Anil Razdan v Fujitsu Australia Limited
[2022] FWC 1199
•26 MAY 2022
| [2022] FWC 1199 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Anil Razdan
v
Fujitsu Australia Limited
(U2021/11640)
| COMMISSIONER CAMBRIDGE | SYDNEY, 26 MAY 2022 |
Unfair dismissal - jurisdictional objection - application made out of time - exceptional circumstances not established - extension of time refused.
This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Anil Razdan (the applicant) and the respondent employer is Fujitsu Australia Limited (the employer).
The application was lodged with the Fair Work Commission (the Commission) at Sydney on 14 December 2021. The application, at paragraph 1.3, stated “Date of dismissal was 18 Nov 2017” and included the following at paragraph 1.5 “I go [sic] information late and by post and was not at work. So I was notified by mail.” On 17 December 2021, the applicant filed an amended application which inter alia, included the following words at paragraph 1.3, “Date of dismissal 18 nov [sic] 2021”. Consequently, based upon the date of dismissal provided in the amended application (18 November 2021), the application was made some 5 days after the 21 day time limit prescribed by subsection 394 (2) of the Act.
On 21 January 2022, the employer filed a response to the application (Form F3) which identified inter alia, a jurisdictional objection to the application on the basis that the application, filed on 14 December 2021, was made beyond the time limit prescribed by subsection 394 (2) of the Act (the out of time objection).
During a Pre-Hearing Conference/Conciliation proceeding conducted on 27 January 2022, attempts to reach a conciliated settlement of the matter were unsuccessful. The Commission issued Directions which required the Parties to file and serve evidence and submissions in respect to the out of time objection, and to also provide clarification whether they were content for the out of time objection to be determined upon the documentary material which had been filed, or alternatively if either Party requested a Hearing.
Subsequently, the Parties have provided evidence and their respective submissions regarding the out of time objection, and on 22 March 2022, the applicant filed and served an email that confirmed that he wanted any determination of the out of time objection to involve a Hearing. Consequently, the out of time objection was the subject of a Hearing conducted in Sydney on 7 April 2022.
Relevant Factual Background
The applicant had worked for the employer for about 6 years, including an initial period as a casual employee, before he was appointed to a permanent full-time position of Stock Administrator on 3 January 2017. The employer conducts a business that provides services for business, which involve information, technology, and communications solutions. These services include the provision of information/technology/communications equipment and as part of its business, it operates a warehouse in the Sydney suburb of Lidcombe. The applicant was engaged to work at the employer’s Lidcombe warehouse.
On 27 August 2021, the applicant sent an email to the employer’s supply chain manager, Mr Griffiths, requesting that he be granted leave without pay “till December.” The applicant’s request for unpaid leave was associated with difficulties that he was experiencing in attending work for the employer at times that had been altered by the employer to accommodate COVID-19 related issues in the workplace. The applicant had, with the employer’s knowledge, engaged in secondary employment for some time, and the changes to work times with the employer conflicted with the work times of his secondary employment, such that the applicant was frequently absent from or late for work with the employer.
On 9 September 2021, the applicant attended a meeting together with his immediate manager, Mr Dimitropoulos, in person, and via video conference with Mr Griffiths, and the employer’s HR business partner, Ms Ferrier. The meeting involved discussion about the applicant’s repeated lateness for work, his high rate of absenteeism, the impact of his second job, his utilisation of all annual and personal leave entitlements, and his request for 3 months leave without pay.
On 16 September 2021, Mr Griffiths sent an email to the applicant which advised him of the outcome of the meeting held on 9 September 2021. The email included a letter dated 9 September 2021, which confirmed inter alia, that the applicant’s request for leave without pay had been refused, and that the employer expected that the applicant would immediately fully comply with all reasonable requirements regarding attendance for all contracted hours.
Between 10 and 17 September 2021, the applicant attended for work with the employer, but he arrived late to work by up to 3.75 hours on each of the shifts worked between 13 September and 17 September 2021. The applicant was absent from work on 15 September 2021 for the purposes of obtaining a COVID-19 vaccination. From 20 September 2021, the applicant ceased to attend for work with the employer as he “told the management around 20th September that I am on leave.”[1]
On 2 November 2021, the applicant’s immediate manager, Mr Dimitropoulos, sent the applicant a text message which advised the applicant to open an email that had been sent to him regarding his employment. Mr Dimitropoulos requested that the applicant confirm receipt of the email regarding his employment, and on 8 November 2021, the applicant sent a text message to Mr Dimitropoulos which stated, “I have received this letter and am going through it and will get back.”[2]
The letter of 2 November 2021 included reference to the earlier meeting held on 9 September 2021 and the refusal to agree to provide the applicant with his requested 3 months of leave without pay. Further, the letter noted that the applicant had failed to attend for work since 20 September 2021, and that attempts to contact the applicant to discuss his absence had been unsuccessful. Importantly, the 2 November letter stated that the employer required the applicant to attend for work on his next rostered shift which was incorrectly stated to be 8 September rather than 8 November.
