Wayne Harvey v The Highgate Group
[2023] FWC 601
•14 MARCH 2023
| [2023] FWC 601 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Wayne Harvey
v
The Highgate Group
(U2023/646)
| COMMISSIONER MCKINNON | SYDNEY, 14 MARCH 2023 |
Application for an unfair dismissal remedy – effective date of dismissal – extension of time.
Introduction
Mr Wayne Harvey worked for The Highgate Group Pty Ltd (Highgate) as Operations Manager from 27 June 2022 until his dismissal on performance grounds on 21 December 2022. Prior to 27 June 2022, Mr Harvey worked for Highgate for a short period through a recruitment agency, “Optimal”, commencing on 6 June 2022. The period of service with Optimal does not appear to count as service with Highgate, because there is no evidence that Optimal and Highgate are associated entities or that there was any transfer of business from Optimal to Highgate.[1]
On 27 January 2023, Mr Harvey applied for an unfair dismissal remedy. Applications of this type must be made within 21 days after the dismissal “took effect”, or if there are exceptional circumstances, such further period as the Commission allows.[2] Mr Harvey’s application was made 16 days late.
The question is whether additional time should be granted to Mr Harvey to make his application. On 14 March 2023, I decided not to grant additional time to Mr Harvey.[3] These are my reasons.
Extension of time
Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) provides 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. A further period can only be allowed if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[4]:
“[13] 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.”[5]
Section 394(3) of the Act sets out the matters that must be taken into account in considering whether there are exceptional circumstances. These are:
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 delay: The reason given for the delay in making his application is that Mr Harvey had a rough/tough start to 2023 and would have made his application sooner if his circumstances had been different. Further, he was dismissed two days before “the Christmas break”, he was unaware about his legal rights and was in shock. He started researching his options after Boxing Day but ceased on 30 December 2022 when his mother became ill.
Mr Harvey’s mother was admitted to Hospital on Friday 30 December 2022 with heart issues. She was transferred to another hospital on Saturday 31 December 2022. Mr Harvey picked up her personal effects from her home in Colo Vale and met her at the hospital. From 30 December 2022 to 16 January 2023, his mother was in his consistent care and/or living with him.
On Wednesday 4 January 2023, Mr Harvey took his mother to another hospital where she was admitted to the intensive care unit. She was discharged the following day. On Tuesday 10 January 2023, Ms Harvey’s mother underwent surgery. She stayed with Mr Harvey at his home in Dee Why until Monday 16 January 2023.
Mr Harvey started seeking legal advice about his termination on Tuesday 16 January 2023. He contacted over 12 lawyers, “Fair Work”, NSW Law Access, and finally a community Legal Aid service. He was repeatedly told that his application was out of time and had “no hope”. Finally, he spoke to a Sydney Lawyer who advised him to make an unfair dismissal application because he had a good reason for the delay.
Mr Harvey submits that he lost 13 of the 21 days to make his application due to businesses closing for the Christmas break from 21 December 2022 to 2 January 2023. The subsequent 14 days from 3 January 2023 to 16 January 2023 were also lost due to his mother requiring 24/7 care, and for similar reasons the following 11 days from 17 January 2023 to the date of lodgement on 27 January 2023 were affected by his mother’s poor condition and slow recovery.
Whether the person first became aware of the dismissal after it had taken effect: Mr Harvey became aware of the dismissal at the start of the meeting in which he was dismissed on 21 December 2022.
Any action taken by the person to dispute the dismissal: Aside from his preliminary research after Boxing Day in 2022 and subsequent legal inquiries from 16 January 2023, Mr Harvey did not take action to challenge the dismissal until 27 January 2023.
Prejudice to the employer (including prejudice caused by the delay): There is no evidence of any prejudice to Highgate if the application proceeds other than the consequence of having to defend the claim in circumstances where if an extension is refused, it will be relieved of this burden.
Merits of the application: The merits of the application are not strong, because on the face of the record, Mr Harvey has not completed the minimum employment period. The Small Business Fair Dismissal Code may also be relevant to the dismissal. If Mr Harvey can overcome these jurisdictional objections, the merits of his case will turn on how the Commission assesses the validity of performance concerns held by Highgate about Mr Harvey’s performance, balanced against other relevant matters and in particular the evident lack of procedural fairness in relation to the dismissal, due to its reliance on Mr Harvey’s probationary period at the time of dismissal.
Fairness as between the person and other persons in a similar position: There is nothing before me to indicate that fairness as between two or more persons is a relevant factor in this case.
Conclusion
I am satisfied that the role taken on by Mr Harvey as primary carer for his mother in the period from 30 December 2022 to 16 January 2023 is an exceptional circumstance, in that it was something out of the ordinary in the context of his daily life. However, on balance, I am not persuaded that I should exercise my discretion to allow additional time for the application to be made.
This is primarily because Mr Harvey does not appear to be eligible to apply for an unfair dismissal remedy: his period of employment was less than the minimum employment period. It seems unlikely that this jurisdictional hurdle can be overcome. In addition, neither the impending Christmas break nor Mr Harvey’s need to care for his mother provide an adequate explanation for the delay in taking any active steps to dispute the dismissal in the first 9 days after it occurred, or in the 10 days after 16 January 2023 until his application was lodged on 27 January 2023. Mr Harvey knew he had been dismissed straight away. Shock at the experience of dismissal, unfamiliarity with unfair dismissal laws and the lack of prejudice to a respondent would not usually be reasons on their own to extend the statutory timeframe. In this case, they are not persuasive considerations. Fairness as between persons in a similar position is not a relevant consideration.
While I have found exceptional circumstances, the balance does not weigh in favour of additional time for Mr Harvey to make his application. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Mr W Harvey on his own behalf
Ms A Chand, solicitor for the respondent
Hearing details:
2023.
Sydney (by Video)
March 14.
[1] Fair Work Act 2009 (Cth), s 22
[2] Fair Work Act 2009 (Cth), s 394(2)
[3] Decision issued orally at hearing on 14 March 2023
[4] [2011] 203 IR 1.
[5] Ibid [13].
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