Adrien Eddy v Protection Engineering Pty. Ltd
[2024] FWC 2862
•15 OCTOBER 2024
| [2024] FWC 2862 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adrien Eddy
v
Protection Engineering Pty. Ltd.
(U2024/10119)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 15 OCTOBER 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Mr Adrien Eddy (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, Protection Engineering Pty Limited (Respondent).
The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).
I conducted a hearing, by telephone, on 10 October 2024 in relation to the Applicant’s request for an extension of time.
The Applicant’s dismissal from his employment with the Respondent took effect on 6 August 2024. The Applicant lodged his unfair dismissal application in the Commission on 28 August 2024.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 27 August 2024. The application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[1] 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.[2]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person 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 person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[5]
Relevant facts and submissions
In his unfair dismissal application, the Applicant gave the following explanation for his application being filed outside the 21 day period provided for in the Act:
“I was provided advice via the Fair Work Helpline that I was unable to make a claim due to me signing a previous warning. I then sought further independent advice and upon review of my case it was identified that there were failures in the termination process, resulting in me not receiving a fair and just process. I requested this advice on 26th August, prior to the 21 day limit but only received the information today.”
In an email to the Commission sent on 13 September 2024, the following further explanation was given in relation to the Applicant’s communication with the “Fair Work Helpline”:
“On 13 August 2024, Adrien contacted the Fair Work Helpline for advice on his potential entitlement to lodge an Unfair Dismissal Application. He was advised that his dismissal was not unfair on the basis that his employer had made him sign previous disciplinary outcome letters. As the advice was from the Fair Work Helpline, Adrien believed he was not entitled to lodge a claim…”
The Applicant gave evidence on 10 October 2024 that the content of the email sent to the Commission by his representative on 13 September 2024 was true and correct.
On 20 September 2024, the Applicant was asked to provide his consent to any recording of his communication with the Fair Work Helpline at the Commission on 13 August 2024 being provided to the Respondent. The Applicant provided his consent.
The Commission was unable to locate any recording of a telephone conversation with the Applicant on 13 August 2024. As a result, the Applicant was asked to provide the phone number that was used to place the call to the Fair Work Helpline on 13 August 2024 and the approximate time at which the call was made. The Applicant provided his mobile phone number and stated that he could not recall the approximate time at which he made the call on 13 August 2024. The Applicant was then asked to check his recent calls on his mobile phone to determine the time at which he made the call on 13 August 2024. The following response was received on 23 September 2024 from the Applicant’s representative:
“Adrien has pulled his phone records and gone through them in detail today to be able to provide a time he called as it would have been made via the mobile phone number provided below. Unfortunately, he was unable to locate a phone call to the Fair Work Helpline number…
After speaking to Adrien today, we have determined that while he believed it was the Fair Work Helpline he contacted for the advice when he was briefing me on the events that occurred, it appears to be another employment help line. Unfortunately, we have not been able to identify the particular employment advice helpline contacted with a level of certainty that would make us feel comfortable citing it as part of our extension of time request.
Adrien has requested that I disclose this information to both the Commission of the Respondent as, while he is distressed to discover what he saw as a genuine recollection of the call is in fact not 100% accurate, he wants to continue being honest and transparent with all parties in this matter.
For this reason, I have continued to include the Respondent and the Respondent’s Representative in our communications.
Whilst the helpline may not have been the Fair Work Helpline as stated in our submission for the extension of time, all other information provided in relation to Adrien seeking advice in the advice received remain true and factual.”
The Applicant was then given an opportunity to file and serve a witness statement addressing these matters. The Applicant’s witness statement dated 27 September 2024 includes the following relevant information:
“Post termination of Employment
11.As I had not been advised by Ms Pierrot or any other employee of the Respondent that my employment was at risk, hearing this in the meeting on the 6 August 2024 was a total shock and I was in disbelief of what had occurred.
12.This caused me to quickly spiral, due to feeling embarrassed, disrespected and I started to head towards an all-time low.
13.On 8 August 2024 I started to reach out to get advice as I felt I had not been treated correctly but as it was my first full-time job, I was not sure. Due to my mental state, I do not know how many organisations I reached out on this matter as I was also making numerous in relation to my apprenticeship.
(Refer to Phone Records Part 1 and Part 2)
14.I can confirm that one organisation was Work Justice, where I submitted an enquiry form via their website.
(Refer to Work Justice Enquiry)
15.Sometime over the period from 8 August to 13 August 2024, I received a phone call in which I was advised that due to my signature being on the previous disciplinary outcome letters, I had no case for unfair dismissal.