On 4 November 2021, the employer sent an email to the applicant which advised of the incorrect date of 8 September that had been included in the 2 November letter and confirmed that the correct date for the anticipated attendance at work of the applicant was 8 November. The applicant claimed that he did not receive the further communication clarifying the correction from 8 September to 8 November and in any event, he did not return to work with the employer at any time after 20 September 2021.
At 6:39 am on 19 November 2021, Mr Dimitropoulos sent the applicant a text message which relevantly advised that another letter had been emailed and mailed to the applicant and requested that the applicant acknowledged receipt of the document. At 12:01 pm on 22 November 2021, the applicant sent an email response to Mr Dimitropoulos which relevantly stated, “Received the mailed letter Con. Thanks Anil”[3].
The applicant’s text of 22 November 2021 acknowledged receipt of a letter that provided him with advice of the termination of his employment. A copy of this letter had been sent to the applicant’s usual email address on 18 November 2021 at 2:51 pm, and the physical version of the letter was sent on 18 November 2021 by registered post, and the employer subsequently provided Australia Post proof of delivery to the applicant’s home address at 9:29 am on 19 November 2021.
At 9:02 am on 23 November 2021, the applicant received an email letter via his usual email address from the employer which included calculations of his final termination payments. This email communication included advice that the employer had undertaken a reconciliation of asserted overpayments made to the applicant and entitlements arising at termination, including a payment in lieu of 5 weeks’ notice. This reconciliation resulted in an outstanding amount of $94.04 owing by the applicant, which the employer requested payment for from the applicant. The applicant did not respond to the employer in respect to this email communication regarding the reconciliation made for his termination entitlements.
On 9 December 2021, the applicant completed an online inquiry with the Fair Work Ombudsman (FWO) which requested advice as to whether his dismissal was fair or unfair, and he raised concern about the reconciliation of his employment termination entitlements. The response provided by the FWO on 9 December 2021, included advice that the FWO did not make determinations about whether an employee’s termination was fair or unfair, and the applicant was directed to the Fair Work Commission with mention that any unfair dismissal application had to be made within 21 days after dismissal.
On 14 December 2021, the applicant filed his claim for unfair dismissal remedy which was made 5 days after the 21 day period following the dismissal that operated from 18 November 2021. However, advice of the dismissal was provided by the employer to the applicant’s usual email address on 18 November 2021 and confirmed by registered postal delivery to the applicant’s home address on the following morning, 19 November 2021. The applicant subsequently provided a text acknowledgement of receipt of the dismissal letter on 22 November 2021.
Therefore, the application for relief from unfair dismissal was filed 5 days late if the date of dismissal is taken to be the date on which advice was provided by email, or it is 4 days late if the date of dismissal is taken to be the date on which confirmation of the letter of dismissal by postal delivery was made to the applicant’s address, or is one day late if the date of dismissal is taken to be the date on which the applicant provided a text message acknowledgement of receipt of the dismissal letter.
The Applicant’s Case in Support of an Extension of Time
The applicant provided two documents in addition to his evidentiary material and these documents became Exhibits 1 and 2. These documents were provided as both further evidentiary material to support a finding that there were exceptional circumstances upon which the Commission should grant an extension of time, and submissions in support of that outcome. The further material documents were firstly, an email of 7 January 2022, to the Chambers of Catanzariti VP headed “Reasons for delay” and secondly, an outline of submissions document filed and served on 18 March 2022. This material represented the applicant’s case in support of an extension of time and his opposition to the out of time objection raised by the employer.
The submissions made by the applicant included the assertion that although he had received the letter of 2 November 2021, he did not receive any further communication regarding the correction to that letter which confirmed that the employer anticipated his return to work on 8 November and not 8 September. Consequently, the applicant submitted that he believed that he had been granted leave without pay until 8 September 2022.
