Wayne Wilkins v Mingara Recreation Club Ltd

[2024] FWC 2463

[2024] FWC 2463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Wayne Wilkins
v

Mingara Recreation Club Ltd

(U2024/8477)

COMMISSIONER MCKINNON SYDNEY, 11 SEPTEMBER 2024

Application for an unfair dismissal remedy – application filed out of time – whether an extension of time should be allowed

1. Mr Wayne Wilkins was employed as a Gaming Leader by Mingara Recreation Club Ltd (Mingara Club) from 16 October 2023 until 27 or 28 June 2024. Mingara Club submits that Mr Wilkins was dismissed on 27 June 2024 during a show cause meeting. Mr Wilkins submits that he was dismissed when he received a termination letter by email on 28 June 2024. On 22 July 2024, Mr Wilkins applied for an unfair dismissal remedy.

1. Having heard from the parties, I find that Mr Wilkins was dismissed orally by Ms Debbie Waicokacola, Gaming Manager for Mingara Club, during the meeting on 27 June 2024. This finding is consistent with two sets of contemporaneous notes taken by representatives of Mingara Club who were present in the meeting, including Ms Waicokacola. The decision to terminate Mr Wilkins’ employment was then formalised in a letter of termination prepared on 27 June 2024 and sent to Mr Wilkins by email on 28 June 2024. The dismissal took effect immediately on 27 June 2024.

1. The consequence of this finding is that Mr Wilkins’ application for an unfair dismissal remedy was filed 4 days late. If I am wrong, and the dismissal only took effect on 28 June 2024, the application was filed 3 days late. Either way, the application was made more than 21 days after the dismissal took effect. The question is whether additional time should be allowed for Mr Wilkins to make his application to the Commission.

1. I have decided not to extend the time for Mr Wilkins to make the application. These are my reasons.

Extension of time

1. Section 394(2) of the Fair Work Act 2009 (the Act) requires an application for an unfair dismissal remedy to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3).

1. Under s.394(3) of the Act, the Commission may allow additional time for an unfair dismissal remedy application to be made if satisfied that there are exceptional circumstances. The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:

“[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.”

1. A list of matters to be taken into account when deciding whether to grant additional time is prescribed by s.394(3). 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

1. Reason for delay: The reasons given by Mr Wilkins for the late filing of his application is that he did know of the seriousness of the 21 day timeframe and that he would have acted differently had he known. Mr Wilkins also submits that after his dismissal he was looking for other jobs, attending job trials, and was busy looking after his 13-month‑old child while trying to arrange childcare as his partner had picked up additional shifts. He decided to get back into teaching and it took him about 4-5 weeks to find a new job. None of these are exceptional circumstances in the context of recent job loss.

1. Mingara Club asserts no prejudice if an extension of time is granted. However, it submits that there are no exceptional circumstances warranting the grant of additional time and the application should be dismissed because it is out of time.

1. Whether the person first became aware of the dismissal after it had taken effect: Mr Wilkins submits that he first became aware of the dismissal on 28 June 2024 when he received the letter of termination. For the reasons above, I find that Mr Wilkins first became aware of his dismissal in the meeting on 27 June 2024 when he was advised of the termination of his employment with immediate effect by Ms Waicokacola. It is an ordinary, rather than exceptional, circumstance to become aware of the dismissal at the time it takes effect.

1. Any action taken by the person to dispute the dismissal: Mr Wilkins did not take any action to dispute his dismissal until he made this application on 22 July 2024. This is not an exceptional circumstance.

1. Prejudice to the employer (including prejudice caused by the delay): There is no apparent prejudice that will flow to Mingara Club if additional time is allowed to Mr Wilkins to make his application for an unfair dismissal remedy. Again, this is not an exceptional circumstance.

1. Merits of the application: Mr Wilkins submits that he was denied procedural fairness in relation to the dismissal because one of the reasons for dismissal was not put to him until one day before the meeting on 27 June 2024. Mr Wilkins also submits that the dismissal was unjust and a disproportionate response to the conduct it relied upon.

1. Mingara Club submits that there was a valid reason for dismissal that followed previous warnings about similar conduct. It further submits that Mr Wilkins was afforded procedural fairness, not denied a support person and had only a relatively short period of service.

1. It appears that Mr Wilkins was dismissed with immediate effect for alleged serious misconduct. Whether his conduct could aptly be characterised in this way could only be resolved in a hearing on the merits. On balance, Mr Wilkins’ claim that he was unfairly dismissed is at least arguable. The merits would tend in favour of an extension of time if I were satisfied of the existence of exceptional circumstances in this case.

1. Fairness as between the person and other persons in a similar position is not a relevant criterion in this case.

Conclusion

1. For the reasons above, there are no exceptional circumstances warranting additional time for Mr Wilkins to make his application for an unfair dismissal remedy. Mr Wilkins knew about his dismissal straight away. His focus in the weeks after dismissal was on finding another job and caring for his child. He may not have known of the 21 day filing period, but there is no evidence that he made any relevant enquiries in this regard. He did not take any action to dispute the dismissal until after the 21 day period had passed.

1. As there are no exceptional circumstances in this case, no additional time can be allowed for the application to be made.

1. The application is dismissed.

COMMISSIONER

Appearances:

W Wilkins on his own behalf.

N Shaw of ClubsNSW for the Respondent.

Hearing details:

2024.
Sydney (by video):
September 2.

[1] [2011] 203 IR 1 at [13].

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