Andrew Hooper v Kawasaki Motors Pty Ltd [2023] FWC 1530

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Andrew Hooper v Kawasaki Motors Pty Ltd (U2023/3644) DEPUTY PRESIDENT ROBERTS SYDNEY, 26 JUNE 2023 Unfair dismissal application filed out of time - circumstances not exceptional – application dismissed [1] Andrew Hooper (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that he has been unfairly dismissed from his employment with Kawasaki Motors Pty Ltd (Respondent). The Applicant seeks a remedy in relation to his dismissal. [2] Applications for unfair dismissal must be made within 21 days after the dismissal takes effect1 or within such further period as the Commission allows under s.394(2)(b) of the FW Act. The Respondent has objected to the application on the ground that the application is out of time. [3] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time or alternatively, extend the time period by which an application can be made. [4] The Applicant did not contend that the application was filed within the 21-day time period. Rather, he sought that the Commission extend the period by which an application can be made. The Respondent opposed such an extension. The parties were directed to file material in support of their respective positions on the question of whether the Commission could be satisfied that exceptional circumstance exist and should exercise its discretion to extend the relevant time period for the lodgment of the application. The matter was listed and dealt with on 15 June 2023 by way of private conference. The Relevant Dates [5] It is not in dispute that the dismissal took effect on 4 April 20232. Nor is it in dispute that the application was made when the Applicant lodged the application online on 27 April 2023. I am satisfied that those are the relevant dates for the purposes of determining whether the application was within time. [2023] FWC 1530 DECISION -- 1 of 7 -- [2023] FWC 1530 2 [6] The calculation of the 21-day time period does not include the date the dismissal took effect3. Where the final day of the 21-day period falls on a public holiday, the prescribed time is extended until the next business day. 4 Given that the date the dismissal took effect was 4 April 2023, and having regard to the Anzac Day public holiday on 25 April 2023, the 21-day period for the filing of an application ended at midnight on 26 April 2023. [7] As the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows. Was the application made within such further period as the Commission allows? [8] Under section 394(3) of the FW Act, the Commission may 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: (a) the reason for the delay; and (b) whether the Applicant first became aware of the dismissal after it had taken effect; and (c) any action taken by the Applicant to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the Applicant and other persons in a similar position. [9] Each of the above matters must be considered in assessing whether there are exceptional circumstances.5 [10] I set out my consideration of each matter below. Reason for the delay [11] The delay is the period commencing immediately after the 26 April 2023 until 27 April when the application was lodged. Circumstances arising prior to that delay may be relevant to the reason for the delay.6 [12] 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.7 [13] 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.8 -- 2 of 7 -- [2023] FWC 1530 3 Submissions [14] The Applicant submitted that the delay was caused by his misunderstanding of which form he had to lodge to pursue a remedy for unfair dismissal. He said this misunderstanding was attributable, in part at least, to some incorrect advice he received from a colleague. He said he did file an application in relation to his dismissal on or about 25 April but was later advised that this was the wrong form. He submitted that the Respondent’s failure to finalise his termination pay until some weeks after his termination contributed to the delay. The Applicant also submitted that he has a serious medical condition and he maintained that this hindered his ability to navigate the process for lodging an unfair dismissal application. [15] The Respondent did not make any substantive submission going to the reasons for the delay nor did they challenge the Applicant’s submissions or evidence about the reasons. The Respondent made a brief submission as to why the Applicant’s termination payment was not finalised until mid-April. Evidence [16] The Applicant’s evidence was that he lodged an unlawful termination application with the Commission on or about 25 April 2023 and was notified shortly thereafter by Commission staff that this was the wrong form. He said he asked if the form he had lodged could be converted to an unfair dismissal application but was told this was not possible. He said that he acted as soon as possible to lodge the correct form once he was made aware of the error. The Applicant had also completed an unfair dismissal form but did not lodge it when he filed the unlawful termination form. [17] The Applicant said he had obtained some advice from a colleague, whom he thought to be more knowledgeable about dismissal matters, prior to lodging the unlawful termination form but the advice proved to be incorrect. The colleague was not legally qualified. He was a human resources manager. The Applicant said in hindsight he should have obtained proper advice or lodged both forms and a General Protections form, at the same time. The Applicant accepted that he was aware that there was a 21-day time limit from a time shortly after his dismissal had taken effect and that he was actively trying to meet the deadline. [18] The Applicant also gave evidence that the Respondent caused delay to the completion of an application by not finalising his termination pay until more than 14 days after his termination. [19] The Applicant gave some evidence that his medical condition made the task of working through the process for lodging an application more difficult and contributed to the delay. The existence of the medical condition from the Applicant was not contested. It is not necessary for the purposes of this decision to go into the details as to the nature of the medical condition. No medical evidence was called. None of the Applicant’s evidence was challenged by cross- examination. Findings -- 3 of 7 -- [2023] FWC 1530 4 [20] The Applicant gave some evidence about the impact of his medical condition and although there was no medical evidence as to the status of the condition, it was not contested that the Applicant’s medical condition would have made the process more difficult for him. I accept that to be the case. However, it was not contended that this was the entire explanation of the delay but rather a contributing factor. [21] I do not consider that the date of the finalisation of the Applicant’s termination pay provides a satisfactory explanation for the delay. [22] I am satisfied that the Applicant made some effort to lodge an appropriate application within the relevant time period. I am also satisfied that the Applicant knew he had a deadline to meet from some time shortly after his termination. I find that at some point prior to lodgment, he received some incorrect advice from a colleague about which form he should lodge and that this contributed to the error and the delay. I also conclude that the Applicant moved relatively quickly to rectify the situation once he was made aware