Trevor McGuire v Lyndal Gowland

Case •

[2024] FWC 1219

•

9 MAY 2024
[2024] FWC 1219

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Trevor McGuire
v

Lyndal Gowland

(U2024/1903)

COMMISSIONER CRAWFORD

SYDNEY, 9 MAY 2024

Unfair dismissal application filed out of time – long delay – lack of medical evidence - no exceptional circumstances – application dismissed

Background

  1. Trevor McGuire (Mr McGuire) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he has been unfairly dismissed by Lyndal Gowland (Ms Gowland).

  1. Ms Gowland operates the Lyndal Gowland & Associates law firm as a sole trader. Mr McGuire was employed by Ms Gowland on around 19 March 2021 to perform general maintenance, cleaning, and shredding work at the law firm’s office.

  1. Mr McGuire was dismissed effective 6 July 2023 for alleged serious misconduct. The alleged conduct was removing confidential documents from the law firm office without authorisation.

  1. Mr McGuire and Ms Gowland were in a de facto relationship for around 30 years. The relationship ended in around November 2023 in acrimonious circumstances.   

  1. Mr McGuire’s Form F2 unfair dismissal application was received by the Commission on 21 February 2024.

  1. On 20 March 2024, Ms Gowland filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Mr McGuire’s application was not filed within 21 days of the dismissal taking effect on 6 July 2023 and argued that an extension of time should not be granted.

  1. I issued directions for the filing of material and listed a determinative conference/hearing regarding whether an extension of time should be granted for 3 May 2024 via video.

  1. The directions included an opportunity for the parties to make submissions in support of any requests for permission to be represented at the determinative conference/hearing and an opportunity for any requests to be opposed by the other party. Ms Gowland sought permission to be represented by Carly Stebbing from Resolution123 Pty Ltd. This request was not opposed by Mr McGuire. I granted permission on 2 May 2024 on the basis that it would enable to the matter to be dealt with more efficiently, given its complexity. I was particularly conscious of the breakdown in the personal relationship between Mr McGuire and Ms Gowland, which has led to court proceedings and orders. It would have been extremely difficult to conduct the proceeding if Ms Gowland was not represented.

  1. Mr McGuire represented himself at the determinative conference/hearing on 3 May 2024. Ms Stebbing represented Ms Gowland. 

  1. At the start of the proceeding, I indicated my provisional view was that the proceeding should be conducted as a determinative conference rather than a hearing because a more informal process was likely to assist Mr McGuire, given he was unrepresented and not familiar with the processes. The parties agreed to this course of action. I decided to conduct a determinative conference.

Material filed

Mr McGuire

  1. Mr McGuire relied on the following material in support of an extension of time being granted:

·  A Form F2 unfair dismissal application. Given the form contained evidence about the dismissal and the delay in the filing of the application, I marked the form Exhibit A1.

·  An email from Mr McGuire to the Commission dated 9 April 2024. The email contained evidence concerning the delay in the filing of the application. I marked the email Exhibit A2.

·  A copy of a screenshot of text messages between Mr McGuire and Ms Gowland on 27 July 2023. I marked the screenshot Exhibit A3.

·  A copy of Mr McGuire’s final pay slip for the period of 23 June 2023 to 6 July 2023. I marked the payslip Exhibit A4.

·  A medical letter from Professor Steven Faux dated 19 March 2024. The letter refers to Mr McGuire suffering from a limb condition and major depressive illness. I marked the letter Exhibit A5.

·  A cover letter from Dr Wagdy Latif dated 6 March 2024 which attaches a summary of reports relating to Mr McGuire’s “multiple chronic medical morbidities.” The first two of the attached reports are dated in 2022 and therefore were provided well prior to Mr McGuire’s dismissal on 6 July 2023. There is a letter from Associate Professor Mark Dennis dated 11 December 2023. This report indicates Mr McGuire “seems okay” and refers to minor medical issues. There is also a letter from Professor Faux dated 11 July 2023 which refers to Mr McGuire dealing with ongoing problems with his foot. I marked all these documents Exhibit A6.

·   An email from Mr McGuire to the Commission dated 25 April 2023 with further evidence about his employment with Ms Gowland. I marked the email Exhibit A7.

·  The first two pages of a letter apparently sent by a disgruntled former employee of Ms Gowland. I marked the pages Exhibit A8.

·  An email from Mr McGuire to the Commission dated 29 April 2024 which contains evidence from Mr McGuire in response to material filed by Ms Gowland. I marked the email Exhibit A9.  

  1. Mr McGuire also provided oral evidence during the determinative conference regarding the allegation that he had taken confidential documents from the law firm’s office. Mr McGuire was cross-examined on this additional evidence. 

  1. Mr McGuire made oral closing submissions at the end of the determinative conference.

Ms Gowland

  1. In addition to her Form F3 response, Ms Gowland relied on a witness statement dated 26 April 2024 which had five documents attached. I marked the statement, and its attachments, Exhibit R1.

