Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Brendan Paul Johnstone
v
Scotch College
(U2022/5947)

Unfair dismissal application filed out of time –circumstances not exceptional – application dismissed

[1] Mr Brendan Paul Johnstone, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Scotch College whom I will refer to as the Respondent.

[2] Before granting a remedy, the Commission must be satisfied that the application was not made out of time.

[3] Having heard the parties, I now proceed to give these reasons for my decision ex tempore.

[4] This published decision reflects the decision I gave ex tempore on 7 July 2022 with corrections for grammatical, syntactical and any other insignificant errors.

[5] An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

[6] In his F2 application the Applicant submits that he was not sure as to the date his dismissal took effect as he was still on the paid 4-week levy, so still employed at this point. In his outline of argument, the Applicant submits that he was notified of his dismissal on 11 May 2022, and it came into effect on 12 May 2022. At the Hearing before me, the Applicant gave evidence that he understood from the Respondent’s email correspondence of 11 May 2022 (the Termination Letter), which he acknowledges receiving on 11 May, that his dismissal took effect on that day, but that the Commission website information stated that the dismissal took effect the following day, being 12 May.

[7] The Respondent claims the Applicant was notified of the dismissal on 11 May 2022 via a letter of termination and that the dismissal took effect on that day.

[8] If the dismissal took effect on 12 May 2022 as alleged by the Applicant, it is within time. For reasons set out later in the decision, I have determined that the dismissal took effect on 11 May 2022 and is therefore 1-day out of time.

[9] The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[10] As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.

[11] Before considering each of these matters I will deal with the effective date of termination. On 11 May 2022, the Respondent issued the Applicant with a Termination Letter relevantly providing as follows;

“As a consequence of your decision not to become vaccinated against COVID-19, you are unable to meet the requirements of your employment contract with the School by attending onsite to undertake the duties of your role and you are also unable to perform the inherent requirements of your position. The School has now made the decision to terminate your employment effective today, 11 May 2022.

You are entitled to 4 weeks’ notice of termination or payment in lieu of such notice. You are hereby given notice of termination of your employment effective today, 11 May 2022, on the basis that you will be paid in lieu of such notice. I therefore confirm that today, 11 May 2022, will be your last day or (sic) work. Your final pay is outlined on the summary attached, including payout of accrued and untaken long service leave and annual leave, and pro rata leave loading, this will be processed on 13th May 2022.”

(Emphasis added)

[12] The Applicant does not dispute receiving the letter on 11 May 2022. He states that the Fair Work Commission website provides that “the 21 days for lodgment does not include the date that the dismissal took effect. This means that day one commences the day following the dismissal.” It is apparent from the Applicant’s evidence that he has misunderstood and or miscalculated the time for filing his unfair dismissal application. In my view, the Respondent’s Termination Letter is unambiguous in notifying the Applicant that his effective date of termination is 11 May 2022. The Applicant concedes as much during the hearing. On that basis, the application is 1-day out of time and I now turn to consider each of the factors set out in s.394(3).

The first matter is the reason for the delay

[13] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 1 June 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 8:56PM on 2 June 2022, when the application was lodged with the Commission, although circumstances arising prior to that delay may be relevant to the reason for the delay.

[14] As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.

[15] As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.

[16] The Applicant submitted that the delay was for the following reasons:

•  The Applicant had been contacting lawyers and was unaware of the 21-day time limit and it was only when his accountant told him to go on the Fair Work Commission website that he became aware.

•  The Applicant was feeling depressed since his termination and has 2 young children, an 8 week old baby and 21 month old son to care for.

•  He needed to get away for a break with his family and go see family and did so for 3 or 4 days, approximately a week after the termination of his employment.

•  The Applicant had been experiencing technical difficulties with his home internet provider and was unable to get the letter sent off on 31 May 2022 when the forms were completed. He did not think to access a public library or an internet café as he honestly did not realize that the 21 day time limit was such a big deal.

•  The Applicant was unsure as to the termination because he was on 4 weeks paid notice and believed he was still technically employed.

[17] In relation to the reason for the delay, the Respondent submitted that there is no credible reason for the delay.

[18] On the material before I find that the reasons for the delay are the Applicant’s unfamiliarity with the 21-day time limit, uncertainty as to the effective date of termination, feelings of depression and concern for his young family and experiencing technical difficulties with his home internet provider on 31 May 2022.

Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect

[19] Based on the material before me, I am satisfied dismissal took effect on 11 May 2022 and that the Applicant became aware of the dismissal on that date.

The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal

[20] The Applicant submits and I accept that he took some action to dispute the dismissal in the form of a reply email to the Respondent indicating that he did not consent to the dismissal.