of the error. However, I do not consider that this sufficiently explains the delay in this case. The Applicant was not being represented by the colleague. He simply sought that person’s views. Inevitably there were some risks attached to placing such reliance on the colleague for advice and not lodging a document until near the very end of the time period. Overall, mistaken reliance on this advice, by itself or in combination with the matter referred to in the preceding two paragraphs, does not provide an acceptable reason for the delay. This weighs in favour of the Respondent. Did the Applicant first become aware of the dismissal after it had taken effect? [23] It was not in dispute, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. I find that to be the case. This weighs against the Applicant. What action was taken by the Applicant to dispute the dismissal? [24] Aside from the lodgement of an unlawful termination application on or about 25 April 2023, which does not appear to have ever been provided to the Respondent, the Applicant conceded that he did not take any actions to dispute his dismissal prior to making the application on 27 April 2023. I am satisfied that that is the case. This weighs against the Applicant. What is the prejudice to the employer (including prejudice caused by the delay)? [25] It is not in dispute that there would be no prejudice to the Respondent if an extension of time were to be granted. I conclude that is the case here although I note that the mere absence of prejudice to the Respondent is not, without more, a sufficient basis on which to grant an extension of time9. However, the absence of prejudice assists the Applicant, to a limited degree, in the overall assessment. What are the merits of the application? [26] The Applicant submitted that in weighing the merits of the application, the Commission should take into account the fact that his termination arose shortly after he had made a complaint about the workplace behaviour of another employee. He submitted that this complaint prompted -- 4 of 7 -- [2023] FWC 1530 5 his termination. The Applicant submitted that the question of his performance had not arisen until the complaint had been made, although he accepted he had been given a written warning in late 2022. He submitted that the Respondent did not follow a proper process leading up to his termination and that if they had followed a proper process, he would have been on notice that his termination was a possibility. He said that his absences from work did not justify his termination. He said he was unable to work a full week since his diagnosis and that in any case, there was an “implied flexibility arrangement” with the Respondent whereby if he did not work, then other than amounts for the accrual of leave, he did not get paid. [27] The Respondent submitted that the Applicant had been engaged in a full-time capacity but had been unable to work full-time hours for an extended period as a result of his illness. They said that the Applicant’s absences and late arrivals were putting pressure on the business and other work colleagues. The Respondent submitted that they had followed a reasonable process in providing a written warning and follow-up discussion. They maintained that they had made genuine efforts to accommodate the Applicant’s inability to work full-time over an extended period but that his attendance record remained unsatisfactory. The Respondent refuted the claim that the termination had been made because of a workplace complaint by the Applicant. They said the complaint had been adequately dealt with some months before the termination. They disputed that there was any “flexibility arrangement” of the kind described by the Applicant. They submitted that they had offered the Applicant temporary casual work after his termination to mitigate the effects of termination which the Applicant had declined. [28] It is apparent from the above that there were a number of key considerations going to the merits that were contested. These include the reason for the dismissal and process followed by the Respondent leading up to the decision to dismiss the Applicant. It is not ordinarily the case that the Commission would embark on a detailed consideration of the substantive case in the context of an extension of time application10. A proper determination of these matters would require a full hearing and an assessment of the evidence, and possibly further evidence, in detail. Nonetheless, having considered the state of the evidence and the submissions, I find that the Applicant’s case is not without merit and that this should weigh in his favour for the purposes of deciding whether or not exceptional circumstances exist. Fairness as between the Applicant and other persons in a similar position [29] Neither party brought to my attention any relevant matter concerning this consideration. I therefore find that there is nothing for me to weigh under this heading in my assessment of whether there are exceptional circumstances. Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? [30] The test for exceptional circumstances is well known. 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.11 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.12 -- 5 of 7 -- [2023] FWC 1530 6 [31] Ultimately the task for the Commission is to weigh each one of the factors referred to in s. 394(3) and make an evaluative judgement as to whether exceptional circumstances exist. Although I am of the view that there are considerations that weigh in the Applicant’s favour, on balance I am not persuaded that the circumstances were exceptional in the relevant sense. The Applicant had the full benefit of the time period for lodgment. Although the Applicant was labouring in difficult circumstances to file an application, including because of his medical condition, and even accepting that the Applicant managed to file an incorrect application within the time frame, the circumstances which prevailed were not exceptional. A misapprehension as to the type of form that had to be lodged, including a misapprehension based on informal advice from a third party, is not by itself or in combination with the other circumstances in this case, enough to constitute exceptional circumstances. Having regard to all of the matters in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances. Conclusion [32] Having concluded that there are no 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. An order to that effect will be issued separately. DEPUTY PRESIDENT Appearances: Mr Andrew Hooper (Applicant) Mr Peter Spindlow (Respondent’s National Technical Services Manager) Mr Claudio Simeone (Respondent’s Administration Manager) Hearing details: By Video using Microsoft Teams at 9:00am AEST on Thursday, 15 June 2023. Printed by authority of the Commonwealth Government Printer <PR763602> -- 6 of 7 -- [2023] FWC 1530 7 1 Section 394(2)(a). 2 See Application F2 page 2 and Employer Response F3 page 4. 3 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. 4 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A; Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877. 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 6 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 8 Ibid, [40]. 9 Brodie Hans v. MTV Publishing Ltd (1995) 67 IR 298. 10 Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14] 11 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 12 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. -- 7 of 7 --