Andrew Brian Newcombe v ACT Couriers Pty Ltd T/A Khandu Couriers

[2023] FWC 2591

[2023] FWC 2591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Brian Newcombe
v

ACT Couriers Pty Ltd T/A Khandu Couriers

(U2023/7550)

DEPUTY PRESIDENT DEAN CANBERRA, 11 OCTOBER 2023

Application for an unfair dismissal remedy – extension of time granted

1. Mr Andrew Newcombe (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal from ACT Couriers Pty Ltd T/A Khandu Couriers (the Respondent).

1. The Applicant says his dismissal took effect from 20 July 2023 and this application was lodged on 14 August 2023.

1. 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 Applicant filed his application 4 days outside the 21-day period and so his application can only proceed if the Commission grants a further period for it to be made.

1. The matter was initially listed for hearing by telephone on 26 September 2023, however it became apparent that the name and the email address provided for the Respondent was not correct and as a result I was not satisfied the Respondent, who did not appear, had been served with the application. The hearing was adjourned to 9 October to ensure the Respondent was properly served with the application and had an opportunity to appear. At the hearing on 9 October, the Applicant appeared and gave evidence on his own behalf. The Respondent was represented by its owner, Mr J Prior.

2. For the reasons set out below, I find there are exceptional circumstances and will extend time for the application to proceed.

Extension of time

1. 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]

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

1. 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.

1. 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.

Consideration

Reason for the delay

1. 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, 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.[3]

1. The Applicant explained that he tried to navigate the process of submitting the application online but could not do so. He then attended the Commission’s office in Canberra on two occasions (4 and 9 August) to fill out the necessary paperwork. He said he had the forms filled out by hand but his handwriting was poor and was encouraged by the Registry staff to lodge his application electronically. He said he had no computer or device to lodge the application electronically and was very unfamiliar with computers. After trying numerous times over several days to submit the application using his phone without success, he enlisted the help of his sister to file the document electronically and she did so as soon as she could, on 14 August 2023.

1. The Applicant also said that while he was dismissed on 20 July 2023, he did not receive his separation certificate until 23 July 2023, which caused confusion and uncertainty about the date by which the application needed to be filed.

1. Having considered the matters raised by the Applicant, I am satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application. He made multiple attempts to lodge the application electronically, and when that proved unachievable, he attended the Commission offices in person on two occasions within the 21-day time limit. I am satisfied that this provides an acceptable reason for the delay.

1. This weighs in favour of the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

1. The Applicant confirmed he was aware of his dismissal when it took effect. He was afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

Action taken to dispute the dismissal

1. The Applicant did not take any action to dispute the dismissal until the present application was lodged, however as noted earlier he took reasonable steps to lodge the application within time. I consider this a neutral consideration.

Prejudice to the employer

1. The delay is relatively short and I cannot identify any 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

1. The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.

1. The Applicant, in his application, said the reason given for his dismissal was that he had been rude to customers and was told he was not suited to the job. The Applicant said he had not been spoken to about any issues by his employer and felt that after 3.5 years of work there would have been a procedure to notify him if they were not happy with his performance.

1. The Respondent submitted that the Applicant was dismissed because of complaints of rudeness by customers, and that it had offered the Applicant the opportunity to do different delivery runs but the Applicant did not want to work nights or weekends.

1. On the limited evidence before me, it is not possible to make a final determination of the merits in this matter. I find the merits to be a neutral consideration.

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

1. 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.

1. Neither party made submissions on this criterion and I therefore consider this to be a neutral consideration in the present matter.

Conclusion

1. As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and the test of ‘exceptional circumstances’ establishes a high hurdle.

1. Having regard to the matters I am required to take into account, I am satisfied that there are exceptional circumstances warranting my granting an extension of time. It is out of the ordinary course for a person to have attended the Commission office to lodge an application on two occasions, within the 21-day time frame, but instead be encouraged to lodge online, particularly where the person had disclosed they were not computer literate. As a result, I will extend time for the Applicant’s application to proceed.

2. An order reflecting this decision is separately issued.

DEPUTY PRESIDENT

Appearances:

A Newcombe on his own behalf.
J Prior for ACT Couriers Pty Ltd T/A Khandu Couriers.

Hearing details:
2023.
By telephone:
October 9.

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

[2] Ibid.

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

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