Todd Smith v Tricare Ltd
[2023] FWC 1585
•29 JUNE 2023
| [2023] FWC 1585 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Todd Smith
v
Tricare Ltd
(U2023/4133)
| COMMISSIONER DURHAM | BRISBANE, 29 JUNE 2023 |
Application for an unfair dismissal remedy – whether to extend time – extension granted
On 13 May 2023, Mr Todd Smith (the Applicant/Mr Smith) made an application to the Commission for an unfair dismissal remedy. He contends that he was dismissed by Tricare Ltd (the Respondent) on 21 April 2023.
Section 394(2) of the Fair Work Act 2009 (Cth) (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 section 394(3).
As the Applicant lodged his application on 13 May 2023, it appears that the application may have been lodged outside of the 21-day period.
In order for the application to proceed, Mr Smith requires the Commission to grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a Determinative Conference 23 June 2023. Both the Applicant and the Respondent gave oral evidence and sought that the material they had already filed be received into evidence.
The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
Ms Susan Patchen, Human Resources Business Advisor, and Ms Davida Webb, Aged Care Manager, provided oral evidence on behalf of the Respondent.
All the material relied upon by both the Applicant and the Respondent has been taken into consideration.
Extension of Time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
·the reason for the delay;
·whether the person first became aware of the dismissal after it had taken effect;
·any action taken by the person to dispute the dismissal;
·prejudice to the employer (including prejudice caused by the delay);
·the merits of the application; and
·fairness as between the person and other persons in a similar position.
Relevant Factors
Reason for the Delay
The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an “acceptable” or “reasonable explanation” of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[2]
Mr Smith’s argument for an extension of time is two-fold. Firstly, he argues that several factors outside of his control led to delays in the preparation of his material and secondly, that his application was in fact lodged within the prescribed time.
With respect to the delays outside of his control, Mr Smith provided evidence that during the 21-days between his dismissal and the deadline for lodgement, his ability to prepare his application was impacted due to:
·delays he experienced in receiving a separation certificate, statement of service and pay slips from the Respondent; and
·his contracting a gastroenteritis illness which lasted for about a week.
With respect to the first point above, Mr Smith confirmed during the determinative conference that he received formal notification of his termination on 21 April 2023. Whilst I accept that Mr Smith may have required additional documentation for other purposes, including registering with Centrelink, all that was required in order for him to lodge this application was the date of the dismissal which he did have.
Turning to the second dot point above, I note that Mr Smith has provided a medical certificate indicating that he was unable to work for the period 1 May to 5 May 2023, due to a gastroenteritis illness. However, I do not accept that this would have rendered him incapacitated to the point that he was unable to prepare and lodge his application. This is further evidenced by the facts noted above which demonstrate that Mr Smith was capable of interacting with the Respondent during this same period of time, sending multiple emails in his efforts to receive his separation documentation.
Having considered the evidence, I do not accept that either the Applicant’s temporary illness, or the delay in receiving some of his termination paperwork are valid reasons for the delay.
Turning to Mr Smith’s argument that he did in fact lodge his application on time. It is noted that the Commission’s lodgement advice indicates that the application was lodged at 12:00am on 13 May 2023. More specifically, the lodgement advice indicates the time as 00:00:48, some 48 seconds after the midnight deadline.
Evidence provided by Mr Smith suggests that, up until the afternoon of Friday 12 May 2023, he had been under the impression that he had until Monday 15 May to lodge his application. This was due to conflicting advice he says he received from the Commission's client services team relating to the treatment of a Public Holiday that occurred during the 21-day period. Whilst I am unable to confirm precisely what Mr Smith was advised, I accept that Mr Smith was of the understanding that he had until Monday 15 May to lodge his application.
Mr Smith gave further oral evidence that at some time on the afternoon of Friday 12 May, he was talking through his application with a friend who had been assisting him. Mr Smith stated that the friend suggested to him that he should re-check the lodgement date, as they were “pretty sure it’d be the Friday”.