  1. Ms Gowland was cross-examined on her statement. Due to issues associated with separate legal proceedings and orders, I asked questions of Ms Gowland based on material provided by Mr McGuire.

  1. Ms Gowland relied on an outline of submissions dated 26 April 2024. Ms Stebbing also made oral submissions at the end of the determinative conference.

Extension of time

  1. Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

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

(b)   within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

  1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

  1. Given the dismissal date of 6 July 2023, the 21-day filing period ended on 27 July 2023. Mr McGuire’s application was filed 209 days late on 21 February 2024. As a result, Mr McGuire needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

  1. Under s. 394(3) of the FW Act, the Commission may 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:

(a)   the reason for the delay; and

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

(c)   any action taken by Mr McGuire 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 Mr McGuire and other persons in a similar position.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

Consideration

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 27 July 2023. The delay is the period commencing immediately after that time until 21 February 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

  1. 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.[4]

  1. Mr McGuire 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 Mr McGuire has not provided any reason for any part of the delay.[5]

  1. The reasons identified by Mr McGuire for the delay were the following:

·  Serious medical issues including a foot injury, suffering from COVID-19, blackouts, a reduced immune system, and depression.

·  Having to deal with a dispute about his mother’s will.

·  Having to deal with an underpayment dispute with his former employer, the Public Trustee.

·  Stress associated with the breakdown of his long-term relationship with Ms Gowland.

  1. I am not satisfied Mr McGuire provided sufficient evidence to link the various reasons identified above with an inability to arrange for the filing of an unfair dismissal application until 21 February 2024. Although these various factors undoubtedly would have caused significant personal difficulties for Mr McGuire, there is not sufficient evidence to conclude that the reasons viewed individually or collectively prevented Mr McGuire from being able to arrange for the filing of an unfair dismissal application until 21 February 2024. Further, there is no evidence regarding what allegedly changed in February 2024 to enable Mr McGuire to be able to file an unfair dismissal application. For example, there is no evidence that Mr McGuire returned to full health in February 2024 or that his legal disputes regarding his former employment and his mother’s will ended at this time.

  1. I do not consider Mr McGuire has a satisfactory explanation for what was clearly an extremely long delay in filing his unfair dismissal application. I consider this factor weighs strongly against granting an extension of time. 

Did Mr McGuire first become aware of the dismissal after it had taken effect?

  1. Mr McGuire accepted he was aware that his employment had ended on 6 July 2023. I consider this to be a neutral factor.

What action was taken by Mr McGuire to dispute the dismissal?

  1. Mr McGuire accepted he did not take any action to dispute the dismissal besides filing an unfair dismissal application. I consider this to be a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. Ms Gowland referred to her law firm being a small business with cash flow issues in support of an argument that she will suffer prejudice if an extension of time is granted. Ms Gowland also referred to the stress associated with having to interact with Mr McGuire given the breakdown of their personal relationship.

  1. I do not consider I have sufficient evidence about the financial state of Ms Gowland’s business to conclude that any additional prejudice would be caused if an extension of time is granted.

  1. I accept that considerable stress will be generated for Ms Gowland if she must continue dealing with this application, given the acrimonious breakdown of her relationship with Mr McGuire and the legal proceedings and orders associated with this. However, that may also be the case for Mr McGuire and there is some medical evidence of him suffering from mental illness because of the relationship breaking down. 

  1. I do not consider it is appropriate for me to delve into these personal matters given they are being dealt with by the courts. 

  1. I consider prejudice to be a neutral factor.

What are the merits of the application?

  1. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).[6]

  1. There is significant factual dispute between Mr McGuire and Ms Gowland regarding whether he deliberately took confidential documents from the law firm’s office. I am not in a position at this stage to resolve this factual dispute.

  1. I find the merits of Mr McGuire’s application to be neutral factor.

  1. As indicated to Mr McGuire during the determinative conference, an unfair dismissal application is not the appropriate way to resolve any disputes about deficient records and underpayments allegedly arising from his employment with Ms Gowland. As a result, these potential issues are not points in favour of the merits of this application. 

Fairness as between Mr McGuire and other persons in a similar position

  1. As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[7] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[8]

  1. Neither party advanced a persuasive argument regarding this factor. I consider this to be a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

  1. Briefly, 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.[9] 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.[10] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[11]

  1. Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

  1. I have not found that any of the relevant factors weigh in favour of an extension of time being granted and I have found that Mr McGuire does not have a satisfactory explanation for what was an extremely lengthy delay in filing the application. I do not consider it appropriate to grant an extension of time given these findings.  

Conclusion

  1. I decline to grant an extension of time for the filing of the application.

  1. The application is dismissed.

COMMISSIONER

Appearances:

Mr McGuire representing himself.

Ms Stebbing from Resolution 123 Pty Ltd for Ms Gowland. 

Determinative conference:

3 May 2024.
Via Video.


[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[7] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].

[8] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[11] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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