The attached document replaces the document previously issued with the above code on 8 December 2020.

[2020] FWC 6109

Fair Work Act 2009

s.394 - Unfair dismissal

Add Staff Recruitment T/A Add Staff Recruitment

Application for an unfair dismissal remedy - Application filed outside time required in s. 394(2) - No exceptional circumstances established - Extension of time to make application refused - Application dismissed.

[1] This Decision concerns an application by Mr Sean Bagster (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Add Staff Recruitment T/A Add Staff Recruitment (the Respondent). In his Form F2 Application for an unfair dismissal remedy, the Applicant states that his employment was terminated on 29 July 2020 and that the termination took effect on that date. There is no dispute from the Respondent as to the date of termination and its effect. The Respondent in its Form F3 Response objects to the application on the basis that it asserts that the application was filed out of time.

[2] The application was filed with the Commission on 19 September 2020. By virtue of s. 394(2) of the Act an application under s. 394 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 394(3). Assuming that the employment relationship was terminated on 29 July 2020, the application was required to be made by 19 August 2020. It was made 31 days outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.

[3] On 30 September 2020, Vice President Catanzariti issued directions for the Applicant to provide reasons as to why an extension should be granted having consideration to the matters in s.394(2) of the Act, and for the Respondent to file a Form F3 - Employer Response with the Commission. The matter was subsequently allocated to me for hearing and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether further period should be granted.

[4] The Applicant represented himself at the hearing. The Respondent was represented by Mr Jordon Carlisle from Master Electricians Australia, Queensland Industrial Organisation of Employers, a recognised State-registered association of employers and accordingly, permission was not required for Mr Carlisle to appear.

[5] The relevant background is as follows. On 29 July 2019, the Applicant was employed by the Respondent and placed at a number of workplaces. During the Applicant's employment with the Respondent, he sustained an injury to his right hand at work that resulted in "complete ruptures of 5 tendons, extreme pain, loss of movement and a loss of strength."[1] As a result of this injury, the Applicant engaged in a program of light duties arranged by the Respondent in conjunction with WorkCover from December 2019 and worked for a Company engaged in the installation of solar panels.

[6] On 20 July 2020, nine days prior to the Applicant's dismissal, the Applicant was issued a show cause letter from the Respondent, that was preceded by an internal investigation, as to why his employment should not be terminated on this basis that he fraudulently completed timesheets and that he failed to follow direction of notifying the Respondent and Workcover that he was unable to attend light duties.

[7] On 25 July 2020, the Applicant provided a statement to the Respondent addressing the show cause letter. In the statement, the Applicant stated inter alia that as a result of the workplace accident, he had become extremely anxious and increasingly depressed. The Applicant also expressed his frustration navigating different agencies regarding his workplace accident and related claims.

[8] On 29 July 2020, following consideration of the Applicant's response to the show cause letter, the Respondent issued a termination letter to the Applicant, that was effective immediately, on the basis that the Applicant had fraudulently submitted timesheets for hours which he had not worked.

The approach to deciding whether a further period should be granted

[9] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:

"(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."

[10] The approach to deciding whether there are "exceptional circumstances" in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.[2]

[11] Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.[3]

[12] The assessment of whether "exceptional circumstances" exist requires a consideration of all of the relevant circumstances. As a Full Bench of the Commission observed in Stogiannidis v Victorian Frozen Foods Distributors t/as Richmond Oysters (considering similar provisions in s. 366(2) of the Act):

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay."[4]

[13] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application and does not include the period from the date of the dismissal to the end of the 21 day period.[5] However, the circumstances from the time of the dismissal must also be considered and ultimately a decision made as to whether those circumstances are exceptional circumstances.[6]

[14] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.[7] The circumstances from the time of the dismissal must also be considered and ultimately whether the reason for the delay or part of it constitutes exceptional circumstances.[8] I turn now to consider each of the matters in s.394(3) of the Act.

