Applicant v Respondent

[2016] FWC 379

[2016] FWC 379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Respondent
(U2015/12572)

COMMISSIONER GREGORY MELBOURNE, 4 FEBRUARY 2016

Application for extension of time.

Introduction

[1] The Applicant was employed by the Respondent for almost eight years. During this time she was involved in an affair with the Managing Director of the business which continued until March last year. The Managing Director’s wife also has a senior role in the business, and has been the General Manager for 13 years. The Applicant and the General Manager had previously been close friends, as evidenced by the Applicant being the godmother to one of the General Manager’s children.

[2] The General Manager became aware of the affair in September last year and claims the Applicant resigned from her employment shortly thereafter. However, the Applicant submits she did not resign, or if she did she was left with no option, and her resignation should be viewed as a constructive dismissal. She has now made application under s.394 of the Fair Work Act 2009 (Cth) (“the Act”), however, the Respondent submits, in response, the Applicant was not dismissed and, in any case, her application was lodged outside the standard time limit.

[3] This decision accordingly deals with the issue of whether the application was lodged within the standard time limit and, if not, whether it is appropriate to exercise the discretion to extend time in which to make application.

[4] Mr D. Marsh of Lander and Rodgers appeared on behalf of the Applicant. Mr T. Dixon of FCB Lawyers appeared on behalf of the Respondent. Both were granted leave to appear under s.596(2)(a) as the matter involves a degree of complexity and their involvement would enable it to be dealt with more effectively. Given the sensitivities about the circumstances the Commission also agreed the names of those involved would remain confidential, and the published decision reflects that agreement.

The Issue to be Decided

[5] Section 394(3) of the Act provides the Commission may extend the time for filing an unfair dismissal application lodged outside of the standard 21 day time limit if it believes there are “exceptional circumstances” to warrant an exercise of this discretion, taking into account the following considerations:

“(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;

(f) fairness as between the person and other persons in a similar position.”

[6] Therefore, are there “exceptional circumstances” existing in all the circumstances of this matter to warrant an exercise of the Commission’s discretion to grant the Applicant additional time in which to make application?

[7] The circumstances also require the Commission to determine whether the Applicant resigned from her employment, or whether she was dismissed, and when the employment relationship ended.

The Evidence and Submissions

[8] The written submissions provided on behalf of the Applicant indicate at the outset her dismissal took effect on 11 October 2015 when the Respondent informed her by email she was not to return to work. As her unfair dismissal application was received by the Commission on 2 November the Applicant submits it was filed within the 21 day period provided for in s.394(2).

[9] The Applicant’s submissions also begin by rejecting the suggestion she resigned from her employment. She submits there is no evidence to support the view she resigned or otherwise abandoned her employment. In this context she refers to the payslip, dated 7 September 2015 and provided to her on 9 September, which makes no mention of it being a final statement of her outstanding accrued entitlements. She also submits she did not receive her accrued long service leave entitlements until 22 October, and this again confirms the payments made to her previously were not intended to be a final payout of her accrued entitlements. She continues to submit the visit she made with her ex-husband to the General Manager’s home on 8 September was simply intended to obtain clarification about the payments transferred into her bank account, and the discussions had nothing to do with her resigning from her employment with the Respondent. In her submission the only statements made in those discussions about her not returning to work were made by her ex-husband, but he only attended as a support person, and was not authorised to speak on her behalf.

[10] However, the Applicant also submits in the alternative that if the Commission finds there is sufficient evidence to establish she did resign then it should also have regard to the circumstances in which it was given, and whether it was freely offered or should instead be considered to be “a forced resignation.” 1 In this context the Applicant points to her being confronted by the allegation about the affair by the General Manager, and the “uncomfortable situation” that would have played out if she returned to work.2 The Applicant submits in these circumstances she had no option but to resign, given the conduct of her employer, and her resignation should be considered to be a constructive dismissal.

[11] The Applicant continues to submit that in the event the Commission finds her resignation was “a forced resignation” the effective date should be the point at which she was due to return from annual leave, being 11 October 2015. 3 She makes reference to the decision in LHMU & Anor v Cuddles Management Pty Ltd4(“Cuddles Management”) in support of this submission.