I must now consider the prejudice to the employer (including prejudice caused by the delay)

[21] The Applicant submits that the Respondent has suffered no prejudice as a result of the lateness of the application and that any unfairness is more angled towards him.

[22] The Respondent submits that it would not suffer prejudice if an extension of time were granted.

[23] Having regard to the submissions above, in all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. I note that the mere absence of prejudice is an insufficient basis to grant an extension of time.

I will now turn to the merits of the application

[24] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

[25] The Respondent submits that the Applicant was dismissed as a consequence of his decision not to become vaccinated against COVID-19 and as such, was unable to meet the inherent requirements of his role.

[26] The Applicant contends that he provided significant private medical evidence that has not been disclosed to anyone other than myself and my doctors before, as to why I cannot be vaccinated.

[27] The merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter” in an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.

[28] In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

[29] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position

[30] The Applicant submits that the Commission should take into consideration that he has Chron’s disease and ...had a medical episode on site working at the college for anaphylaxis, which gives you exemption to the vaccination. Also, I know a lot of people, including family members, who have had adverse reactions to the COVID 19 vaccination. One of those reactions being death.

[31] Having regard to the submissions above, in all the circumstances and on the materials provided, I consider the issue of fairness neutral in this matter.

I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings

[32] As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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. 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.

[33] The Applicant indicates that one of the reasons for the delay in lodging his application is that he was ignorant as to the lodging requirements as he has never been through this process before. Further, the Applicant appears to have mistakenly concluded that the termination of his employment became effective on 12 May 2022. In Nulty, the Full Bench noted that ignorance of the statutory time limit is not of itself an exceptional circumstance.

[34] The Applicant also states that he was unsure as to the termination because he was on 4-weeks paid notice and believed he was still technically employed. In light of the correspondence dated 11 May 2022 from the Respondent to the Applicant, which the Applicant acknowledges having received on 11 May 2022, it is not apparent to me how the Applicant could be mistaken as to the effective date of termination. As stated above, the letter provides in unambiguous terms that the termination is effective as of 11 May 2022, that the Applicant’s last day of work was 11 May 2022 and that the Respondent had elected to pay the Applicant in lieu of 4 weeks’ notice. In those circumstances, I do not accept that the Applicant could reasonably be mistaken as to this matter.

[35] The Applicant also points to his mental state and concerns over the effect of the dismissal on his young family. Whilst I am sympathetic to the Applicant’s position and indeed any employee who suffers the loss of their employment, I note that the only medical evidence before me predates the termination of the Applicant’s employment and that there is no medical evidence before the Commission as to the effect of the Applicant’s mental condition on his capacity to file his unfair dismissal application on time.

[36] I also observe that the application on its face makes clear the importance of the time limit. On the first page of the Form F2, under the heading ‘lodging your completed form’, it states ‘Lodge your application, along with any accompanying documents, with the Commission within 21 calendar days after your dismissal took effect. I also note that the procedure for lodging an unfair dismissal application is a process which involves completion of a very simple form in any one of a variety of very simple ways. Again, the application on its face states that “You can lodge your application online using the Commission’s Online Lodgement Service (OLS) or by post, fax or email, or in person at the Commission’s office in your state or territory.”

[37] The Applicant further submits that he had internet difficulties on 31 May 2022 when he started to complete the relevant forms. I observe that had the Applicant lodged his unfair dismissal application on that date it would have been within time. The Applicant concedes that he started to complete the unfair dismissal application on 31 May but did not attend a public library or internet café to send the document because he did not appreciate the seriousness of the 21 day time limit.

[38] I have considered the fact that the application was lodged one day late but, in this matter, I am inclined to agree with the comments of Deputy President Gostencnik in Ozsoy v Monstamac Industries Pty Ltd, [2014] FWC 479 where the Deputy President makes the following observation:

“[21] The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional. The absence of an acceptable explanation for the delay weighs against the Applicant in this case.”

[39] Ultimately, I am not satisfied that the Applicant offers a reasonable explanation for failing to complete and lodge his application within the required period. I have made findings above as to the Applicant’s submissions as to unfamiliarity with the legal process and the other factors relied on by the Applicant. I do not believe the circumstances in this case individually or taken together support a finding of a reasonable explanation for the delay.

[40] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[41] Having regard to all of the matters that I am required to take into account under s.394(3), I am not satisfied that the requisite exceptional circumstances exist. There is no credible, acceptable or reasonable explanation for the delay in filing the application. Apart from some action taken by the Applicant to dispute the dismissal, the other factors are neutral in this matter. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

Conclusion

[42] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed.

COMMISSIONER

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<PR743564>

Appearances:

Mr B. Johnstone for himself
Ms R. Imer for the Respondent

Hearing details:

2022
Melbourne
7 July