Aaron Cox v Epsa Pacific Pty Ltd

Case •

[2023] FWC 3289

•

8 DECEMBER 2023
[2023] FWC 3289

FAIR WORK COMMISSION
REASONS FOR DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Aaron Cox
v

EPSA Pacific Pty Ltd

(U2023/10613)

COMMISSIONER JOHNS

MELBOURNE, 8 DECEMBER 2023

Application for an unfair dismissal remedy – circumstances not exceptional – application dismissed.

  1. The following reasons for decision relate to my decision on 8 December 2023 to dismiss an application for an extension of time.[1]

  1. On 27 October 2023, Mr Aaron Cox (Applicant), made an application to the Fair Work Commission (Commission) under s. 394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with EPSA Pacific Pty Ltd (Respondent).

  1. The information provided by both the Applicant and the Respondent indicates that the application may have been made out of time.

  1. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

  1. Section 394(2) of the FW Act provides that such an application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

Permission to appear

  1. The Respondent sought to be represented in the matter.  I heard from both parties on the question of representation before the Commission.

  1. Having considered the submissions of the Applicant and the Respondent, I determined that it would not be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself effectively.

  1. Accordingly, at the hearing on 8 December 2023, both parties were self-represented.

Submissions

  1. In addition to his Form F2 Application, the Applicant sent an email to the Commission explaining why he did not believe his application was out of time.

  1. The Respondent filed a Form F3 and objected to the matter proceeding because the application was out of time.

When did the dismissal take effect?

  1. It is not seriously in contention, and I so find, that the dismissal took effect on 5 October 2023.

When was the application made?

  1. It is also not in dispute, and I so find, that the application was made on 27 October 2023.

Was the Application made within 21 days after the dismissal took effect?

  1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect”.[2]

  1. As I found above, the dismissal took effect on 5 October 2023. The final day of the 21 day period was therefore 26 October 2023 and ended at midnight on that day. As I found above, the application was made on 27 October 2023.  Therefore, the application was made 1 day late.

  1. Because 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. That is to say, I need to consider whether to grant the Applicant an extension of time.

Was the application made within such further period as the Commission allows?

  1. Under s. 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.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

  1. I set out my consideration of each matter below.

Reason for the delay

  1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 26 October 2023. The delay is the period commencing immediately after that time until 27 October 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

  1. 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.[5]

  1. 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.[6]

Submissions

  1. The Applicant made a candid submission before me that the delay was due to a miscalculation on his part, which led him to believe that he must file his application by midnight on 27 October 2023. He also outlined in his email to the Commission that he was not provided with the termination letter until 18 October 2023.

  1. The Respondent submitted that the delay between 5 October and 27 October 2023 is unexplained. The Respondent further submitted that the late provision of the termination letter should not be accepted as a valid reason for the delay but that in any event, once provided with the letter, the Applicant still waited until 27 October 2023 to file his application.

Evidence

  1. It is not in dispute that the Applicant was dismissed with immediate effect on 5 October 2023 and the Applicant was so aware.

  1. In light of the same, the only reason before me is the candour concession by the Applicant concerning the miscalculation of the 21 day period.

  1. It has been established that ignorance of the law, in the absence of other circumstances, cannot constitute exceptional circumstances.[7]

  1. The Applicant chose to wait until the miscalculated last day to file his application. Whilst unfortunate, this is not an exceptional circumstance.

  1. Therefore, I am not satisfied that there is a satisfactory explanation for the delay.

Findings

  1. Having regard to the above, I am not satisfied that the reason for the delay evidences exceptional circumstances.  This factor weighs against granting an extension of time.

Did the Applicant first become aware of the dismissal after it had taken effect?

  1. It is uncontested that the Applicant was dismissed in-person with immediate effect on 5 October 2023.

  1. Therefore, the Applicant had the full benefit of 21 days in which to make an in-time application.  He did not do so. This factor weighs against granting an extension of time.

What action was taken by the Applicant to dispute the dismissal?

  1. It has been affirmed in a recent Full Bench decision of the Commission in Spenser Clarke v Uniti Group Ltd[2023] FWCFB 133 (Spenser), that for this factor to be enlivened, there is no need for the applicant to engage in any formal internal process.[8] But rather a mere email correspondence putting the respondent on notice that it disputes the dismissal may weigh in an applicant’s favour. Whilst this decision was in the context of a general protections application, it is also equally applicable in an unfair dismissal application.

Submissions

  1. The Applicant submitted before me that he emailed the Respondent seeking a letter of termination. 

Evidence

  1. The Applicant provided a copy of an email sent to the Respondent on 16 October 2023 noting the dismissal was without any procedural fairness and requested a termination letter.

Findings

  1. Despite the delay, the action taken by the Applicant to dispute the dismissal weighs in favour of granting the Applicant a further period to make his application.

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. The Respondent submitted before me that there would be no prejudice should the extension of time be granted.

  1. 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. However, at the same time the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[9] Therefore, this is a neutral factor in deciding whether to grant an extension of time.

What are the merits of the application?

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

  1. The Applicant’s main contention as to why the dismissal was unfair related to a lack of procedural fairness in not following an investigation process to substantiate the allegations against him.

  1. The Respondent cited the valid reason of dismissal to be the Applicant’s conduct which caused a serious and imminent risk to the health and safety of his colleagues. The Respondent also cited various other incidents leading up to 5 October 2023 as contributing factors.

  1. Having examined these materials, it is evident to me that 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. 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 section 366(2)(d)”,[10] and the same applies to section 394(3)(e).

  1. In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. This is especially due to the nature of the allegations which will likely require expert evidence and witness statements to ascertain their truth.

  1. This is a neutral factor in deciding whether to grant a further period for the Applicant to make his application.

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

  1. Neither party brought to my attention any relevant matter concerning this consideration. However, there are previous cases of the Commission where extension of time has been refused where similar miscalculations have occurred.[11]

  1. However, in the hearing before me I observed that there have been many decided cases in the Commission where a delay of 1 day has not resulted in an extension of time being granted.  I asked the Applicant why his matter should be any different.  He had no response.

  1. In relation to this factor, I therefore find that this weighs against granting an extension of time.

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

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a)   the reasons for the delay (as stated above);

(b)   the Applicant being aware of the dismissal at the time that it took effect;

(c)   the actions taken by the Applicant to dispute the dismissal;

(d)   the absence of any prejudice to the employer;

(e)   the merits of the application being unable to be determined ahead of a hearing of the evidence; and

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

  1. Briefly, 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.[12] 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.[13]

  1. Having regard to all of the matters at s. 394(3) of the FW Act and the findings I have made above, I am not satisfied that there are exceptional circumstances.

Conclusion

  1. 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

Appearances:

Mr A Cox for himself
Ms C Nguyen for the Respondent

Hearing details:

2023
Melbourne (video hearing)
8 December.


[1] PR769196.

[2] 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.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

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

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[7] Ms Susan Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].

[8] Spenser Clarke v Uniti Group Ltd[2023] FWCFB 133, [35].

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[11] E.g. Kevin Howard v Autosports Group Limited[2021] FWC 711; E.g. Michael Harvey v Compass-Group (Australia) Pty Ltd[2021] FWC 1375.

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

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

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Spenser Clarke v Uniti Group Ltd [2023] FWCFB 133