[12] However, she again submits in the alternative that if the Commission finds her resignation took effect on 7 September it should grant an extension of time in which to make application. In this context the Applicant submits the circumstances involving her long-term affair, and later being confronted with the allegations about it, constitute exceptional circumstances. In terms of the delay in making application she submits this can be explained by the lack of clarity about when her employment ended. She also submits the merits of the application should be confined to the circumstances in which she was terminated, and should not involve consideration of anything that might have happened after that time.

[13] The Applicant did not provide a witness statement. However, in her oral evidence she disagreed with the assertion she had used words in the conversation with the General Manager on 7 September that could be construed as her resignation. She also denied providing confirmation of her resignation in the subsequent visit to the Respondent’s house on 8 September. She said the intention of that uninvited visit was simply to obtain an explanation about the money deposited in her account, as the payments did not accord with what she understood had been agreed about the payments to be made to her while on annual leave.

[14] In cross-examination the Applicant said she could not recall whether she said words to the effect of “You know I’m not coming back” in the conversation with the General Manager on 7 September. 5 She also could not recall whether she was asked to return her company phone, or whether she had requested all of her entitlements be paid out, although she stated at a later point, “I may have said that.”6

[15] The Applicant also said she did not give her ex-husband any authority to speak on her behalf in the discussions at the house on 8 September, but did acknowledge he said something along the lines of, “You know she is not coming back.” 7 However, she was not sure why he had used those words. She also did not believe it would have been difficult for her to return to work, despite what had occurred. She also believed she continued to be employed by the Respondent in the period from 7 September to 11 October.

[16] The Respondent submits, in response, that the Applicant was not dismissed or forced to resign. It also submits that, in any case, she did not make her unfair dismissal application within the 21 day standard time limit, and there are no “exceptional circumstances” to warrant an exercise of the discretion to extend time in which to make application.

[17] It also submits, by way of background, that after first being employed in 2007 the Applicant commenced an affair in 2011 with the Respondent’s Managing Director, which continued until around March 2015. On 5 August 2015 the Applicant was also directed to take 10 weeks annual leave because she had an excessive amount of leave accrued at the time.

[18] The Respondent then submits that while on annual leave the Applicant had a telephone conversation with its General Manager, in which the Applicant resigned from her employment by saying words to the effect of “I’m not coming back to work.” In its submission the Respondent was entitled to treat these words as a resignation because, in all the circumstances, the Applicant indicated she no longer intended to be employed by the Respondent.

[19] It submits the decision in Anne Crowther v Ray Marshall Transport Pty Ltd 8 (“Crowther”) provides support for this submission, when the Commission found the employee’s statement “I won’t be back” also amounted to her resignation.

[20] The Respondent continues to submit its subsequent actions in paying out all of the Applicant’s accrued annual leave entitlements, and providing her with a copy of a final payslip, were consistent with its understanding about her resigning. It also submits on the following evening the Applicant and her former husband made an uninvited visit to the Respondent’s home, and in the heated conversation that followed her ex-husband made clear the Applicant would not be returning to work. In its submission the Applicant did nothing to contradict these statements in that conversation.

[21] The Respondent submits it continued to act in a manner consistent with having received the Applicant’s resignation when it cancelled her email access on 11 September, and then on 25 September disconnected her mobile phone after having obtained appropriate authority to do so.

[22] It submits the Applicant then telephoned the Respondent again on 10 October and attempted to retract her resignation. However, this was not accepted and her resignation, and its acceptance, were confirmed in an email sent to her on the following day. On 21 October the Applicant then sent a further email claiming she had not resigned, but had been dismissed with effect from 11 October. She also claimed to be owed pay in lieu of notice and her long service leave entitlements.

[23] Following receipt of this email the Respondent arranged for her long service leave entitlements to be paid. It submits it was not previously aware of this obligation and this was a genuine oversight, in large part because it had not previously been required to pay long service leave entitlements to an employee. The mistake also occurred because the business does not employ a person with dedicated HR skills.

[24] The Respondent also relies on the decision in P. O’Meara v Stanley Works Pty Ltd 9 (“O’Meara”) in rejecting the submission the Applicant was forced to resign because of conduct, or a course of conduct, it engaged in. It submits it did not engage in any conduct that would have had the probable result of bringing the employment relationship to an end, and the Applicant simply resigned from her employment after the General Manager found out about the affair.

