Alexander Short v Immutable Pty Ltd - [2022] FWC 2829

[2022] FWC 2829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alexander Short
v

Immutable Pty Ltd

(U2022/8463)

DEPUTY PRESIDENT DEAN

CANBERRA, 1 NOVEMBER 2022

Application for an unfair dismissal remedy – extension of time.

This decision concerns an application by Mr Alexander Short (Mr Short or the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. Mr Short was employed with Immutable Pty Ltd (Immutable or the Respondent) in the role of Senior Unity Developer until his employment was terminated with effect from 27 July 2022.

Section 394(2) of the Act provides 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).

Mr Short’s application was lodged on 18 August 2022 at 12:01 am, one minute outside the statutory time limit. Mr Short seeks an extension to the period of time in which his application can be made.

The matter was listed for hearing by telephone on 23 October 2022. At the hearing Ms Ablett of Association of Professional Engineers, Scientists and Managers Australia T/A Professionals Australia (Union) appeared for Mr Short, and Mr Bunting appeared for Immutable.

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 onus rests with the Applicant to demonstrate that there are exceptional circumstances.

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 now consider these matters in the context of this application.

Reason for the delay

The Act does not specify what reason for the 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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 2829
Decision Date: 1 NOVEMBER 2022

CaseChat Overview and Summary

The applicant in this matter, Mr Alexander Short, brought an application to the Fair Work Commission (FWC) seeking an unfair dismissal remedy, pursuant to section 394 of the Fair Work Act 2009, against his former employer, Immutable Pty Ltd. The application was lodged one minute outside the statutory time limit of 21 days from the effective date of dismissal. The applicant sought an extension of time to lodge his application. The FWC Deputy President Dean found that there were exceptional circumstances warranting an extension of time.

The main legal issue before the FWC was whether there were exceptional circumstances that would justify an extension of time for the applicant to lodge his unfair dismissal application. The FWC considered several factors in making this determination, including the reason for the delay, whether the applicant was aware of the dismissal in time, any action taken by the applicant to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other persons in a similar position. The applicant's representative error was found to be an acceptable explanation for the delay, and the applicant's reliance on his representative's advice to leave the lodging of the application until the last day was deemed a high-risk strategy. The FWC found that there were exceptional circumstances warranting an extension of time for the applicant to lodge his unfair dismissal application.

In conclusion, the FWC granted the applicant an extension of time to lodge his unfair dismissal application. The FWC Deputy President Dean found that there were exceptional circumstances that justified the extension of time, taking into account the reason for the delay, the action taken by the applicant to dispute the dismissal, and fairness to other persons in a similar position. The FWC did not find prejudice to the employer or the merits of the application to be relevant considerations in this matter. The FWC ordered that an extension of time be granted to the applicant to lodge his unfair dismissal application.

Orders