Timothy Jimmink v Finncare Inc

[2022] FWC 236

[2022] FWC 236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Timothy Jimmink
v

Finncare Inc

(U2021/11363)

DEPUTY PRESIDENT LAKE BRISBANE, 8 FEBRUARY 2022

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed

1. Timothy Jimmink (the Applicant) lodged an application with the Fair Work Commission (the Commission) on 9 December 2021 for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Finncare Inc (the Respondent) on 12 November 2021, which was effective immediately. It was conceded the lodgement of the application was 26 days after the date of dismissal, being five days outside the statutory time limit prescribed by s.394(2) of the Act.

1. The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension and a hearing was held before me on 2 February 2022.

Should a further period be granted?

1. Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if it is satisfied that there are exceptional circumstances, taking into account:

   (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; and

   (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 like position.

1. The test of “exceptional circumstances” establishes a high barrier for an applicant.[1]  In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:

“In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [2]

1. Although Nulty considered the expression “exceptional circumstances” in the context of s.365 of the Act, its reasoning applies to s.394(3).

Applicant’s material

1. The Applicant submits that he should be granted an extension of time because exceptional circumstances exist in his case. He wrote that:

“Since being dismissed on the spot on 12th November, and 1 week before my birthday, i became severely depressed, not knowing when i would be able to obtain further employment as being honest with future employers as to why i no longer had employment. Furthermore, i stressed about my rent payments, my car payments, weather i would have enough finances to be able to see my children and buy them Xmas gifts, wether i would have a roof over my head or to be able to accommodate my 2 cats. my relationship broke down because i was not working, my internet and phone were put on restricted use and i found it hard to get onto my emails and phone the relevant people to ask for advise (which was also very embarrassing to ask as i had to explain that i was fired on the spot for what i strongly feel is unfair) I am still struggling very much these days and find it very difficult to function 100%”.

1. Further, he explained that:

(a)he has been suffering from severe depression and anxiety and was taking medication to cope following the dismissal;

(b)he struggled technologically as his internet access was restricted because he had not paid his bill, his laptop had ceased to work, and his old phone was not very good (but he has since bought a new one);

(c)he is not “tech savvy, i am just a maintenance man that is not up to date with legal laws”;

(d)he acknowledged that he became aware of the dismissal on the day he was dismissed but did not dispute it as it was not until he spoke to family and friends that he became aware of the law against unfair dismissal. Those conversation occurred about two weeks after his dismissal; and

(e)he does not believe that the lateness of his application has caused any prejudice to the Respondent.

Respondent’s material

1. The Respondent submits that the Applicant should not be granted an extension. Further, the Respondent states that:

(a)it was not informed of the Applicant’s mental health concerns at any time during his employment, nor does it seem like it impacted his ability to become aware of the statutory timeframe. In any event, it submits that shock and trauma caused by termination, [3] nor ignorance of the statutory timeframe itself, [4] is sufficient to justify an extension of time;

(b)further, the Respondent asserts that an Applicant’s self-assessment of psychological incapacity is unlikely to be sufficient in demonstrating exceptional circumstances. [5] The Applicant has not provided any evidence to show that his mental health led to an incapacity;

(c)the Applicant was advised of the termination of his employment on 12 November 2021, effective immediately, and based on his length of service, was paid $1,815 in lieu of receiving 3 weeks’ notice period;

(d)the Applicant did not dispute the dismissal at any time prior to lodging the late unfair dismissal application;

(e)it may be that the Applicant had technical difficulties, however he has not demonstrated that he took steps to resolve the technological issues. In previous Commission cases, this has not been a sufficient reason to warrant an extension being granted;[6]

(f)it accepts that prejudice to the employer does not apply in this matter;

(g)the dismissal of the Applicant was fair and thus his application has limited merit. To that end, the Respondent asserts that in June 2021 the Respondent was audited by the Aged Care Commission and found to be non-compliant against several Commission Standards including Standard 5: Organisation’s Service Environment. This included a number of matters that fell within the Applicant’s responsibility. The Respondent attempted to work with the Applicant to remedy the areas of non-compliance, but he failed to complete the tasks assigned to him. The Applicant was informed of the Respondent’s issues with his performance on 28 September 2021 but did not improve. Between 28 September 2021 and 12 November 2021, despite regular meetings with the Acting General Manager about the outstanding maintenance schedule, little progress was made. Ultimately, a meeting was held on 12 November 2021 – he was invited to bring a support person – and he was terminated for refusal to comply with reasonable instruction or direction including any failure to comply with obligations under the Employer’s rules, policies and/or procedures and any directions given by management, and failure to perform to the standard reasonably expected by the Employer; and

(h)the steps taken addressing the Applicant’s performance issues are fair as between him and other employees in similar maintenance positions. 

1. Consequently, the Respondent’s view is that the Applicant’s reasons for delay do not constitute exceptional circumstances that are out of the ordinary, unusual, special or uncommon.

Consideration

Reason for the delay (s.394(3)(a))

1. The Act does not specify what reasons for delay might constitute exceptional circumstances, however decisions of the Commission have referred to an acceptable[7] or a reasonable explanation.[8] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“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 reliant matters and the assignment of appropriate weight to each.” [9]

1. It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[10]

1. While the Applicant was clearly working through and confronting a number of personal difficulties following his dismissal which impacted upon his ability to file an unfair dismissal application, I am not satisfied that they meet the high bar required which is out of the ordinary, unusual, special or uncommon. Many applicants experience significant stress and anxiety following dismissal which is not unusual or out of the ordinary.  Therefore, while I have sympathy for the Applicant and the predicament he found himself in, I find this factor weighs against the granting of an extension. 

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

1. The Applicant became aware of his dismissal on 12 November 2021. This consideration weighs neutrally.

Action taken to dispute the dismissal (s.394(3)(c))

1. It is uncontentious that the Applicant did not take steps to dispute the dismissal until he lodged this application. This factor weighs against an extension of time.

Prejudice to the employer (s.394(3)(d))

1. The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[11] I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

1. In Kornicki v Telstra-Network Technology Group, the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” [12]

1. Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. That said, the process as briefly described by the Respondent appears to have been a measured one. I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

1. The Commission may give consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[13]   The Respondent asserted that the steps taken addressing the Applicant’s performance issues are fair as between him and other employees in similar maintenance positions.  This factor points towards the refusal of an extension.

Conclusion

1. Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.  Accordingly, while I have sympathy for the Applicant who was obviously going through a difficult time, I am not satisfied that his situation reached the high bar of “exceptional circumstances” that the Act requires before an extension of time can be granted.  

1. Accordingly, I order that the jurisdictional objection be upheld and that the Applicant’s application be dismissed. 

DEPUTY PRESIDENT

<PR738066>

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14].

[2] [2019] FWC 25.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank (Watson VP, Smith DP, Lewin C, 15 January 2015) [15].

[4] Rose v BMD Constructions Pty Ltd[2011] FWA 673 [10].

[5] Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting (Sams DP, 4 March 2015) [11]-[13].

[6] Malhotra v People Living with HIV AIDS Victoria Inc T/A Living Positive Victoria (Bissett C, 20 April 2021) [7]-[27].

[7] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].

[8] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].

[9] [2018] FWCFB 901 [39].

[10] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[12] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[13] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 [31].

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