[25] The Respondent continues to submit that, in all the circumstances, the application was not lodged within 21 days after the dismissal took effect. It also submits there are no exceptional circumstances to warrant an exercise of the Commission’s discretion to extend time in which to make application. It submits the Applicant unambiguously resigned from her employment, and this was confirmed by her former husband in the discussions at the Respondent’s house on the following day. It submits its actions from that time were entirely consistent with its understanding she had resigned.

[26] Its submissions also addressed each of the matters in s.394(3) in the following terms.

(a) the reason for the delay

[27] The Respondent submits the Applicant has not demonstrated any legitimate reason for the delay. It submits she has simply sought to retract her initial decision to resign in order to pursue the present application, presumably to gain some additional financial benefit.

(b) whether the person first became aware of the dismissal after it had taken effect

[28] The Respondent submits this consideration is of limited relevance in the present matter, given the Applicant was not dismissed. However, it submits she was clearly aware she had resigned with effect from 7 September 2015.

(c) any action taken by the person to dispute the dismissal

[29] The Respondent submits the Applicant attempted to retract her resignation 33 days after it took effect. In its submission she could have done this at an earlier point, but did not.

(d) prejudice to the employer (including prejudice caused by the delay)

[30] The Respondent submits it will be prejudiced if additional time is granted in which to make application, given the attempts by the Applicant to “artificially construct” a series of events to support her application. 10 It also notes she failed on previous occasions to adhere to directions issued by the Commission, and it has already incurred unnecessary costs and additional expense as a consequence.

(e) the merits of the application

[31] The Respondent submits the application has no merit because the Applicant was not dismissed and therefore is not a person protected by unfair dismissal. As a consequence it submits if the matter proceeds it will inevitably fail on this jurisdictional ground. It also submits that even if the Applicant is found to have been dismissed there is nothing to suggest her dismissal was “harsh, unjust or reasonable” and, in fact, other surrounding events provide justification for her summary dismissal. It also notes the Applicant has not provided any evidence going to the merits of the application.

[32] The Respondent also relies on the witness evidence of the General Manager. She said she has been in this position for 13 years and the Applicant was first employed as an admin clerk in November 2007. She and the Applicant were previously close friends and the Applicant was the godmother to one of her children.

[33] Her witness statement indicated she received a phone call on 5 September 2015 from the Applicant’s ex-husband, in which he told her about the affair. Her husband subsequently confirmed on 7 September he had been involved in the affair with the Applicant. The General Manager then sent a text message to the Applicant telling her she was aware of the affair, and asking her to stay away from her family.

[34] The General Manager said she then received a phone call from the Applicant in which she said words to the effect of, “You know I’m not coming back to work and you need to pay out all my entitlements – and I mean all my entitlements.” 11 The General Manager responded by indicating her entitlements would be paid out immediately, and told the Applicant she would need to return the mobile phone provided to her. The General Manager said she clearly understood the words “I’m not coming back” to confirm the Applicant was resigning from her employment with the Respondent.12

[35] The General Manager then proceeded to make arrangements to pay out the balance of the Applicant’s accrued annual leave, and also provided her with a copy of her final payslip.

[36] Her evidence continued to indicate that on the following evening, at around 11 p.m., the Applicant and her ex-husband came to her home, and during the course of the heated conversation that followed the Applicant said she wanted written confirmation about the payments transferred into her bank account. The General Manager said the Applicant’s ex husband also said “You know that she is not coming back,” and made further references to the Applicant being paid all of her entitlements, including her accrued superannuation. 13 She said he also asked her to confirm the Applicant had been “sacked,” however, the General Manager said she replied by indicating, “She hasn’t been sacked, she said she is not coming back to work.”14

[37] The General Manager said she understood this reference to “not coming back” to simply confirm what she understood to be the resignation communicated to her by the Applicant on the previous day. She said the Applicant made no attempt in this conversation to discount or contradict anything her ex-husband had said.

[38] The General Manager said the Applicant’s email access was subsequently disconnected on 11 September, and after receiving the appropriate authority she was removed from the Respondent’s phone account.

