Alex Ohlsen Stephens v Wired Overhead Solutions Pty Ltd

Case •

[2022] FWC 1451

•

9 JUNE 2022
[2022] FWC 1451

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alex Ohlsen Stephens
v

Wired Overhead Solutions Pty Ltd

(U2022/4226)

DEPUTY PRESIDENT MOLTONI

BRISBANE, 9 JUNE 2022

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

  1. Alex Stephens (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 Wired Overhead Solutions (Respondent).

  1. The information provided in the application and in the employer response form lodged by 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.

The Determinative Conference

  1. There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a determinative conference or hold a hearing.

  1. After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the FW Act).

Witnesses

  1. The Applicant gave evidence on his own behalf.

  1. Mr Jason Priest gave evidence on behalf of the Respondent.

Submissions

  1. The Applicant filed submissions in the Commission on the 18th of May 2022, the 19th of May and the 22nd of May 2022. The Respondent filed submissions in the Commission on the 24th of May 2022.

When did the dismissal take effect?

  1. It is not in dispute, and I so find, that the dismissal took effect on 8 March 2022.

When was the application made?

  1. It is not in dispute, and I so find, that the application was made on 1 April 2022.

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.”[1]

  1. As I found above, the dismissal took effect on 8 March 2022. The final day of the 21 day period was therefore 29 March 2022 and ended at midnight on that day. As I found above, the application was made on 1 April 2022.

  1. The application having not been 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?

  1. 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.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

  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 29 March 2022. The delay is the period commencing immediately after that time until 1 April 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

  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.[4]

  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.[5]

Submissions

  1. The Applicant submitted that the delay was for the following reasons:

·  He was stuck in the floods during the time he sent his application;[6]

·  He didn’t know what to do;[7]

·  He could not understand where to send his application to or what to send;[8]

·  He tried to call Fair Work multiple times seeking guidance and ‘didn’t receive much information’.[9]

  1. In relation to the reason for the delay, at the conference the Respondent submitted that the flooding occurred prior to the termination and there was no exceptional reason not to submit the application in time.

Evidence

  1. The Applicant’s verbal evidence at the conference was that he was unsure of what to do and had rung the Fair Work Ombudsman and they had advised him to obtain legal advice however he had not done so. Further at the determinative conference, the Applicant acknowledged that the flooding occurred before his termination of employment and played no part in the reasons for the late filing of his application.

  1. The Respondent’s verbal evidence at the conference was that the flooding did not occur after the termination.

Findings

  1. Having regard to the above, I find that the reasons for the delay were that the Applicant was unaware of how to make an application for unfair dismissal.

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

  1. It was not in dispute, and I so find, 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.

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

  1. It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 1 April 2022.

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

  1. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

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. 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 s.366(2)(d)”[10] and the same applies to s.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. The Applicant has an apparent case, to which the Respondent has an apparent defence.

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

Findings

  1. Having regard to the matters referred to above, I find that the merits of the application will necessarily turn on the evidence and that, in the absence of a hearing of that evidence, it is not possible to make an assessment of the merits of the application.

  1. I therefore find this to be a neutral consideration.

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 and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Findings

  1. In all the circumstances, I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises.

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, being that the Applicant was unaware of how to make an application for unfair dismissal;

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

(c)   the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;

(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)    no 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.[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]

  1. I note the Applicant’s submission that he was simply unaware of the time frames and process involved to make his application, and that mere ignorance of the statutory time limit is not an exceptional circumstance.[13]

  1. I further note that a lack of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist.[14]

  1. Having regard to all of the matters at s.394(3) of the FW Act, 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.

  1. I order that the application be dismissed.

DEPUTY PRESIDENT

Appearances:

A Stephens, Applicant
J Priest, Respondent

Hearing details:

2022.
Brisbane:
June 8.


[1] 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.

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

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

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

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

[6] Email from Applicant to Vice President Catanzariti’s Chambers dated 8 May 2022.

[7] Ibid.

[8] Email from Applicant to my Chambers dated 19 May 2022.

[9] Ibid.

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

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

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

[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].

[14] Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].

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