Kaleb McKinnon v Prospect Hill Accommodation [2022] FWC 293 (15 February 2022)

[2022] FWC 293

Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

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

• [2] The termination of the Applicant's employment with Prospect Farm Accommodation Pty Ltd (Respondent) took effect on 24 December 2021. The unfair dismissal application was lodged on 15 January 2022.

• [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 14 January 2022. The application was therefore filed one day 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).

• [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:

(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);

(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 will now consider these matters.

• [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 provided the following written explanation for the delay in lodging his application:

"1. Ms McCann's threat of legal action initially deterred me from filing my application.

2. As outlined in my application I was moving houses for the job and all my personal belongings were in storage, including my laptop.

3. The move was further delayed as I was unable to help my partner move due to the back injury I suffered a week prior to my termination.

4. Moving houses and the injury I suffered had cause me a great deal of physical and mental distress.

5. Once moved into the new property there was a delay setting up our internet connection."

• [11] The Applicant gave oral evidence at the hearing to further explain these reasons, including that:

• the Applicant was threatened with legal action by Ms McCann on 24 December 2021. He denies that he threatened to make comments about the Respondent on social media, and says that Ms McCann threatened to sue the Applicant if he spoke to anyone about what happened to him,

• the Applicant moved his personal belongings into storage on 1 January 2022. He moved into his new house on 7 January 2022 and had everything out of storage and into the property by about 11 January 2022,

• it took the Applicant longer to move into the new house than would have been the case had he not had a back injury; his partner moved most of the belongings,

• the Applicant had the internet connected to his new house on about 10 or 11 January 2022,

• in the period between 24 December 2021 and 15 January 2022, the Applicant moved house and settled into the new property. This was a difficult time for the Applicant and he felt "pretty down", and

• the Applicant miscalculated the 21 day period after his dismissal to be 15 January 2022, rather than the correct date of 14 January 2022.

• [12] The Applicant also provided the Commission with a WorkCover NSW Certificate of Capacity from his treating doctor dated 5 January 2022. The certificate states that the Applicant was injured as a result of sitting on a chair at work which collapsed. Treatment for the injury is recorded on the certificate as "analgesia, physiotherapy". The certificate also states that the Applicant has no current work capacity for any employment from 5 January 2022 to 19 January 2022. There is no suggestion in the certificate that the Applicant was suffering from any kind of mental distress, injury or impairment.

• [13] The workplace injury allegedly took place on 16 December 2021. In the period from 16 December 2021 until the date of his dismissal on 24 December 2021, the Applicant worked about two or three shifts. He drove himself to work for each of those shifts.

• [14] Ms McCann gave evidence for the Respondent at the hearing of the application for an extension of time. During her discussion with the Applicant on 24 December 2021, Ms McCann says that she informed him that the Respondent was terminating his employment during the probationary period and explained that was because the Applicant had been unreliable in attending shifts for which he was rostered. Ms McCann says that the Applicant appeared very upset at being told that he was unreliable. The Applicant then, according to Ms McCann, said that he would "go public" with everything that had been done and go on to social media. Ms McCann says that she responded by saying that if the Applicant went "public" then she would need to get advice from the Respondent's solicitor. Ms McCann denies making any threat to the Applicant.

• [15] On the balance of probabilities, I prefer Ms McCann's evidence in relation to this disputed conversation to the evidence given by the Applicant. First, the letter of termination, together with the shift cancellation records provided by the Respondent, support Ms McCann's evidence that she informed the Applicant that the reason for dismissal was the Applicant's unreliability. Secondly, it was clear from the evidence given by the Applicant, together with the questions he asked Ms McCann at the hearing, that he disagrees with the notion that he was unreliable or that his employment should have been terminated on Christmas Eve on the grounds of unreliability when he had not been warned about that, he had been injured at work on 16 December 2021, and he had recently been recovering from COVID-19. Thirdly, it is likely, in my view, given the strong view the Applicant obviously holds about the notion that he was unreliable and that his dismissal was unfair, that he informed Ms McCann that he would "go public" with what had happened to him. I consider it also likely that Ms McCann responded by saying that she would seek advice from the Respondent's solicitor if the Applicant did "go public".

• [16] Having regard to all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. I accept that the Applicant miscalculated the 21 day period after his dismissal took effect and that was at least part of the reason for the delay in filing his application. However, miscalculating the 21 day period is not unusual and does not provide an acceptable or reasonable explanation for the delay. As to the balance of the reasons advanced by the Applicant, I accept that the Applicant did have a back injury, was "pretty down", and was busy moving house in early January 2022, but he was moved into his new house and had the internet connected by about 10 or 11 January 2022. When the Applicant came to prepare his unfair dismissal application on 15 January 2022, he gave evidence that it did not take him long to prepare and submit the form. I am satisfied on the evidence that he had the ability, capacity and time to prepare and lodge the application by the end of the 21 day period at midnight on 14 January 2022.

• [17] Although I have found, on the balance of probabilities, that Ms McCann did not threaten the Applicant in the meeting on 24 December 2021, even if I had found that a threat of litigation was made by Ms McCann, as suggested by the Applicant, that would not have altered my conclusion that the Applicant did not have a reasonable or acceptable reason for the delay in lodging his application. That is because threatening litigation does not provide a reasonable or acceptable reason to delay commencing unfair dismissal proceedings if the employee to whom the threat was made has a genuine belief that they were unfairly dismissed. The prospect of there being some counterclaim or other litigation by a party to a dispute is part of the risk that any potential litigant must weigh up in deciding whether or not to commence legal proceedings.

• [18] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 15 January 2022 weighs against a conclusion that there are exceptional circumstances.

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

• [19] The Applicant was aware of his dismissal on the day it took effect. The Applicant therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.

• [20] The Applicant did not suggest that he took any action to dispute his dismissal, other than lodging his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [21] 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.

• [22] 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 substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

• [23] The Respondent adduced evidence to support its contention that its employment relationship with the Applicant commenced on 18 July 2021. Documentary evidence tendered by the Respondent supported the notion that the employment relationship commenced on 18 July 2021, including the signing of the Applicant's contract of employment on 6 July 2021, the Applicant's payslips, and the Applicant's timesheets. The Applicant gave evidence that he believed he commenced employment with the Respondent on 15 June 2021. His belief in that regard was based on the fact that his employment contract with the Respondent has the date of 15 June 2021 on the first page of the contract. The documentary evidence adduced by the Respondent provides strong support for its case that the Applicant's employment relationship commenced on 18 July 2021 when the Applicant performed his first shift for the Respondent. If that is correct, then the Applicant was not employed for at least the minimum employment period (6 months) when his employment came to an end on 24 December 2021. Satisfying the minimum employment period is a jurisdictional prerequisite to being able to pursue an unfair dismissal remedy (s 382 of the Act).

• [24] In light of the strength of the Respondent's case that the Applicant was not employed for at least the minimum employment period at the time of his dismissal, I consider the merits of the Applicant's claim to be weak. This weighs against the Applicant's application for an extension of time.

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

• [25] 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.

• [26] Neither party brought 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.

• [27] Having regard to the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In particular, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging his application and the merits of his claim are weak because it does not appear as though the Applicant was employed for at least the minimum employment period. Having regard to all the evidence, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [28] 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.

[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]

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