The submissions made by the applicant also asserted that he did not receive the email advice of the termination of employment sent on 18 November 2021, and that his text message receipt acknowledgement on 22 November 2021 was provided only in respect of the postal delivery to his residential address. The applicant contended that the Australia Post proof of delivery did not carry his signature and he was not residing at his residential address at that time.
The applicant submitted that he received notification of the termination of his employment “quite late around 1st December.” Further, the applicant accused the employer of misleading and deceptive conduct “to state starting date is 8th Sep 2022 and terminate employment on 18 November.”
In further submissions, the applicant referred to his online contact and communication with the FWO. The applicant asserted that he applied “for unfair dismissal at fair work ombudsman.” Further, the applicant said that he thought his unfair dismissal application was under progress and he did not follow the application on a daily basis.
In summary, the applicant provided material which asserted that the reasons for the delay with the filing of his unfair dismissal claim involved, firstly, his absence from his residential address when the letter advising him of the termination of employment was delivered by registered mail, and secondly, the earlier communication which he asserted had granted him leave without pay until 8 September 2022. Further, the submissions made by the applicant asserted that he had initially tried to make an application for unfair dismissal when he made online contact with the FWO on 9 December 2021.
The Employer's Case in Opposition to an Extension of Time
The employer provided evidence by way of a witness statement of Mr Dimitropoulos dated 9 March 2022. Mr Dimitropoulos gave evidence which included the difficulties that he had experienced when endeavouring to contact the applicant, particularly after 20 September 2021 when the applicant no longer attended for work with the employer. Mr Dimitropoulos provided important evidence regarding a telephone conversation that he had with the applicant on or around 23 November 2021, at which time the applicant made no suggestion that he believed that he had been granted unpaid leave until 8 September 2022.
The material provided on behalf of the employer asserted that there were no exceptional circumstances to warrant an extension of time. In particular it was asserted that, taking into account the matters set out in subsection 394 (3) of the Act, the Commission should decline to exercise its discretion to grant an extension of time.
Ms McDermott, the employer’s Head of Corporate Legal, made submissions on behalf of the employer. The submissions made by Ms McDermott focused upon the asserted reasons for the delay that had been advanced by the applicant. In this regard, particular criticism was raised of there being no reasonable explanation for why the applicant did not act sooner to challenge his dismissal.
Ms McDermott submitted that it was the applicant’s responsibility to inform his employer if his home address changed for any reason, and the fact that he may not have been at home at the time that the letter of dismissal was delivered was not a matter within the control of the employer. Further, Ms McDermott submitted that there was no explanation for why the applicant, after having received advice from the FWO on 9 December 2021, did not promptly pursue his claim for unfair dismissal. Consequently, Ms McDermott asserted that the reasons that the applicant had provided for the delay were not credible or reasonable or capable of establishing exceptional circumstances.
The submissions made by Ms McDermott also rejected that the applicant did not become aware of his dismissal until substantially after it had taken effect. Further, Ms McDermott submitted that the applicant did not dispute his dismissal at the time that it occurred, or during subsequent communications that he had with the employer. It was further submitted by Ms McDermott that the applicant’s unfair dismissal claim was without merit and his absenteeism and lateness were matters of complaint that he had an opportunity to rectify but did not do so.
In summary, the submissions made by Ms McDermott asserted that the Commission should not exercise its discretion to grant an extension of time because: (a) exceptional circumstances had not been established, (b) there was no explanation for the applicant’s delay in making the application as it was clear that he had been notified of his dismissal on 18 and 19 November 2021, (c) the applicant had not taken action to dispute his dismissal despite his assertion that he believed that he had been granted leave without pay until 8 September 2022, and (d) there was an absence of merit in respect to the substantive application.
Consideration
Subsection 394 (2) (a) of the Act stipulates that an application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) allows for an extension of the 21 day time period if, pursuant to subsection 394 (3), exceptional circumstances are established.
In this case, the application was filed on 14 December 2021, which was some 26 days after the day on which the applicant’s dismissal took effect, 18 November 2021. Therefore, the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made 5 days after the expiry of the 21 day time limit.
Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) of the Act is in the following terms:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a similar position.”
As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit.
Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion.
Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years should be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act.
In this case the delay was 5 days relevant to the 21 day time limit. Consequently, the period of the delay of a further 5 days in the context of a 3 week time limit could not be described as a significant delay in the context of the statutorily prescribed time limit.