16.After receiving this advice, I started to withdraw from my social connections, went into denial of the termination and was unable to leave the house, even to go to the gym which is my general go to when feeling low or stressed.
17.I continue to struggle with leaving my house on a daily basis and regularly revert back to the ‘Flight Zone’ forcing back into denial of my termination and this process I am being forced to go through due to it.”
The Applicant explained in his oral evidence that he visited the Work Justice website ( on about 8 August 2024. The Applicant accepted in his oral evidence that he understood from looking at the Work Justice website that he was not obtaining information from the Commission. The Applicant submitted an unfair dismissal enquiry through the Work Justice website and then received the following email at 12:49pm on 8 August 2024:[6]
“Dear Adrien,
Thank you for submitting your unfair dismissal enquiry through the Work Justice website, we have opened an enquiry file and will help you as best we can. One of our consultants will phone you soon.
To help speed up the process, could you please send a simple timeline of what happened. Just a few paragraphs is fine, and if possible, a copy of any termination paperwork you may have.
Please note, unfair dismissal claims must be lodged within 21 days of your termination date, so time is very important.
Any questions please do not hesitate to call.
Kind regards
Connor Price, Industrial Relations Consultant
AUSTRALIAN DISMISSAL SERVICES in association with LAW ON LYDIARD”
The Applicant provided Mr Price with a copy of a disciplinary letter he had received from the Respondent on 19 January 2024. That letter was signed by the Applicant and contained the following paragraph immediately above the Applicant’s signature:[7]
“Acknowledgement of Receipt A copy of this letter will be placed in your permanent personnel file in Human Resources Services for future internal and external reference. Please sign in the space provided below to acknowledge that you received a copy.”
The Applicant also told Mr Price that he had signed other disciplinary letters. The Applicant gave oral evidence that Mr Price told him he did not have much of a case because he had signed the warning letters.
The Applicant accepts that he did not engage Mr Price, Australian Dismissal Services or Work Justice to represent him.
The Applicant’s evidence in relation to what he was told about his prospects of success in an unfair dismissal case against the Respondent is problematic on a number of levels. First, the Applicant did not speak to, or obtain any advice from, any person on the Fair Work Helpline. The Applicant only conceded this point once he was asked to check his recent calls on his mobile phone to determine the time at which he made the call on 13 August 2024. I do not accept the Applicant’s evidence that he was confused and believed at the time that he prepared his unfair dismissal application that he had been “provided advice via the Fair Work Helpline”. The Applicant accepted that when he looked at the Work Justice website he was not obtaining information from the Commission. Nor is there anything in the email from Mr Price sent to the Applicant on 8 August 2024 to suggest that he was making an enquiry with, or obtaining advice from, the Commission. The Applicant’s assertion in his unfair dismissal application and the email of 13 September 2024 that he contacted the Fair Work Helpline for advice is not plausible. This causes me to have significant concerns about the Applicant’s credibility.
Secondly, it is difficult to accept that any person would advise the Applicant that his signature on the 19 January 2024 disciplinary letter meant that he was “unable to make a claim” (as contended in the unfair dismissal application), “had no case for unfair dismissal” (as contended in the Applicant’s witness statement), or “did not have much of a case” (as contended in the Applicant’s oral evidence). The 19 January 2024 disciplinary letter made clear that the Applicant was signing the letter to acknowledge he had received a copy of it. It follows that signing the letter could not be taken as an admission by the Applicant that he had engaged in the conduct alleged in the letter. The Applicant told Mr Price that he had also signed other warning letters but the Applicant did not provide Mr Price with a copy of the letters or tell him about the content of the letters. It is very doubtful that this additional information about the Applicant’s signature on other (unseen) warning letters would, of itself, lead any person to advise the Applicant that he had poor prospects of success in an unfair dismissal case against the Respondent. On the balance of probabilities, I do not accept that the Applicant was told that his signature on any warning letters meant that he had no, or little, prospect of succeeding in an unfair dismissal case against the Respondent.
Thirdly, even if the Applicant was told by Mr Price that his prospects of succeeding in an unfair dismissal case were poor, the Applicant had not engaged Mr Price, or any entity of which he was a part, to represent him. Accordingly, it could not be suggested that the Applicant’s delay was caused by representative error. The Applicant was aware from Mr Price’s email of 8 August 2024 that he only had 21 days to commence unfair dismissal proceedings. I consider that he had ample opportunity to prepare and lodge an unfair dismissal application in the Commission within 21 days of his dismissal.
