William Bolger v Austin Health

[2015] FWC 8107

[2015] FWC 8107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Bolger
v
Austin Health
(U2015/13345)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Mr William Bolger alleged that the termination of his employment by Austin Health was unfair.

[2] There is a dispute about when Mr Bolger’s dismissal took effect. The letter of termination attached to Mr Bolger’s application advised his employment would end on 28 August 2015. Mr Bolger said his dismissal took effect on 8 September 2015. Austin Health stated that Mr Bolger’s dismissal took effect on 28 August 2015. Irrespective of which date Mr Bolger relies upon, his application was not lodged within 21 days of the dismissal taking effect.

[3] Mr Bolger was directed to file in support of his application for an extension of time an outline of argument, statement of evidence and a document list by noon on 30 October 2015 and the application was listed for hearing on 13 November 2015.

[4] Mr Bolger did not file his material and did not respond to a phone call from the Fair Work Commission on 5 November 2015 about his overdue submissions. As a result, the hearing on 13 November 2015 was cancelled and on 6 November 2015, a letter was sent to Mr Bolger advising him that unless he provided material to support his application for an extension of time by 13 November 2015, his application would be determined on the basis of the material before the Commission without a hearing/conference. On 13 November 2015, a voice message was left for Mr Bolger about his overdue submissions but he did not contact the Commission.

[5] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[6] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

[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." [Endnotes not reproduced]

(a) the reason for the delay;

[7] Mr Bolger submitted that the delay in the lodgment of his application was because he was waiting for legal advice and the closest appointment was 28 September 2015. After receiving that advice, he was advised to respond to the Commission as soon as possible. Despite this advice, Mr Bolger did not lodge his application until 5 October 2015. Additionally, he said as he has no internet access, he had to wait for the paper work.

[8] It is not unusual for employees to have difficulty obtaining legal advice in the short time frame provided in the Fair Work Act 2009 (the Act) for lodging an application.

[9] I therefore find that Mr Bolger’s reasons for the delay weigh against a finding of exceptional circumstances.

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

[10] Assuming Mr Bolger’s dismissal took effect on 8 September 2015, Mr Bolger was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding of exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[11] There is no evidence that Mr Bolger took any action to dispute his dismissal. This weighs against a finding of exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[12] I will, for the purpose of this decision, assume that there is no prejudice to the employer. This weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[13] Mr Bolger submitted that he was dismissed whilst on WorkCover. Mr Bolger submitted that his employer had all the relevant information regarding a return to work.

[14] Austin Health submitted that Mr Bolger had been absent on unpaid sick leave since December 2014 and that medical information regarding Mr Bolger’s capacity stated he had no capacity for work. Mr Bolger’s employment was terminated because he was unable to perform the inherent requirements of the job.

[15] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[16] No submissions were made on this criterion.

Conclusion

[17] I am not satisfied there are exceptional circumstances warranting the granting of an extension of time. A lack of prejudice to the employer is not a sufficient basis to find that there are exceptional circumstances. All the other criteria are either neutral or against such a finding. Accordingly, Mr Bolger’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975.

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