Subsection 394 (3) (a) - The Reason for the Delay
In this instance, the reasons for the delay that were advanced by the applicant involved firstly, his absence from his residential address when the letter advising him of the termination of employment was delivered by registered mail, and secondly, the applicant placed reliance upon the earlier communication which he asserted had granted him leave without pay until 8 September 2022, and thirdly, the applicant suggested that after he had initially made online contact with the FWO he assumed that his unfair dismissal claim was in progress.
Ordinarily, the message of dismissal should be communicated personally, that is by way of face-to-face contact with arrangements for the presence of a support person and the provision of documentary confirmation. However, in this instance, where the applicant had been absent from work in contravention of the employer’s directive whereby it had refused his request for an extended period of unpaid leave, there was no reasonable prospect for advice of dismissal to be communicated personally. In circumstances where advice of a dismissal is communicated by means other than direct contact between the employer and the employee, the 21 day period to lodge an unfair dismissal application could not begin to run before an employee who has been dismissed became aware that they had been dismissed, or at least had a reasonable opportunity to become aware of the dismissal.
In this case, the employer communicated the advice of dismissal by taking the following actions: Firstly, at 2:51 pm on Thursday, 18 November 2021, it sent an email to the applicant’s usual email address which attached the letter of dismissal; and, Secondly, on the same day, it sent by registered post to the applicant’s residential address, a hard copy of the letter of dismissal which was delivered at 9:29 am the following day, Friday, 19 November 2021, and Thirdly, at 6:39 am on Friday, 19 November 2021, it sent a text message to the applicant’s mobile phone number which alerted the applicant to the email and mail communications and requested an acknowledgement of receipt of these communications. On Monday, 22 November 2021, the applicant provided a text message acknowledgement of receipt of the mailed letter.
Consequently, in these circumstances, the actions of the employer in respect of the communication of advice to the applicant of his dismissal, were entirely reasonable and could not provide any basis to establish a reason that could justify any delay with challenge to the dismissal, particularly including the filing of an application for unfair dismissal remedy. The actions of the employer provided sound basis to conclude that the applicant was aware of his dismissal on either 18 or 19 November 2021 and that the effective date of dismissal was 18 November 2021.
In respect to further reason for the delay in filing the unfair dismissal claim, it was regrettable that the applicant attempted to rely upon the mistake that was initially made in the letter of 2 November 2021, which indicated that the employer required the applicant to present for work on his next rostered engagement of 8 September. This mistake was subsequently corrected, and the date was clarified to be 8 November. Curiously, the applicant stated that he did not receive the email communication which provided the date correction, and he advanced a plainly ludicrous proposition that he believed that the employer had granted him unpaid leave until 8 September 2022.
The applicant’s attempted reliance upon the initial date error for attendance at work was founded upon his asserted belief that the employer had granted him 8 months unpaid leave despite the letter of 2 November 2021 clearly refusing his request for 3 months of unpaid leave. The evidence provided by the applicant of his asserted belief that he had been granted 8 months unpaid leave was unbelievable and deliberately false.
The evidence established that the first occasion that the applicant made any suggestion that he had been granted unpaid leave until 8 September 2022, was on 7 January 2022, in his email communication with the chambers of Catanzariti VP. At no time did the applicant raise with the employer that his dismissal conflicted with his belief that he had been granted unpaid leave until 8 September 2022. Further, the applicant’s online enquiries with the FWO made no mention that the dismissal that he was challenging occurred during a period when he had been granted unpaid leave. Regrettably, the applicant provided untruthful evidence about his purported belief that he had been granted 8 months unpaid leave.
In addition, there was no evidence to provide explanation for the applicant’s further delay in filing an unfair dismissal claim after 9 December 2021 when information provided by the FWO highlighted the 21 day time limit for filing an unfair dismissal claim. At this point in time, circa 9 December 2021, the applicant could have filed an unfair dismissal claim within the 21 day time limitation and there was no explanation provided for the delay of a further 5 days. In these circumstances, to delay filing any claim without explanation, must represent a failure to act with sufficient timeliness.
Consequently, when the reasons for the delay are carefully and objectively considered, they do not provide a sound and acceptable reason upon which to establish that the applicant acted with an appropriate level of diligence and genuine regard for undertaking challenge to his dismissal.
Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect
The applicant first became aware of his dismissal on 18 November 2021, when he was sent an email with the attached letter of dismissal. The applicant asserted that he did not receive this email, nor another email which corrected an earlier date error in the letter of 2 November 2021. However, all previous and subsequent emails sent to the applicant’s ordinary email address were received without any difficulty. Given the applicant’s regrettably false evidence regarding his purported belief to have been granted 8 months unpaid leave, the Commission is unable to accept that the applicant was truthful in respect of his evidence that he did not receive the email of 18 November 2021, which attached the letter of dismissal. Therefore, the applicant first became aware of his dismissal on the date that it took effect, 18 November 2021, and this factor does not provide any assistance to the applicant.
Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal
The applicant did not take action to dispute his dismissal prior to the online enquiries that he made with the FWO on 9 December 2021, which was the 21st day after his dismissal took effect. There was subsequently no satisfactory explanation for any subsequent delay in disputing the dismissal in the period after the FWO had alerted the applicant to the 21 day time limit for filing an unfair dismissal claim. Therefore, this factor does not provide any assistance to the applicant.
Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay)
There was a paucity of evidence as to the details of any prejudice. No identifiable evidence was provided to support any particular submissions that could be made on this point. The time frame of the delay would logically provide some potential for prejudice to arise. On balance, this factor has been treated as being neutral.
Subsection 394 (3) (e) - The Merits of the Application
This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if an extension of time was granted.
It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly, in this instance it was relevant to note that the applicant was seeking monetary compensation for his alleged unfair dismissal, yet his purported belief that he had been granted a period of unpaid leave would mean that there was no lost remuneration arising from the alleged unfair dismissal.
There was evidence that the applicant had essentially prioritised his secondary employment over that which he had with the employer. The undeniable evidence of the applicant’s level of absenteeism provided understandable concern for the employer and would seem to represent valid reason for dismissal. The applicant’s evidence that included the statement, “Since my leave was rejected I told the management around 20th September that I am on leave.”, strongly suggested that the applicant had decided that he would take leave of his choosing irrespective of the directive of the employer.
On any objective and balanced assessment, albeit of only an elementary nature, the applicant’s unfair dismissal claim presents as a matter with very limited prospects for success. Therefore consideration of this factor would provide little support for the granting of an extension of time.
Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position
In the absence of any evidence about the treatment of other employees of the employer this factor has been treated as being neutral.
Exceptional Circumstances
Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case of Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[4]. The consideration therein establishes a caution against adopting an overly stringent interpretation of what constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.
Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in CheyneLeanne Nulty v Blue Star Group Pty Ltd[5]and the following paragraph from that Decision is particularly helpful:
“[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.”
Conclusion
In this instance the exercise of the discretion to extend time has been required in respect to a delay of 5 days. In this context, the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.
The reasons for the delay have included the issue of the communication of advice of dismissal to the applicant by way of email and subsequent registered postal delivery to the applicant’s residential address. Additionally, the applicant placed reliance upon the assertion that he had been granted leave without pay until 8 September 2022, and further, the applicant suggested that after he had initially made online contact with the FWO he assumed that his unfair dismissal claim was in progress. Following careful analysis of these issues there has not been a satisfactory reason provided for either the initial delay between dismissal and contact with the FWO, or the subsequent delay in the period following the communication from the FWO and the filing of the unfair dismissal claim.
Regrettably, in this instance the evidence provided by the applicant in connection with the reasons for the delay in filing his unfair dismissal claim has resulted in the Commission making adverse credit findings against the applicant. The applicant’s attempted reliance upon the ludicrous proposition that he had been granted 8 months unpaid leave despite his request for 3 months unpaid leave having been refused, involved evidence that reflected very poorly upon the applicant’s character, such that he could not be considered to be a truthful witness.
The other factors under consideration either did not assist the applicant's claim for the Commission to exercise the discretion to extend time or were of neutral impact. On any reasonable and objective assessment, the application had very limited potential merits.
Consequently, in this instance the Commission has been required to carefully evaluate and balance all of the relevant factors. In particular, in this instance there was not an acceptable reason for the delay in filing the application, and unfortunately the Commission has been unable to accept that the applicant provided truthful evidence.
On balance and having particular regard for the absence of any satisfactory reason for the delay in the entire period after dismissal until the late filing of the application, the Commission has determined that exceptional circumstances have not been established in this instance. Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case there was no acceptable reason for the delay. Therefore there could be no sound and proper justification for the Commission to exercise the discretion to extend time.
An Order [PR741695] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision.
COMMISSIONER
Appearances:
Mr A Razdan appeared unrepresented.
Ms A McDermott, Head of Corporate Legal appeared for the employer.
Hearing details:
2022.
Sydney:
April, 7.
[1] Exhibit 1 - paragraph 8.
[2] Exhibit 1 - Appendix A.
[3] Exhibit 1 - Appendix A.
[4] Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394
[5] Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
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