Andrew Dodd v Sydney Harbour Federation Trust

[2024] FWC 2986

[2024] FWC 2986

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Dodd
v

Sydney Harbour Federation Trust

(U2024/10668)

COMMISSIONER MCKINNON SYDNEY, 28 OCTOBER 2024

Application for an unfair dismissal remedy – application filed out of time – whether an extension of time should be allowed

1. Mr Andrew Dodd was employed as an Administration Officer by the Sydney Harbour Federation Trust (Harbour Trust) from 7 August 2018 until 14 August 2024 when he was dismissed with immediate effect. On 9 September 2024, Mr Dodd applied for an unfair dismissal remedy.

1. The application for an unfair dismissal remedy was made 5 days after the end of the 21 day period allowed for unfair dismissal applications to be made. The question is whether additional time should be allowed for Mr Dodd to make his application to the Commission.

1. I have decided not to extend the time for Mr Dodd to make the application. These are my reasons.

Extension of time

1. Section 394(2) of the Fair Work Act 2009 (the Act) requires an application for an unfair dismissal remedy to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3).

1. Under s.394(3) of the Act, the Commission may allow additional time for an unfair dismissal remedy application to be made if satisfied that there are exceptional circumstances. The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

1. A list of matters to be taken into account when deciding whether to grant additional time is prescribed by s.394(3). These are:

·   the reason for the delay,

·   whether the person first became aware of the dismissal after it had taken effect,

·   any action taken by the person to dispute the dismissal,

·   prejudice to the employer (including prejudice caused by the delay),

·   the merits of the application, and

·   fairness as between the person and other persons in a similar position.

Relevant factors

1. Reason for delay: The reason given by Mr Dodd for the late filing of his application is that he did not know there was a 21 day timeframe. Mr Dodd queries whether the 21 day period is 21 business or calendar days. He does not believe that an unfair dismissal case should have a time limit on it. He also says that he had shut down the email address nominated on his application form due to inactivity and then had to reopen it. A separate comment that Mr Dodd “responded” once he had all relevant paperwork for the claim available appears to refer to his response to directions issued by the Commission, rather than a reason for delay. No exceptional circumstances are apparent in relation to the reason for delay in filing the application.

1. Whether the person first became aware of the dismissal after it had taken effect: Harbour Trust submits that Mr Dodd was given a letter of termination on the date his termination took effect. This is consistent with the contents of Mr Dodd’s application form and is not an exceptional circumstance.

1. Any action taken by the person to dispute the dismissal: On the materials, the only action taken by Mr Dodd to dispute his dismissal was the filing of his application on 9 September 2024. This is not an exceptional circumstance.

1. Prejudice to the employer (including prejudice caused by the delay): Given the relatively short period of delay, I find no prejudice to Harbour Trust if additional time were allowed for Mr Dodd to make his application for an unfair dismissal remedy. However, this is also not an exceptional circumstance.

1. Merits of the application: A review of the papers indicates that after a period of service of approximately 6 years, Mr Dodd was dismissed for repeated conduct in breach of Harbour Trust’s Code of Conduct. Mr Dodd had undergone a performance improvement process for allegedly similar conduct to the allegations that preceded his dismissal. The allegations were investigated and substantiated, although Mr Dodd’s application asserts that the first allegation did not involve a dismissible offence and denies the second allegation. Further alleged instances of similar conduct then occurred. An opportunity to show cause was offered to Mr Dodd who chose not to engage in the process. In the circumstances, and noting the very limited information provided by Mr Dodd in support of the application, the merits of the case do not appear to be strong.

1. Fairness as between the person and other persons in a similar position is not a relevant matter in the circumstances of this case.

Conclusion

1. For the reasons above, I find no exceptional circumstances that might justify additional time for Mr Dodd to make his application for an unfair dismissal remedy. Mr Dodd knew about his dismissal straight away. He did not know about the 21 day filing period, but there is no evidence that he made any relevant enquiries in that regard aside from finding and completing the online form and submitting it to the Commission. Whether he believes in the 21 day time limit is beside the point. It is a feature of the legislative framework governing unfair dismissal. Separate to the filing of the application, no action was taken by Mr Dodd to dispute the dismissal. Although there is no prejudice to Harbour Trust if the application proceeds, the merits of the application are not strong.

1. In the absence of exceptional circumstances, additional time cannot be allowed for the application to be made.

1. The application is dismissed.

COMMISSIONER

Appearances:

No appearance on behalf of the Applicant.

A Dearden of Hall & Wilcox on behalf of the Respondent.

Hearing details:

2024.
Sydney (by video):
October 24.

[1] [2011] 203 IR 1 at [13].

Printed by authority of the Commonwealth Government Printer

<PR780666>