Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Greystanes Disability Services t/a Greystanes Disability Services; Community Living

Application for an unfair dismissal remedy - extension of time.

[1] Mr Gary Roberts has lodged an application to the Fair Work Commission under s 394(1) of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of the termination of his employment with Greystanes Disability Services (Greystanes). Section 394(2) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). The date that Mr Roberts' dismissal took effect is identified in his application as being 23 May 2017, but he did not lodge his application until 2 November 2017, some 142 days late. Mr Roberts has accordingly applied for the grant of an extension of time to make his application under s 394(3). It is necessary to consider and determine whether such an extension should be granted before Mr Roberts' substantive application can be dealt with any further.

[2] Mr Roberts' application contained a reasonably lengthy factual explanation for his delay in lodging his application. At the Commission's request, Mr Roberts lodged a further written statement explaining the delay on 23 November 2017. The matter was the subject of a telephone directions hearing on 28 November 2017. At that hearing the representative for Greystanes, in response to an enquiry from myself, stated that there were no facts in dispute in relation to the application for an extension of time. Accordingly it was not necessary to conduct a conference or hold a hearing pursuant to s 397, and the matter could be dealt with on the papers. The parties were directed to file written submissions concerning whether, on the basis of the facts asserted by Mr Roberts, an extension should be granted, and they did so.

[3] The facts asserted by Mr Roberts relevant to his delay in lodging his application were as follows. Mr Roberts commenced employment with Greystanes on 17 July 2013 as a Disability Support Worker originally and then as a full-time Practice Leader. Greystanes provides services which assist people with disabilities who may require significant support to participate and engage, to communicate, to exercise choice and decision-making, and for daily living and good health. His employment ended as a result of him tendering his resignation on notice on 9 May 2017. His worked his last shift on 23 May 2017. Mr Roberts' contention will be, if his application proceeds, that he was forced to resign because of bullying and lack of support by management which caused him to be ill.

[4] On 29 May 2017, in response to an invitation from Manager of Community Living at Greystanes, Ms Vicki Godkin, he sent Greystanes' Human Resources department a written complaint concerning the matters which led to his resignation. He inferred from Ms Godkin's invitation that his complaint would be taken seriously. Human Resources asked Mr Roberts whether he would like a response, and he said he would. Human Resources confirmed on 30 May 2017 that his complaint had been forwarded to Ms Godkin. Having not subsequently received any response, on 11 June 2017 Mr Roberts contacted Ms Godkin, who told him that if he had wanted to make a complaint he should have done so prior to leaving his employment. On 14 June 2017 Mr Roberts emailed Human Resources to request an update on the progress of his complaint. He did not receive any response.

[5] On 27 June 2017 Mr Roberts wrote to the President of the Board of Directors of Greystanes, Mr Peter Poulos, outlining his complaints and stating that he had not received a response to his earlier complaint from Greystanes. Mr Poulos responded on 30 June 2017 assuring Mr Roberts that "the Board has full confidence that Greystanes management will take all the necessary steps to manage this matter appropriately". On 10 July 2017 Mr Roberts again wrote to Human Resources reminding them of his complaint, and on 12 July 2017 he received a letter from the outgoing CEO informing him that, due to privacy considerations, he would not be notified of the outcome of his complaint because he had not made the complaint prior to leaving the organisation. Mr Roberts said that "This indicated to me that apathy was being employed by the Executive to protect the initial bully".

[6] On 7 August 2017 Mr Roberts emailed the Patron of Greystanes, the Governor of NSW, informing him of his complaint and seeking that he "influence a more apt response". He sent a reminder email on 28 August 2017, and rang the office of the Governor on 4 and 18 September 2017 seeking a response. Mr Roberts eventually received a response on 25 September 2017 informing him that the Governor, as Patron, could not involve himself directly in the running of the organisation. He was also informed that the new CEO of Greystanes, Mr Robert Tinsey, had advised that the matters Mr Roberts had raised had been addressed.

[7] On 26 September 2017 Mr Roberts wrote to the new CEO contesting this. He received a response the same day informing him that his views had been heard and respected.

[8] Mr Roberts said that it was not until October 2017, when prompted by an unrelated newspaper article, that he wrote to the Fair Work Commission for the first time. He was not previously aware of the existence of the Commission. He said that on 3 October 2017 he was rung by a staff member of the Commission "to re-iterate the 21-day rule" (as asserted in Mr Roberts' application) or "to state I was outside the scope of 21 days since terminating employment... [and] also told of other organisations to turn to for options" (as asserted in Mr Roberts' statement of 23 November 2017).

