Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application filed out of time - exceptional circumstances - discretion exercised to extend time.

[1] This decision concerns an application by Mr Dan Beard (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant's employment with Valley Industries Limited (Respondent) was terminated with effect from 8 May 2020. The unfair dismissal application was lodged on 23 July 2020.

[3] 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). The period of 21 days ended at midnight on 29 May 2020. The application was therefore filed 55 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] 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]

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) 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.

[6] 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.

[7] 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.

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

[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.[5]

[10] The Applicant is legally blind and relies on hearings aids to hear. He has limited use of his left hand and lacks fine motor skills and some strength in his right hand. The Applicant also suffers from anxiety and depression.

[11] The Applicant commenced work with the Respondent on 18 July 2019. The Applicant really enjoyed his work with the Respondent because it gave him a sense of purpose. The Respondent is the only disability enterprise in the region in which the Applicant lives.

[12] The Applicant's placement and employment with the Respondent were funded through his National Disability Insurance Scheme Plan. On the commencement of his employment with the Respondent in July 2019, the Applicant was paid $3.89 per hour by the Respondent. This pay rate reflects the extent of the Applicant's work capacity.

[13] The chronology of relevant events in the period leading up to and following the Applicant's dismissal is as follows:

• In February 2020 the Applicant made a complaint to his supervisor about the conduct of another employee of the Respondent who the Applicant alleges was harassing and threatening the Applicant, his daughter, and her boyfriend. Both the Applicant's daughter and her boyfriend also work for the Respondent. These matters caused the Applicant stress and anxiety.

• On 4 March 2020 the Applicant experienced severe chest pains at work. He spent a week in hospital. The cause of the chest pains was anxiety and depression.

• On 5 May 2020 the Applicant returned to work. Prior to returning to work, the Applicant spoke to his supervisor and asked not to work directly with the employee who the Applicant alleges was continuing to harass and threaten his daughter.

• On 7 May 2020 the Applicant left work early because he was feeling sick and upset. The Applicant says that the problems he was experiencing before he went off work in early March 2020 were still happening when he returned to work. In particular, the Applicant alleges that the same employee of the Respondent had made really crude comments about his daughter and was giving her boyfriend and the Applicant a hard time.

• After the Applicant arrived at home on 7 May 2020, he received a private Facebook message from a friend of his who worked for the Respondent, asking if he was okay. The Applicant and his friend exchanged a number of private Facebook messages on the afternoon of 7 May 2020, as they had often done in the past. The Applicant regrets part of the Facebook communications, which he says were intended to be private and not shown to anyone, in which the Applicant was "letting off steam". The Applicant's friend showed the private Facebook messages to one of the Respondent's supervisors.

• On the afternoon of 7 May 2020 the Applicant was told by Ms Renee Gilbert, Corporate Services Manager of the Respondent, that the Respondent was considering terminating his employment.

• At 2:44pm on 7 May 2020 the Applicant sent an email to Ms Gilbert in which he gave his explanation for what he had written in the private Facebook communications and stated that he would "be seeking legal advice as threats of termination have been given to me which I feel are unjust and not fair".

• By letter dated 8 May 2020 the Respondent terminated the Applicant's employment with immediate effect and informed him that he would be paid four weeks' pay in lieu of notice. The reason given by the Respondent for the dismissal was that the Applicant's response did not explain, justify or excuse his conduct in sending the Facebook message to his friend.

• The Applicant sent an email to Ms Gilbert at 12:57pm on 8 May 2020, asking for "the number for the head office as I will be seeking for unfair dismissal I haven't received any warnings I believe what I said in a private conversation was totally blown out of proportion ..."

• On 13 May 2020 the Applicant sent an email to Mr Trent Jennison, a senior manager of the Respondent, asking Mr Jennison to reconsider his dismissal.

• On 14 May 2020 Ms Gilbert responded to the Applicant's email to Mr Jennison. Ms Gilbert informed the Applicant that "we don't wish to take the risk of ongoing conflict and potential violence in a workplace with vulnerable employees and our decision stands". Later on 14 May 2020 the Applicant sent a further email to Ms Gilbert, explaining why he believed his dismissal was unfair and stating that he would "be emailing the NDIS safe guard commission as I still feel I am being unfairly treated".

• On 30 June 2020 the Applicant sent a further email to Mr Jennison, asking for his job back and someone else (apart from Ms Gilbert) to look into the matter. Ms Gilbert responded to the Applicant's email later on 30 June 2020, informing him that the Respondent would not be exploring his employment again. The Applicant provided a response later that day, again explaining why he believed his dismissal was unfair and stating that he would be "seeking further assistance in relation to this matter".

• The Applicant gave evidence, which I accept, that his life fell apart once the reality of losing his job set in, his mental state deteriorated really badly, he became suicidal, and he cannot remember a lot of things that happened over the next couple of months. The Applicant's evidence in this regard is supported by evidence from his wife and a letter from his treating general practitioner, Dr Lay Thazin New, dated 11 August 2020. The first two types of anti-depressant/anxiety medication the Applicant took, at the recommendation of Dr New, in June 2020 caused him significant side effects. On 2 July 2020 the Applicant was prescribed a third type of medication, which did not have side effects and started to gradually improve his mental state.