Reasons for the delay - s.394(3)(a)

[15] As previously noted, the delay which must be considered in determining whether to extend time for making an application is the period beyond the prescribed 21 day period. For the application in the present case to have been filed within time, it was required to be filed by 19 August 2020. It was filed on 19 September 2020, 31 days outside the required time. The majority of circumstances identified by the Applicant in the present case to explain the delay, relate to three agencies allegedly providing conflicting procedural assistance as to the types of claims that can be lodged relating to his dismissal and circumstances relating to the Applicant's mental health. I now turn to the timeline of relevant events relating to the delay as advanced by the Applicant and evidenced by records of the Fair Work Ombudsman tendered by the Applicant.

[16] On 20 July 2020, the Applicant was issued a show cause letter from the Respondent. The following day, the Applicant telephoned the Fair Work Ombudsman (FWO), and according to the FWO record, "Discussed workplace rehabilitation and potential termination."

[17] On 29 July 2020, the Applicant was dismissed by the Respondent with effect from that date. On 7 August 2020, WorkCover Queensland made a decision to cease the Applicant's claim as it was considered that he was not entitled to weekly compensation payments.

[18] On 11 August 2020, the Applicant telephoned the FWO. The FWO record states that during this call with the Applicant they: "Discussed termination of employment at Shuttle Enterprises Pty Ltd. Discussed issues with payment of wages and workers compensation payments". During the Applicant's oral evidence at the hearing, in relation to the call to the FWO on 11 August 2020, the Applicant confirmed that he was advised that if he wanted to lodge an unfair dismissal application, he was required to do so within 21 days of his dismissal, notwithstanding that he was also discussing a claim for unpaid wages. In response to a question as to why he had not filed an unfair dismissal application within the required time, the Applicant said that he had a lot going on at that point and a range of pressing matters in combination - including shock, his personal injury and his deteriorating mental health - meant that time slipped away.

[19] On 11 August 2020, the Applicant lodged an application for the Workers' Compensation Regulator, Office of Industrial Relations, to review the decision made by WorkCover Queensland to cease his claim. On 18 August 2020, the Applicant received an email from the Workers' Compensation Regulator, Office of Industrial Relations, stating this his application for review has been deemed compliant and will proceed to allocation to a Review Officer to be reviewed. The email contains detailed information about what the review involves and what will be reviewed.

[20] 19 August 2020 was the last day for the Applicant to file an unfair dismissal claim within 21 days of his dismissal. On 26 August 2020, the Applicant contacted the FWO by telephone and records indicate that they "discussed unpaid wages and issues with workcover agreement." On 27 August 2020, the FWO contacted the Applicant and discussed their scope of assistance.

[21] The Applicant also stated that approximately one week prior to lodging his unfair dismissal application he contacted JobWatch but was unable to provide an exact date as to when this contact was made. The Applicant further stated that he contacted the office of the Minister for Industrial Relations although no date was advised in relation to when this contact was undertaken.

[22] The Applicant gave oral evidence that he did not lodge the unfair dismissal application within the required time due to the shock of losing his job, his workplace injury, his deteriorating mental health and that the process was new to him. The Applicant also said in his oral evidence that different agencies were pointing him in different directions regarding his injury. The Applicant submitted that WorkCover was directing him to the FWO, and the FWO was advising the Applicant to proceed with a loss of wages claim.

[23] The Applicant also tendered medical certificates from a treating Consultant Psychiatrist, Dr Scott Newman, in support of a further period in which to make his unfair dismissal application being granted. In a statement dated 8 September 2020, Dr Newman said that the Applicant's mental health had deteriorated considerably since his dismissal. Dr Newman also outlined that the Applicant is suffering from mental health issues. In a letter dated 16 September 2020 Dr Newman stated that the Applicant's mental health had declined to such a degree that his capacity to process complex information was impaired and he was not able to reasonably be expected to have achieved the 21 day deadline to submit an unfair dismissal application.

