant has failed to submit any evidence in support of his reasons for the delay.

1. I find that the Applicant did not file any evidence in support of his submissions regarding the reasons for the delay.

1. Further, at the determinative conference, the Applicant gave evidence that he first contacted Unfair Dismissals Australia on 18 March 2022, but that he did not become aware of the 21-day requirement to file an application for an unfair dismissal remedy until a later time.

Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect

1. The Applicant initially alleged, in his Form F2 Application, that he first became aware of his dismissal on 22 March 2022 and that his dismissal had taken effect that same day. The Applicant had listed 22 March 2022 as the date of his dismissal because this was the day he received his last payslip and he believed that this indicated the date of his dismissal. This was relied upon at a conference held prior to the determinative conference.

1. During the determinative conference, the Applicant clarified his position and said that he received his last pay on 10 March 2022. This was confirmed by the Respondent. His explanation for the entry of 22 March 2022 on the Form F2 Application was words to the effect of “I was thinking that Unfair Dismissals Australia added another two weeks”.

1. The Respondent submits that the Applicant resigned on 4 March 2022.

1. In a conference held in this matter on 23 May 2022 and at the determinative conference, the Applicant confirmed that he did in fact resign on 4 March 2022 and that he knew that he would not be returning to work for the Respondent.

1. Having considered the evidence, I find that the Applicant first became aware of the dismissal on 4 March 2022, the day he resigned, being the effective date of dismissal for the purposes of this application.

The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal

1. In this matter, the Applicant resigned on 4 March 2022. It is not in dispute, and I so find, that the Applicant did not take any actions to dispute his dismissal prior to making the application on 5 April 2022, save for communicating with Unfair Dismissals Australia on 18 March 2022.

I must now consider the prejudice to the employer (including prejudice caused by the delay)

1. The Respondent submits that it would suffer prejudice if an extension of time were granted.

1. Specifically, the Respondent submits it would suffer prejudice because of the unnecessary time and costs involved in having to defend the Applicant’s unfair dismissal application. The Respondent submits that this factor is neutral in the consideration for the granting of an extension of time.

1. In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.

I will now turn to the merits of the application

1. The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

1. In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

1. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I, therefore, find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

1. In all the circumstances, I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises.

I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings

1. As set out by the Full Bench at paragraph 13 in the decision of Nulty v Blue Star Group at [2011] FWAFB 975, 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. 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.

1. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist (see the Full Bench’s decision in Becke v Edenvale Manor Aged Care at [2014] FWCFB 6809).

1. Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist. This is made clear in the Full Bench decisions of Ellikuttige v Moonee Valley Racing Club at [2018] FWCFB 4988 and Weir v Hydro-Chem at [2017] FWCFB 758.

1. Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application (see the Full Bench decisions in Ellikuttige v Moonee Valley Racing Club at [2018] FWCFB 4988 and Miller v Allianz Insurance Australia at [2016] FWCFB 5472).

1. While I accept that the Applicant may have been stressed during some or all of the period of the delay due to his brother’s overdose and waiting for a colonoscopy, absent any medical evidence detailing the impact the illness had on the Applicant’s capacity to lodge the application, I do not accept the explanation as preventing the Applicant from lodging the application on time or at a time earlier than the date on which this application was lodged.

1. In regard to the Applicant’s family living arrangements, whilst it may have been a challenge to be living with his extended family, this situation had existed prior to his resignation and, in any case, is not exceptional.

1. Further, the Applicant did seek legal assistance within the 21-day period from professional advisers. His evidence that he was unfamiliar with the 21-day period within which he had to lodge is not an exceptional circumstance.

1. Having regard to all of the matters at subsection 3 of section 394 of the Act, I am not satisfied that there are exceptional circumstances.

Conclusion

1. Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is, therefore, dismissed. An order to that effect will be issued separately.

COMMISSIONER

Appearances:

Mr T. McSwain on his own behalf

Ms D. Sinha for the Respondent

Hearing details:

2022

Melbourne (video using Microsoft Teams)

8 June.

Final written submissions:

3 June 2022 (Respondent)

6 June 2022 (Applicant)

Printed by authority of the Commonwealth Government Printer

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