Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy- extension of time

• [1] On 11 November 2023, Mr. Lawson Reid (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) with the Fair Work Commission (Commission). The Applicant's former employer and respondent to the application was Invocare Petcare Pty Ltd (Respondent).

• [2] Section 394(2) of the Act provides that an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). The Respondent objected to the application on the basis that it was made outside the 21-day time limit prescribed by s.394(2) of the Act.

• [3] It was not in issue between the parties that the dismissal took effect on 20 October 2023 and I accept that the termination took effect on that date. The deadline for the filing of the application expired on 10 November 2023 and the application was therefore made one day outside the prescribed time limit.

• [4] Before considering the merits of the application for an unfair dismissal remedy, the Commission must be satisfied that the application was not made out of time or alternatively, extend the 21-day time limit provided for in section 394(2)(a). The Applicant has asked the Commission to exercise its discretion to extend the time limit under s.394(3) of the Act. That course was opposed by the Respondent. This decision deals with the question of whether or not the time for the making of the application should be extended.

• [5] The Respondent is a provider of funeral and associated services, including pet cremations. The Applicant commenced his employment with the Respondent in November 2021. He was employed as Area Manager in the Respondent's business. The Applicant's role required him to attend veterinary clinics and animal referral centres that used the Respondent's services to collect deceased animals and transport them to crematoria. The Applicant was employed on a full-time basis at the time of his termination and regularly engaged with employees of the Respondent's clients.

• [6] In September 2023, the Respondent commenced an investigation into a number of concerns relating to the Applicant's conduct. On or about 19 September 2023 the Applicant was directed not to attend a veterinary clinic by the Respondent as a result of what the Respondent said was a complaint by an employee of a clinic. The Respondent alleged that the Applicant subsequently attended that clinic in breach of the direction. The Applicant was stood down from his duties and a formal investigation commenced on 26 September 2023.

• [7] A meeting was held with the Applicant on 5 October 2023 at the Respondent's Canberra premises to obtain the Applicant's responses to the allegations. According to the Respondent, the Applicant was given a further direction not to attend client premises. On 12 October 2023 a show cause meeting was held between the Applicant and representatives of the Respondent where the Applicant was asked to provide further information as to why his employment should not be terminated.

• [8] On 20 October 2023 a further meeting was held with the Applicant where the Respondent conveyed to him the decision to terminate his employment. The Applicant was given a termination letter at the meeting. The letter said that the Applicant's employment was being terminated for serious and wilful misconduct. It cited a breach of the Respondent's Code of Conduct and two failures to comply with lawful and reasonable directions. The Applicant's employment ended with immediate effect on that day.

• [9] Section 394 of the Act provides that the Commission may allow a further period for an application for an unfair dismissal remedy to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters:

(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.

• [11] The Applicant cited a number of factors as accounting for the delay in filing the application. He said that he had counted the days he had to lodge his application, but he made an error because of poor mental health and his stressful home life. The Applicant gave evidence about the stress of losing his employment and source of income and the need to find alternative employment and accommodation. He said he faced an extremely difficult personal and family situation, including the breakdown of his parents' marital relationship, which impacted upon his organising ability. The Applicant gave evidence that he relocated to Nelson Bay for the purpose of obtaining other employment and was for a period living on a houseboat without internet access. He also referred to mental health issues as a consequence of the loss of his possessions during a house flood two years ago.

• [12] The Respondent submitted that the Applicant's evidence showed that he was aware of the time limit for lodging an application and was consciously working to that limit but simply miscalculated. They said that while it could be accepted that termination of employment generated a level of stress and shock for employees, this was not out of the ordinary course and that there was no evidence of matters not already in existence at the time of the dismissal that would give rise to abnormal circumstances justifying an extension of time. The Respondent said that the Applicant's evidence about relocating and obtaining alternative employment demonstrated that the Applicant was capable of managing everyday activities and showed that the Applicant was capable of filing an application within time. Further, the Respondent submitted that in relation to the very difficult domestic circumstances described by the Applicant, whilst they may in combination be regarded as out of the ordinary course of events, in this case they did not occur contemporaneously with the dismissal and so did not support a finding in favour of the Applicant.

• [13] The relevant delay in this case is the period from 10 October 2023 to 11 October 2023 when the application was filed. Circumstances arising prior to the delay may be relevant to the reasons for the delay.[1] I accept that the Applicant faced a number of extremely difficult domestic circumstances. I have taken all of those circumstances into account. Some of the circumstances such as the charging of the Applicant's father with an offence, whilst not directly relating to the Applicant, would have nonetheless added to the difficulty of the Applicant's situation.

• [14] I consider that the Applicant's circumstances, in combination, would have had some impact on his capacity to prepare and file an application even though a number of them, including the breakdown of his parents' marital relationship, predated the termination of the Applicant's employment. However, having heard the Applicant's evidence I am of the view that although the Applicant was working in difficult and even unusual circumstances, he was aware that he had a limited period of time to file an application and was working towards meeting that deadline. The Applicant accepted that he simply made a mistake with the calculation of time.