[24] Notwithstanding the Applicant's evidence and that of his treating Psychiatrist, I note that subsequent to his dismissal, and within the 21 day time period for filing an unfair dismissal claim, the Applicant was able to engage with agencies relating to his workers compensation claims. As previously stated, on 11 August 2020, the Applicant lodged an application for the Workers' Compensation Regulator to review the decision made by WorkCover Queensland on 7 August 2020 to cease his claim. This application was made 13 days after the Applicant's dismissal, which is also within the 21 day statutory limited for an unfair dismissal application to be made.

[25] When these matters are considered in the context of the Applicant being informed by the FWO on 11 August 2020, that he was required to file his unfair dismissal application within 21 days of the date his dismissal took effect, I am of the view that the Applicant has not provided a reasonable explanation for the delay in filing his unfair dismissal application. The Applicant has not provided an acceptable or reasonable explanation for any part of the delay in filing his unfair dismissal application in respect of the period from his dismissal on 29 July 2020 to 19 August 2020, the date by which he was required to file. The events as described by the Applicant regarding the period from 19 August to 19 September 2020, do not provide an acceptable or reasonable explanation for this delay. This is a matter that weighs against a further period being granted.

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

[26] It is not in dispute that the Applicant became aware of the dismissal on the date that it took effect - 29 July 2020 - as evidenced by the Applicant's Form F2 and submissions. There was no confusion or lack of clarity which could have contributed to the delay and this is a factor that weighs against the exercise of discretion to grant a further period for the application to be made.

Any action taken by the person to dispute the dismissal - s.394(3)(c)

[27] There is no evidence that the Applicant took any action to dispute his dismissal other than filing an unfair dismissal application. although he contacted the FWO and was informed that he had 21 days to make an unfair dismissal application, the Applicant did not do so. On balance, this is not a matter that weighs in favour of a further period being granted and is a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay) - s.394(3)(d)

[28] I cannot identify any prejudice that would accrue to the Respondent, other than the usual prejudice of being required to defend the application if I decided to allow a further period within which the application could be made. The delay is not so extensive that there would be any difficulty involving recollection of events or availability of relevant witnesses. By itself the absence of prejudice would not warrant a conclusion that there are exceptional circumstances nor provide a proper foundation to grant an extension of time under s.394(3) of the Act. However, the absence of prejudice does favour the Applicant, and weighs in favour of a further period being granted.

The merits of the application - s.394(3)(e)

[29] In the matter of Kornicki v Telstra-Network Technology Group[9] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."[10]

[30] After considering the material filed by the parties it is clear that there are factual disputes between the parties. I do not consider that the application is totally without merit, although it is not possible to say that it has strong prospects of success.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

[31] It is not clear whether this criteria requires consideration by the Commission of the position of other persons dismissed by the same employer or whether it also contemplates that the Commission consider the position of other persons generally who have sought further periods in which to make applications on similar grounds. The first approach may be relevant in cases where a number of employees are dismissed at the same time or by the same employer and some of those employees are granted a further period and some are not. The latter approach may require comparison of the circumstances of a particular applicant whose case is being considered by a member of the Commission to be compared with those of applicants in other cases considered by other members of the Commission where a further period is sought on the same or similar grounds.

[32] There are no other employees of the Respondent in the Applicant's position. Accordingly, this matter is a neutral consideration.

[33] Having regard to the matters I am required to take into account under s. 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case. This is so whether the various circumstances are considered individually or together. The application for a further period is refused and the Applicant's unfair dismissal application must therefore be dismissed. An Order to that effect will issue with this Decision.

Mr J Carlisle, Master Electricians Australia, Queensland Industrial Organisation of Employers on behalf of the Respondent.

[1] Applicant's submission dated 25/07/2020.

[2] Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.

[3] Nulty v Blue Star Group [2011] FWAFB 975.

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] - [39].

[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[8] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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