Wayne Burgess v Qube Bulk Pty Ltd
[2024] FWC 1088
•3 MAY 2024
| [2024] FWC 1088 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Wayne Burgess
v
Qube Bulk Pty Ltd
(U2024/3744)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 3 MAY 2024 |
Application for an unfair dismissal remedy – application filed 6 days out of time – circumstances not exceptional – extension not granted – application dismissed.
On 2 April 2024, Mr Wayne Burgess made an application for an unfair dismissal remedy, pursuant to s.394 of the Fair Work Act 2009 (the Act), by lodging a Form F2 – Unfair Dismissal Application (Form F2). While the Respondent named in the Form F2 is Qube Bulk, I received confirmation that its correct legal name is Qube Bulk Pty Ltd. Accordingly, pursuant to s.586 of the Act, I have corrected the name of the Respondent so that it is recorded as being Qube Bulk Pty Ltd (Respondent). The Form F2 outlined that Mr Burgess was notified of his dismissal and that dismissal took effect on 6 March 2024. The period of 21 days to make application for an unfair dismissal remedy provided for in s.394(2)(b) ended at midnight on Wednesday 27 March 2024. The application made by Mr Burgess was therefore filed 6 days outside this 21-day period. Mr Burgess therefore requires the Commission to allow him an extension of time (s.394(2)(b)).
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. 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.[1] 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.[2]
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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
Reason for the delay – s.394(3)(a)
The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all the circumstances must be considered.[3]
The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on Wednesday, 27 March 2024. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 6-day delay, or any part of that delay, beyond the 21-day period.[4] Mr Burgess raised five matters in order to explain the delay.
Firstly, Mr Burgess gave evidence that his mother passed away on 12 January 2024, and that, in the period that followed, he was dealing with this loss. Mr Burgess said his mental health and general well-being were impacted and he was required to make funeral plans, arrange flights back home and manage a full workload.
Secondly, Mr Burgess said he resumed taking a 10mg dose of Escitalopram Sandoz each day for anxiety and depression on 14 January 2024 as a response to the pressure he was under at work. This coincided with the business transitioning from Kalari Transport to the Respondent and him being placed on a performance improvement plan. Mr Burgess said this medication was necessary because he was not in the “correct headspace”.
Thirdly, Mr Burgess said his wife was rushed to hospital with pneumonia and other complications on 11 March 2024, and they were dealing with this until 15 March 2024. Mr Burgess also said his wife had resigned from one of her part-time jobs a week earlier because of her health issues and this had placed the couple in an extremely difficult financial situation.
Fourthly, Mr Burgess explained that he had commenced new employment on the eve of the Easter long weekend. The new employment required Mr Burgess to work nightshift over Easter and he said was under the misapprehension that there having been a long weekend would have afforded him a longer timeframe to lodge his application. Mr Burgess also said the Easter long weekend was a distraction and accounted for four of the 6-day delay period.
Finally, Mr Burgess said he became aware there was a time limit imposed on the filing of an unfair dismissal application, but he mistakenly thought the time period allowed was 28 days.
As to these reasons:
a)I observe that the passing of Mr Burgess’ mother occurred nearly 8 weeks prior to his termination, and I accept that he has deeply grieved this loss. However, I am not persuaded that Mr Burgess was so debilitated that he was unable to complete and file a Form F2 during the 21-day period that followed his dismissal on 6 March 2024. I note, for example, that during this period, Mr Burgess was looking for new employment and was able to secure some.
b)Similarly, I have noted that Mr Burgess was taking medication at the time of his dismissal but again, I am not persuaded this rendered him unable to complete and file a Form F2 during the 21-day period following his dismissal. I observe that during the period following 14 January 2024, through to the filing of the unfair dismissal application, the Applicant was not consulting a medical practitioner for ongoing treatment for anxiety and depression.
c)I accept that Mr Burgess’ wife was hospitalised during the 21-day period following his dismissal but note that this and its aftermath accounted for only 5 days of that period.
d)It is to Mr Burgess’s credit that he secured new employment, however the Act contemplates employees who have been dismissed taking such steps to mitigate any loss and earning remuneration from new employment (ss. 392(2)(d) and 392(2)(e)). Further, I am not persuaded that the Easter long weekend was an unforeseeable or insurmountable distraction that impacted the ability of Mr Burgess to file his unfair dismissal application.
e)I consider Mr Burgess’ mistaken belief that he had 28 days within which to make application for an unfair dismissal remedy to have been the overwhelming contributor to the 6-day delay, however it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair dismissal application within the time prescribed.[5] Unfamiliarity is not exceptional.
Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an unfair dismissal application that provide a credible reason for the 6-day period of delay and nor do I consider there was an acceptable or reasonable explanation for the 6-day delay.
The absence of an acceptable or reasonable explanation weighs against an extension of time.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
I am satisfied that on 6 March 2024, Mr Burgess became aware of his dismissal with immediate effect. Mr Burgess therefore had the full period of 21 days to lodge his unfair dismissal application. This consideration is a neutral consideration.
Action taken to dispute the dismissal – s.394(3)(c)
Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.[6] I am satisfied Mr Burgess telephoned Mr Ben Rouse, Maintenance Manager East for the Respondent, on 6 March and asked Mr Rouse to reconsider the decision that had been made to terminate his employment only to be told that the matter was out of his (Mr Rouse’s) hands. This was the extent of the action taken by Mr Burgess to dispute his dismissal when it came to dialogue or correspondence with the Respondent. As Mr Burgess took some action to dispute his dismissal, this factor weighs in favour of a finding that there are exceptional circumstances but not to any significant degree.
Prejudice to the employer – s.394(3)(d)
Mr Burgess argued that the Respondent would not be disadvantaged by the later receipt of his application. The Respondent accepts that it has not experienced any substantial prejudice.[7] I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. The consideration is a neutral consideration.
Merits of the application – s.394(3)(e)
I am required to “take into account” the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.
Mr Burgess was employed by the Respondent as workshop manager at its Gladstone Depot. On 4 January 2024, Mr Burgess was issued with a performance improvement plan in response to concerns held about his management of that facility. On 13 February 2024, the Respondent’s National Operations Manager conducted a site visit and outlined multiple safety and compliance concerns. This was followed by the issuing of a show cause letter to which Mr Burgess was asked to provide a written response. On 29 February 2024, Mr Burgess replied to the show cause letter with a detailed response to each of the allegations made against him and he raised certain factors in mitigation. In particular, Mr Burgess asserted there were inadequate staffing levels, a requirement for more staff training and unsuitable storage facilities. On 6 March 2024, the Respondent sent Mr Burgess the Termination Letter outlining that his employment would be ending with immediate effect, based on a finding that he had failed to meet the inherent requirements of his position as workshop manager.
Based on the material before me, I am not able to form a concluded view about the merits of the application. Mr Burgess raises various matters in prosecuting the unfairness of his dismissal and the Respondent has raised matters going to its defence. I accept the evidence would need to be tested, including under cross-examination, if an extension of time was granted and the matter was to proceed. The merits of the application would depend on factual findings made at the final hearing. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. This consideration is a neutral consideration.
Conclusion
The requirement is that there be exceptional circumstances before time can be extended under s.394(3). This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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.
The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, outlined reasoning also applicable for applications for extensions of time for unfair dismissal applications:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.”[8]
Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, Mr Burgess’ unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
W Burgess, Applicant.
I Khan for the Respondent.
Hearing details:
2024.
Melbourne (via Microsoft Teams):
May 2.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[7] DCB at page 68.
[8] [2018] FWCFB 901.
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