[9] On 4 October 2017 Mr Roberts wrote to the Australian Charities and Not-for-profit Commission requesting assistance, but was advised on 11 October 2017 that the matter was outside its jurisdiction. On 16 October 2017 Mr Roberts wrote to the Commission requesting a "reminder on that which I had been told about by phone conversation on October 3, namely; how I may find the provision to contest the 21-days from the ending of employment deadline". He says that by 26 October 2017 the Commission had not responded, so he wrote his request again. The Commission rang him that day. He said he then spent some time filling out the on-line documents, but "the CAPTCHA would not acknowledge, and my work was lost". He says he could then not find the on-line form on the Commission's website. On 27 October 2017 the Commission sent forms to print, fill out by hand, scan, attach and send. He then lodged his application on 2 November 2017.

[10] Mr Roberts also made reference in his submissions to having suffered a leg injury, which caused him to see a GP on 27 September 2017, an orthopaedic specialist on 11 October 2017 and a sports physician on 25 October 2017.

[11] In order for Mr Roberts' unfair dismissal application to be competent, it is necessary for him to obtain an extension of time to make the application under s 394(3), which provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

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

[12] I will deal with the matters required to be taken into account under s 394(3) in turn.

[13] I do not consider that Mr Roberts has advanced an acceptable or reasonable explanation for the delay in lodging his application. Although he was not aware of the existence of the Commission (and presumably therefore the capacity to make an unfair dismissal application) at the time of the termination of his employment, that is (regrettably) not an unusual circumstances. There is no evidence that Mr Roberts sought any advice from a lawyer, industrial organisation, community legal centre or any other organisation, or sought to research his rights on the internet or elsewhere. Any of those sources would have readily provided him with the information necessary to lodge an application.

[14] It may be accepted that Mr Roberts spent some time making bona fide attempts to resolve his grievance concerning the termination of his employment directly with Greystanes. However, in objective terms, it was reasonably apparent by 12 July 2017 at the latest that this would not achieve anything. Even considered subjectively, Mr Roberts had formed the view by this time that the Executive of Greystanes was protecting the person who had allegedly bullied him. If so, it might reasonably be expected that this would prompt him to make inquiries about alternative means of redress, but there is no evidence he did this. Instead, on his own account Mr Roberts did nothing until he wrote to the Governor on 7 August 2017, some 26 days later.

[15] Mr Roberts was certainly aware of the Commission, the capacity to make an unfair dismissal claim and the 21-day time limit by 3 October 2017. It also appears (from his description of the purpose of his 16 October 2017 correspondence to the Commission) that he was informed of the capacity to seek an extension of time on 3 October 2017. However he then did not pursue this further until 16 October 2017 when he sought a "reminder" about this. The following 10 days in which he says that the Commission failed to respond may be an explicable part of the delay, but then having received all the necessary assistance on 26-27 October 2017, he still did not lodge the application until 2 November 2017.

[16] The lack of a reasonable explanation for the delay weighs against the grant of an extension.

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

[17] Assuming Mr Roberts' resignation constituted a dismissal within the meaning of s 386(1)(b), he was aware of this immediately (and indeed before) it took effect on 23 May 2017. This does not weigh in favour of the grant of an extension.

Any action taken by the person to dispute the dismissal

[18] Mr Roberts made various attempts to dispute his dismissal, if there was one, directly with Greystanes as earlier recounted. However, as explained, it was reasonably apparent by 12 July 2017 that these attempts were fruitless. This consideration therefore does not weigh in favour of an extension to 2 November 2017.

[19] There is some possibility due to the length of the delay that Greystanes may suffer some prejudice in its defence of the application, particularly as the CEO at the time of the termination of employment has left the organisation. This weighs against the grant of the extension.

[20] There is insufficient material before me to make any detailed assessment of the merits of Mr Roberts' application. However his application is not without its difficulties. Firstly, Greystanes disputes that there was a dismissal within the meaning of s 386(1)(b). Secondly, on Mr Roberts' own account, some of the alleged bullying behaviour by his manager involved counselling about perceived poor work performance. Further, many of the remedies sought by Mr Roberts (public apologies, reimbursement for petty cash expended during employment and back-payment for alleged unpaid overtime) are beyond the power of the Commission to award. I will treat this as a neutral consideration.

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

[21] This is not a relevant consideration.

[22] The test of exceptional circumstances in s 394(3) is a stringent one. Having regard to the matters required to be taken into account under s 394(3), none of which weigh in favour of the grant of an extension, I am not satisfied that the requisite exceptional circumstances exist. The lengthy delay in lodging the application was not caused by anything of an unusual nature or out of the ordinary, but rather by the all-too-common combination of an initial lack of knowledge as to the capacity to make an unfair dismissal application, a failure to seek the requisite advice or information, long periods of inaction, and dilatory conduct even after the appropriate assistance and information was obtained from the Commission.

[23] I decline to grant an extension of time under s 394(3). Accordingly Mr Roberts' application is incompetent and must be dismissed.

Ms. L. O'Connell on behalf of Greystanes Disability Services t/a Greystanes Disability Services; Community Living.

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