• On 2 July 2020 the Applicant contacted Disability Advocacy NSW because he did not know how to address what he perceived to be unfair treatment from the Respondent.

• On 7 July 2020 the Applicant's matter was allocated to Mr Grant Murray, Disability Advocate employed by Disability Advocacy NSW. Mr Murray gave evidence in support of the Applicant's application for an extension of time.

• On 8 July 2020 Mr Murray contacted the Applicant and arranged for a referral to be made to the Mid North Coast Community Legal Centre.

• On 15 July 2020 Mr Murray and the Applicant spoke to a solicitor from the Mid North Coast Community Legal Centre, who informed the Applicant that he would do some research into the matter and requested that the Applicant obtain letters from his general practitioner and wife and support his version of events.

• On 22 July 2020 the solicitor from the Mid North Coast Community Legal Centre contacted the Applicant and informed him that an unfair dismissal application should be lodged in the Commission, seeking an extension of time.

• On 23 July 2020, Mr Murray assisted the Applicant to complete his unfair dismissal application and it was lodged in the Commission on the same day.

• Mr Murray provided significant assistance to the Applicant in completing his unfair dismissal application and obtaining and preparing evidence to support his application for an extension of time. The Applicant was represented in the hearing of his application for an extension of time by a solicitor from the Mid North Coast Community Legal Centre.

[14] The Applicant gave evidence, which I accept, that he believed he had been unfairly dismissed and had heard the term "unfair dismissal" but did not know what this meant in a legal sense or how to do anything about it. As a result, the Applicant repeatedly approached the Respondent to seek an internal review and reinstatement.

[15] The Applicant essentially relies on two reasons for the delay in filing his unfair dismissal application. First, the Applicant contends that he had no real awareness of any rights which may have been available to him and no understanding of where to seek advice or help, other than through his employer. I do not consider this to be an acceptable or reasonable explanation for the delay; ignorance of the time limit or a right to challenge a dismissal is not an acceptable explanation for a delay.[6]

[16] Secondly, the Applicant effectively contends that as a result of the significant deterioration in his mental state shortly after his dismissal, he was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal. I accept this contention. It is supported by the evidence to which I have referred. Further, after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission. In the period from 2 July 2020, when the Applicant first contacted Disability Advocacy NSW, to 23 July 2020, when the application was lodged in the Commission, the Applicant worked closely with, and followed the advice of, his representatives in a timely manner.

[17] For the reasons stated I consider the Applicant's second explanation for the delay in lodging his application to be an acceptable and reasonable explanation for the whole of the delay. This weighs in favour of a conclusion that there are exceptional circumstances.

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

[18] The Applicant was notified of the dismissal on 8 May 2020 and the dismissal took effect on the same day. The Applicant therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

[19] It is clear from the chronology of relevant events set out above that the Applicant sent a number of emails to the Respondent following his dismissal in an attempt to persuade the Respondent to reconsider his dismissal and reinstate him. I consider the sending of these emails to constitute 'action to dispute the dismissal'. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.

[20] I cannot identify any prejudice that would accrue to the Respondent 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.

[21] 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 unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The Applicant was dismissed because he sent private Facebook messages to a co-worker in which he made threatening comments about other employees of the Respondent. The Applicant contends that these messages were private, they were not directed to, or intended to be seen by, the other employees, he was "letting off steam" after being frustrated by a lack of action from his supervisor, he had no intention to take any action against either of the employees to whom he referred in his messages, and he was feeling stressed and anxious at the time the messages were sent. The Respondent contends that the Applicant wilfully jeopardised the safety of vulnerable employees in his work unit and only his removal from the workplace could adequately address the risk. The principal issue on the merits is whether the Applicant's dismissal was harsh. The determination of that question will require further evidence concerning the full context of the private Facebook communications between the Applicant and his co-worker, together with a comprehensive understanding of the prior communications between the Applicant and his supervisor in relation to relevant interpersonal issues in the workplace. Evidence on those matters will include cross examination of a range of witnesses. In all the circumstances, the merits of the Applicant's unfair dismissal application are neutral in my consideration of exceptional circumstances and the exercise of discretion to extend time.

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

[22] 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 brought to my attention any matter which I consider to be relevant to this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

[23] 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 and Respondent, I am satisfied that there are exceptional circumstances. In making this evaluative assessment I have taken into account each of the factors in paragraphs 394(3)(a) to (f). The most persuasive factor in the circumstances of this case is the fact that the Applicant has provided an acceptable and reasonable explanation for the delay in lodging the application. I am also persuaded, for the same reasons, that it is appropriate in the circumstances of this case to exercise my discretion to extend the time for the Applicant's application to be lodged. I will therefore extend the time for the Applicant to lodge his unfair dismissal application to 23 July 2020. An order will be issued to that effect [PR722175].

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[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] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14]

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