Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time.

[1] Liam Wilson was employed by Quatius Logistics Pty Ltd as a Warehouse Assistant from 12 November 2015. On 5 March 2020, Elise Zhao, National Logistics and Operations Supervisor advised him that his employment had been terminated. The dismissal was subsequently confirmed by correspondence attached to an email dated 6 March 2020.

[2] On 9 April 2020, Mr Wilson applied for an unfair dismissal remedy. Unfair dismissal applications must be made within 21 days after the dismissal took effect or such further period as the Commission allows if there are exceptional circumstances.[1]

[3] Mr Wilson's application was filed 13 days late. The question is whether an extension of time to file the application should be allowed.

[4] Section 394(3) of the Act sets out a range of factors that are to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:

• the reason for the delay;

• whether the person first became aware of the dismissal after it had taken effect;

• any action taken by the person to dispute the dismissal;

• prejudice to the employer (including prejudice caused by the delay);

• the merits of the application; and

• fairness as between the person and other persons in a similar position.

[5] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances "out of the ordinary course, or unusual, or special, or uncommon" but not necessarily circumstances that are "unique, or unprecedented, or very rare".[2]

[6] Reason for delay: Both immediately before and in the three weeks following his dismissal, Mr Wilson says he was very sick with a bad cough and infection. He believes he may have had coronavirus but was not tested. At the time, testing was not widely available and was restricted to particular groups. Mr Wilson was also suffering from severe depression and anxiety, nightmares and regular panic attacks linked to a history of repeated family violence, which escalated as a result of the COVID-19 pandemic and public health orders to stay at home. The evidence on this issue is confidential but I am satisfied after hearing from Mr Wilson that in the weeks following dismissal, he was in a bad way.

[7] On 27 March 2020, Mr Wilson says he attempted to make an application for unfair dismissal remedy on the Commission's website but that he was unsure if it had been processed. The Commission's records show that an unsuccessful attempt to file the application was made by Mr Wilson on 28 March 2020. Mr Wilson accepts that he may have mistaken the date. The difference is not material because on either date, the application was already out of time by one or two days respectively.

[8] Mr Wilson waited two weeks for a response from the Commission, assuming it may be dealing with a higher than usual workload as a result of the pandemic. He finally called on 9 April 2020 and was told that his application had not successfully lodged due to an IT error. He immediately filed another application.

[9] I am satisfied that Mr Wilson's state of ill health, the effect of the pandemic on his personal safety and an online lodgement error effectively prevented him from making the application earlier than he did. The reasons for delay weigh in favour of a grant of additional time.

[10] Whether the person first became aware of the dismissal after it had taken effect: This is not a relevant consideration. Mr Wilson was told of the dismissal at the time it took effect on 5 March 2020. He was not given any reason for the dismissal until 5.00pm on 6 March 2020 by email.

[11] Any action taken by the person to dispute the dismissal: After receiving the letter of termination, Mr Wilson sent an email to the HR Manager, Francis Tsang, on 6 March 2020 with his version of events and disputing the reasons for dismissal. He stated that he would be contacting "fair work" the following Monday. He did not do so, because personal and environmental circumstances meant that he was effectively in "survival mode" over the coming weeks. On 28 March 2020, he attempted to lodge the application but was unsuccessful. Had he been successful, the application would still have been 2 days late. In the circumstances, I do not weigh Mr Wilson's conduct against a grant of additional time.

[12] Prejudice to the employer (including prejudice caused by the delay): Quatius Logistics says it has experienced a 40% reduction in turnover since the COVID-19 pandemic began. It needs to focus on its business and the current challenging environment so that it can continue to operate and retain as many business functions and employees as possible. It also points to the difficulty of obtaining witness evidence in light of a reduction in staff due to the pandemic. While reduction in turnover alone will not always be sufficient to establish prejudice in matters of this kind, I accept that prejudice may arise as a consequence of unforeseen effects of the pandemic, including a reduction in staffing after the dismissal and the company's more limited ability to respond effectively to the application. The prejudice is contained to some, but not all witnesses, as it seems likely that at least three are still working at the Dandenong warehouse (one in her capacity as client, rather than employee). This matter weighs against a grant of additional time.

[13] Merits of the application: The merits of this case are arguable for both parties. Mr Wilson says he was wholly denied procedural fairness in relation to the dismissal. The material filed to date tends to support the proposition. There is also a question of whether there was a valid reason for dismissal in relation to failure to attend work without notice on 5 March 2020, where evidence produced by Mr Wilson indicates that notice may in fact have been provided. On the other hand, Quatius Logistics says Mr Wilson's employment was affected by a range of difficulties and his more recent conduct in relation to one employee in particular effectively amounted to serious misconduct. Whether the allegations in relation to performance and conduct are borne out will depend on the evidence given at hearing. On balance, this is a neutral consideration.

[14] Fairness as between the person and other persons in a similar position: Mr Wilson submits that he has been treated differently to another employee, Victor, who presented with similar workplace behaviours to those complained about in relation to Mr Wilson but was not summarily dismissed. Mr Wilson says that Victor was instead moved to a different warehouse, allowed to become a casual and given warnings. Quatius Logistics disputes the comparison and there is no evidence other than observations of Mr Wilson before me about the particular circumstances pertaining to Victor's employment. I regard it as a neutral consideration.

[15] I find that there are exceptional circumstances in this case arising from the link between the timing of the dismissal, serious family violence experienced by Mr Wilson which was exacerbated by the requirement to stay at home in response to the COVID-19 pandemic, his medical condition as well as the online system error that occurred when he first attempted to lodge his application with the Commission.

[16] On balance, the reasons for delay and steps taken to dispute the dismissal in the context of those reasons outweigh the prejudice to Quatius Logistics if the application proceeds. I consider that it is appropriate that a further period of time be allowed for Mr Wilson to file his application.

[17] The jurisdictional objection is dismissed.

[18] The time within which Mr Wilson is required to file his application for an unfair dismissal remedy is extended to 9 April 2020.

[19] The matter will now be listed for conciliation.

[1] Fair Work Act 2009 (Cth), s 394(2).

[2] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1.

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