Wojciech Druc v The Benevolent Society

[2020] FWC 4904

[2020] FWC 4904

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wojciech Druc
v
The Benevolent Society
(U2020/8538)

DEPUTY PRESIDENT DEAN SYDNEY, 14 SEPTEMBER 2020

Unfair dismissal application - extension of time - application dismissed.

[1] This decision concerns an application by Wojciech Druc (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. The Applicant had been employed by the Benevolent Society (the Respondent) until his dismissal.

[2] Section 394(2) of the Act states 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 pursuant to s 394(3).

[3] The Applicant’s employment ended 26 May 2020 and his application was filed on 20 June 2020, four days after the 21 day time limit allowed by the Act. Accordingly, I must decide whether an extension of time should be granted.

[4] At the hearing on 11 September 2020, the Applicant appeared on his own behalf. The Respondent had advised it did not wish to be heard in relation to whether the Commission should extend time for the application to proceed.

[5] 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

[6] It is for the Applicant to demonstrate that there are exceptional circumstances.

[7] 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.

[8] 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. I now consider these matters in the context of the application.

Reason for the delay

[9] 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 of the circumstances must be considered.³

[10] The Applicant gave evidence that he had been suffering from anxiety and depression for some time, and was unable to get face to face treatment because of COVID-19. He said that the telehealth services were not effective for him. He also gave evidence that he was having difficulty concentrating and his behaviour was erratic both before his dismissal and immediately afterwards. He decided he needed a holiday to ‘get away from things’ and booked a trip to the USA and Europe. He made multiple attempts to obtain permission through Australian Border Force to leave the country, but was unable to obtain such permission.

[11] The Applicant provided medical certificates and evidence of mental health treatment plans dating back to December 2018. In relation to the period between the date of his dismissal and the date he made this application, he provided a medical certificate from St Vincent’s Hospital mental health service which confirmed that the Applicant had attended the hospital for the first time, and his mental state was such that he should not be granted permission to travel overseas. He also provided a medial certificate for the period 26 to 29 May 2020 indicating he was unfit to work.

[12] Having considered the evidence and submissions made by the parties, I find that the reasons provided by the Applicant do not constitute an acceptable reason for the delay. While it is clear that the Applicant has had mental health issues for some time, he has been able to work during that period he was experiencing those health issues. Further, the Applicant was able to pursue permission to leave the country to take a holiday, having given evidence that he made multiple attempts to do so. Accordingly, I do not accept that he was suffering from a medical condition that incapacitated him to such an extent as to render him incapable of making an application for an unfair dismissal remedy within the statutory timeframe.

[13] Overall, this weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[14] The Applicant was aware his employment ended on 26 May 2020, and there is no dispute about this. This weighs against a finding that there are exceptional circumstances.

Action taken to dispute the dismissal

[15] The Applicant did not take any action to dispute his dismissal other than the making of his application. This weighs against a finding that there are exceptional circumstances.

Prejudice to the employer

[16] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[17] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

[18] It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[19] The Applicant did not bring to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[20] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, 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, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

W Druc, on his own behalf.

Hearing details:

2020.
Sydney (By telephone):
September 11.

Printed by authority of the Commonwealth Government Printer

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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].