I am not satisfied on the evidence before the Commission that the Applicant’s mental health meant that he was unable to, or significantly impaired from, preparing and lodging an unfair dismissal application in the Commission within 21 days of his dismissal. I accept that the Applicant suffered panic attacks in late April 2024. He saw his doctor on 2 May 2024 for a consultation and he was diagnosed with anxiety and prescribed medication “to help him sleep as he was having stress at work”.[8] However, the Applicant did not seek any medical assistance from his doctor in relation to his mental health at any time after 2 May 2024. I accept that the Applicant was stressed and distressed as a result of his dismissal, but he was able to submit an unfair dismissal enquiry through the Work Justice website on about 8 August 2024 and thereafter provide documents to Mr Price and speak with him about potentially making an unfair dismissal application. The Applicant also made a number of calls on about 8 August 2024 to obtain information about the impact of his dismissal on his apprenticeship. Further, the Applicant had the insight and ability to seek “independent advice”[9] from Ms McLaughlin on 26 August 2024, which was within the 21 day period after his dismissal. The Applicant could also have sought the assistance of his union following his dismissal. He was represented by his union at the termination meeting on 6 August 2024 and was told by his union representative after the meeting that he could look into the matter for the Applicant. This offer was not taken up by the Applicant.
Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the delay in filing his unfair dismissal application.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 28 August 2024 weighs against the Applicant’s contention that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his dismissal on the day it took effect and therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
The Applicant sought some information from Mr Price in the period just after his dismissal, but he did not take any action to dispute his dismissal. This is a neutral consideration.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
The Applicant submits that, based Respondent’s management of previous disciplinary matters, the dismissal process they undertook, along with the inadmissible factors relied upon to make the decision to dismiss, the Applicant has a strong case that his dismissal was unfair. In support of these contentions the Applicant relies on the following submissions:
The termination process was grossly procedurally unfair and biased.
The Applicant was never advised that his employment was at risk nor given the opportunity to submit any mitigating factors on why his employment should not be terminated prior to the Respondent making its final decision.
There was no valid reason for the dismissal, and the Respondent used prohibited factors that were not in relation to his capacity or conduct to make their decision.
A predetermined outcome was formed by the Respondent’s decision maker prior to the termination meeting on 6 August 2024, blatantly disregarding the Applicant’s legislative rights and the Respondent’s obligations as an employer.
Previous disciplinary outcomes reference by the Respondent in its termination letter were unfounded. The Respondent’s investigator failed to apply procedural fairness obligations in these matters, and she was also the decision maker for each outcome, introducing the risk of bias. Additionally, the Respondent blatantly removed the Applicant’s right to dispute the outcome by forcing him to sign disciplinary letters in the same meeting as they were issued.
The Respondent contends that the Applicant’s unfair dismissal application has no merit. It contends that the Applicant had a history of poor performance, was given multiple warnings and afforded procedural fairness, including allowing the Applicant’s stepmother and union representative to attend meetings with him as his support persons, before the decision was made to terminate his employment.
The history of warnings given by the Respondent to the Applicant supports its contention that it had a valid reason for the dismissal and it afforded the Applicant a fair disciplinary process. However, there is a contest as to whether the Applicant engaged in the conduct addressed in those warning letters. Further, the termination letter seeks to attribute some blame on the Applicant for the conduct of the Applicant’s union representative in the meeting on 6 August 2024. There is some force to the Applicant’s contention that it would be unfair for the Respondent to make its decision to dismiss the Applicant as a result, in part, on the conduct of the Applicant’s representative at a meeting. This is just one of the many matters that would need to be examined carefully in a final hearing after the giving of evidence by relevant witnesses. I do not consider that it is possible at this early stage of the proceedings to come to an informed view as to the merits of the Applicant’s unfair dismissal case.
Having regard to all the circumstances, I consider the merits of the Applicant’s unfair dismissal application to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.
Conclusion
The cases referred to by the Applicant in his written submissions and by Ms McLaughlin at the hearing are distinguishable from the facts and circumstances pertaining to the Applicant. Those cases relate, amongst other things, to circumstances where the Commission was not satisfied that an applicant was in a fit condition to deal with a potential unfair dismissal application until a point in time and another case which was “highly meritorious”.
Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. The Applicant does not have an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application in the Commission on 28 August 2024. The other relevant factors are neutral. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms McLaughlin appeared for the Applicant.
Mr K. Kutasi, solicitor, appeared for the Respondent.
Hearing details:
2024.
Newcastle (by telephone):
10 October.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Ex A4
[7] Ex A5
[8] Ex A2
[9] Applicant’s unfair dismissal application at [1.4]
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