Mr Smith’s account of the afternoon of 12 May 2023 supports his contention that around 3.00pm that afternoon, after several calls to the Commission he received confirmation that his application did in fact have to be lodged before midnight 12 May 2023. Mr Smith has provided a copy of his phone log which shows three separate calls made to the Commission's client services number, one at 3.18pm, one at 3.23pm and one at 3.32pm.
I am satisfied that upon making the realisation that the deadline for his application was midnight that same day, Mr Smith then did everything in his power to lodge the application on time. Mr Smith accepts that he was cutting it fine, but is certain that his online application was lodged just before midnight.
As noted above, the official lodgement time recorded in the Commission’s online lodgement system (OLS) indicates that the application was lodged 48 seconds after midnight (00.00.48).
In support of his contention that he submitted his application before midnight, Mr Smith tendered a screenshot of his bank statement which shows that the payment for his application was processed by his bank on 12 May 2023.
I have made inquiries with the relevant staff responsible for the Commission’s OLS and have been advised that the order in which an online application is processed is as follows:
· the applicant fills out the online form, adding all their relevant information,
· if the user has elected to pay for an application and has completed their form they press the ‘Submit Application’ button.
· the applicant will then see a note that says “The payment may take a few minutes to process”
· the user is then presented with a credit card page to complete.
· once those details are entered and they select ‘Continue’, the credit card details are checked and the user has a chance to validate the information before clicking.
· the screen then displays a “Transaction Approved” message, and the user can close the window.
· when the window is closed the system will generate two emails to the user, one including a copy of the receipt and one with a copy of the F2 smart form. The timestamp on these may be different to the time stamp on the transaction approved screen.
· the two emails generated record the date and time of the lodgement and the payment. Generally, these times are the same but can differ if the user doesn’t close the window or tab quickly. The system will catch up, but the recorded date/times may not match exactly.
Essentially, I am advised that the OLS processes payment and lodgement together, but the sequence of the program means the payment may get processed first in order to trigger the application coming across ‘complete’.
The Commission’s OLS team have reviewed Mr Smith's case and have confirmed that it is possible that he may have got to the payment page before midnight and that the processing of the application and payment may have taken enough time to make the application out of time. They don’t however have any additional data to indicate whether this was or wasn’t the case.
A review of Mr Smith’s OLS Activity Log does show that his account was last accessed 12 May 2023. There is no record of activity on 13 May 2023.
In the particular circumstances of this case, I consider it is likely that Mr Smith hit the “Submit Application” button before midnight 12 May 2023. This consideration weighs in favour of an extension of time in this case.
Whether the person first became aware of the dismissal after it had taken effect
The parties both acknowledge that Mr Smith was advised both verbally and in writing of his termination on 21 April 2023. On that basis, I have treated this to be a neutral consideration in this case.
Action to Dispute the Dismissal
No direct evidence going to this point was provided by either party, on that basis, I have treated this to be a neutral consideration in this case.
Prejudice to the Employer
There is no evidence of any prejudice to the Respondent arising from a 48 second delay. This was acknowledged by the Respondent in their oral evidence. This consideration weighs in favour of extension of time in this case.
Merits of the Application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits to be a neutral consideration in this case.
Fairness as between the person and other persons in similar position
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
In summary, having found that it is likely that Mr Smith did in fact submit his application via the OLS within the required timeframe, and noting that the granting of a 48 second extension of time would not prejudice the employer, I am satisfied that there are exceptional circumstances in this case.
As such, additional time can be allowed for Mr Smith to make his application. This means that Mr Smith is entitled to apply for an unfair dismissal remedy.
In these circumstances, pursuant to s.394(3) of the Act, I order that the time for Mr Smith to make his unfair dismissal application under s.394 of the Act to the Commission be extended to the recorded actual date of lodgement.
COMMISSIONER
Appearances:
T. Smith for himself
S. Patchen for the Respondent
D. Webb for the Respondent
Hearing details:
2023
Brisbane
23 June
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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