• [15] The reason for the delay is one of number of factors to be considered to determine whether exceptional circumstances exist. A miscalculation of the time period is not without more, an exceptional circumstance.[2] Even though the Applicant was preparing his application in very difficult circumstances, I am of the view that he had some capacity to conduct his usual affairs including seeking out alternative employment. I am also of the view that the one-day delay in filing the application in this case was predominately a result of the Applicant's miscalculation of the time period. Taken as a whole, I do not consider that the circumstances relating to the reasons for the delay weigh in the Applicant's favour.

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

• [16] The Applicant was dismissed on 20 October 2023. He was told about his termination on that day and was given a termination letter on the same day stating that his termination took immediate effect. The Applicant was therefore aware of the dismissal on the date it took effect and had the benefit of the full 21-day period to lodge his application. This weighs against a conclusion that there are exceptional circumstances justifying an extension of time.

Any action taken by the Applicant to dispute the dismissal

• [17] Where an applicant disputes a termination and puts an employer on notice that the decision may be contested, this can weigh in favour of granting an extension of time.[3] Here the Applicant provided evidence that he took issue with the allegations that were being made against him during the course of the investigation and the show cause process. The Respondent did not contend otherwise, although the Respondent's witness, Ms. Holt said that the Applicant also made a number of concessions during those meetings. There was however no evidence that the Applicant took any steps to dispute his dismissal after it took effect but before the application was made and I find that no such steps were taken. This weighs against a conclusion that there were exceptional circumstances.

• [18] The Respondent accepted that there was no relevant prejudice to them as a result of the delay in making the application. They said that this was a neutral consideration in the circumstances. I accept that to be the case here.

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

• [19] The Applicant gave evidence about the conduct of another employee in the workplace and queried why there had been no stand down or investigation into that conduct. I am unable to make any findings about that alleged conduct and it is unnecessary for me to do so. It has been held that this particular consideration is directed towards the application of consistent principles in cases of a similar kind and can include matters that are currently before the Commission or others that have been previously decided by the Commission.[4] The Respondent referred to a case[5] in which the Commission had refused an extension of time where an application under s.365 of the Act had been filed one day late as a result of a miscalculation of the time period. A determination of exceptional circumstances involves an assessment of number of matters of which fairness between the Applicant and other persons is but one. Such determinations will generally turn on their own facts. Whilst the facts in the matter referred to differ from those here, I accept that there are some similarities and that any ultimate decision to decline to grant an extension would not be inconsistent with the approach taken there. It is a relevant factor but not determinative.

• [20] Many of the facts going to the merits of the application were contested. I am not required to resolve all contested facts going to the merits for the purpose of dealing with this application. That would be a matter for a full hearing.

• [21] There were also factual issues that were not in dispute. Significantly, the Applicant accepted that he had been given a direction not to attend a veterinary clinic by the Respondent and that in contravention of that direction, he attended a clinic on 21 September 2023. The Applicant said that he thought that because he was not in his work uniform, he could attend the premises as an independent person. He accepted that he had made a mistake and that the allegation was true.[6] The Applicant's contract of employment required him to comply with lawful directions given to him by the Respondent. Whatever else might be said about the other allegations against the Applicant, the non-compliance with this direction, even for well-intentioned purposes, which was conceded by the Applicant, could constitute a valid reason for his termination related to his conduct.

• [22] It was also not in issue that the Applicant had been made aware of the allegations against him and was given an opportunity to respond to those allegations. Ms. Holt's evidence was that she commenced a formal investigation into the conduct of the Applicant on 26 September 2023. On 3 October the Applicant was sent a letter that outlined the allegations against him and asked him to attend a meeting on 5 October. He was told he had the right to bring a support person to the meeting. The Applicant attended the meeting on 5 October with a support person.

• [23] On 11 October the Applicant was sent a letter advising of a "show cause" meeting the following day. The letter set out details of five separate allegations. The Applicant was advised he would be asked to respond to the allegations and give reasons as to why his employment should not be terminated. The Applicant attended the meeting the following day with a support person. None of this evidence was challenged. This evidence shows that the Respondent followed conventional and reasonable steps to notify the Applicant of the reasons for his termination, gave him an opportunity to respond to those allegations and allowed him to have the benefit of a support person at various stages of the process. These are important matters under s.387 of the Act which would be taken into consideration in the assessment as to whether the dismissal was ultimately harsh, unjust or unreasonable.

• [24] The above matters relating to the issues of valid reason for termination and procedural fairness in the termination process lead me to the view that the merits of the application are weak and the prospects of the matter ultimately being successfully prosecuted by the Applicant are limited. This weighs against a conclusion that there are exceptional circumstances warranting an extension of time.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[25] 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.[7] 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. [8]

[26] Having regard to all of the circumstances of this case and the matters in s.394(3), and my conclusions in relation to those matters set out above, I am not satisfied that there are exceptional circumstances to warrant an extension of time.

[27] The Applicant's application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.

By Video using Microsoft Teams at 12:00pm AEDT on Monday 29 January 2024.

[1] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[2] Jalil v BMD Constructions Pty Ltd [2014] FWC 9357, [7].

[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[4] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[5] Taylor v Ventia Pty Ltd [2022] FWC 2409.

[6] Applicant's Dismissal Statement Court Book page 57.

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901.

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