Anthony Zeimer v Colas NSW

[2020] FWC 4688

[2020] FWC 4688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Zeimer
v
Colas NSW
(U2020/10623)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 2 SEPTEMBER 2020

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

Introduction

[1] This decision concerns an application by Mr Anthony Zeimer (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant’s employment with Colas New South Wales Pty Ltd (Respondent) was terminated with effect from 14 July 2020. The unfair dismissal application was lodged on 5 August 2020.

[3] 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 period of 21 days ended at midnight on 4 August 2020. The application was therefore filed 1 day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] 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

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] 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.

[7] 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 the Application.

Reason for the delay

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[9] The Act does not specify what reason for 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. 5

[10] The Applicant gave evidence that his application was filed one day late because he tried on about three or four occasions over a period of about three or four days prior to 5 August 2020 to call the Fair Work Ombudsman, but was unable to speak to anybody. On each occasion the Applicant called the Fair Work Ombudsman the telephone system used by the Fair Work Ombudsman put the Applicant on hold and then hung up on him. The Applicant’s wife then undertook a Google search and discovered that the application could be filed by email, which is what the Applicant did on 5 August 2020. After the Applicant lodged his application in the Commission, he tried to call the Fair Work Ombudsman again and finally spoke to a lady who informed him that he had filed his application the day after it was supposed to be filed.

[11] I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay. In the Applicant’s termination letter, he was informed that he could seek information from the Fair Work Ombudsman by calling 13 13 94 or visiting their website at Although the Applicant could not get through the Fair Work Ombudsman by telephone, he could have visited their website, contacted the Commission, or undertaken a Google search, as his wife did on 5 August 2020, to find out the information required in order to lodge the application by the relevant time. Such steps could have been undertaken at any time from 14 July 2020 until 4 August 2020.

[12] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

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

[13] The Applicant was notified of the dismissal on 14 July 2020 and the dismissal took effect on the same day. The Applicant therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[14] The Applicant does not contend that he took any ‘action to dispute the dismissal’. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[15] 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

[16] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The Applicant contends that his dismissal was unfair because as he was handed his redundancy letter there were other operators straight away operating the machine that the Applicant operated. The Applicant also points to the fact that he was working temporarily at another depot at the time he was dismissed. The Respondent contends that the Applicant’s dismissal was a genuine redundancy within the meaning of the Act.

[17] The outcome of the Applicant’s unfair dismissal application would depend on evidence to be given by a range of witnesses, including cross examination of witnesses called by the Respondent to explain the reason for the Applicant’s redundancy and how the business was structured following his dismissal. In all the circumstances, the merits of the Applicant’s unfair dismissal application are a neutral consideration in relation to the question of whether there are exceptional circumstances.

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

[18] 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. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[19] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

Deputy President Saunders

Appearances:

Mr Zeimer on behalf of himself

Hearing details:

2020.
Newcastle (by telephone):
1 September.

Printed by authority of the Commonwealth Government Printer

<PR722426>

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

 2   Ibid

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

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