[39] She then had a further discussion with the Applicant on 10 October and was told the Applicant intended to return to work on the following Monday. The General Manager responded by telling the Applicant she had resigned, her resignation had been accepted, and her entitlements paid out. She then decided to provide the Applicant with an email confirming her resignation, as in all the drama of the previous events this had not been done. On 22 October she also forwarded a further payment to the Applicant in respect of her long service leave entitlements, as she was not previously aware this obligation existed. She did this after being informed about this obligation by the legal representatives acting on behalf of the Applicant.

[40] The Managing Director’s witness statement confirmed he had been involved in the affair with the Applicant, which ended in March last year. He also confirmed he told his wife about the affair on 7 September 2015.

[41] His evidence also confirmed that late on the following evening the Applicant and her ex-husband came to his home. He said her ex-husband asked that the Applicant be paid what she is entitled to, and he later said, “We both know that she is not coming back.” 15 The Managing Director said these comments confirmed his understanding that the Applicant had resigned from her employment with the Respondent, following the conversation with his wife on the previous day.

[42] He also understood the Applicant had later attempted to retract her resignation, and it was therefore decided to deliver an email to her home to confirm the resignation, because the business was not prepared to retract her resignation, or to employ her again.

Consideration

[43] The circumstances of this matter have obviously been difficult and distressing for those directly involved. However, in determining the matter it is necessary at the outset to establish when the Applicant’s employment with the Respondent ended, and whether her application was lodged “out of time.” The position eventually relied upon by the Applicant was that she did resign from her employment, but was forced to do so because of the Respondent’s conduct, and she should therefore be considered to be a person who has been dismissed per s.386(1)(b) of the Fair Work Act 2009.

[44] In terms of when the dismissal took effect the Applicant relies on the decision in Cuddles Management to support the submission it took effect when she returned from an extended period of annual leave on October 2015. If this submission is accepted her application, filed on 2 November, is made within the standard time limit. However, she submits in the alternative that if this submission is not accepted, and the application is found to have been filed out of time, exceptional circumstances exist to warrant an exercise of the discretion to extend time in which to make application.

[45] The Respondent agrees the Applicant resigned from her employment, and submits she did so in the telephone conversation with the General Manager on 7 September last year. It relies, in particular, on the evidence of the General Manager that the Applicant said in that conversation, “You know I’m not coming back.” 16 It also relies on the decision in Crowther to support the submission that while the Applicant did not expressly say she was resigning the words she used constituted her resignation.

[46] The Respondent also submits all of its actions from that point, together with what was said in the heated conversation late at night on the following evening by the Applicant’s ex-husband, simply acted to confirm the Applicant had resigned.

[47] In reviewing the evidence I am satisfied at the outset that the Applicant did use words to the effect of “You know I’m not coming back” in the telephone conversation with the General Manager on 7 September. I have no reason to doubt the evidence of the General Manager. Her actions from that point also appear to be consistent with her belief that following that conversation the Applicant would not be returning to work.

[48] The Applicant was also somewhat vague and uncertain about what was said in the conversation on 7 September. She indicated in cross-examination that she could not recall whether certain things were said, and stated “I may have said that” when asked whether she requested all her entitlements be paid out. She also indicated in cross-examination she could not recall whether she had said words to the effect of, “You know I’m not coming back.”

[49] I am also satisfied that the use of these words in the conversation on 7 September last year can be considered to be entirely consistent with the unfolding events. The Applicant said she believed she would have no difficulty returning to her former job, despite what had occurred. This view seems optimistic at best, given her now revealed long-standing affair with the Managing Director, and her former close friendship with his wife, who was also the General Manager of the business. It is difficult to understand how any form of relationship could be re-established in these circumstances in what is a relatively small workplace.

[50] I also note that the evidence, which is not disputed, indicates the Applicant’s ex-husband made clear in the late-night discussion on 8 September that the Applicant was not coming back to work, and it was now expected she would be paid all of her accrued entitlements, including her superannuation. The evidence also indicates the Applicant made no attempt to correct or contradict these statements, which presumably she would have done if they were not correct. This evidence about the actions of the Applicant and her ex-husband in this conversation is again entirely consistent with the Applicant having confirmed on the previous day in the discussions with the General Manager that she was resigning from her employment with the Respondent.

[51] However, I am also satisfied there is no evidence to suggest the Applicant expressly used the word “resign,” or made explicit reference to her resigning in the conversation with the General Manager on 7 September. Therefore, it is necessary to consider whether the words she used in that conversation can be said to constitute her resignation.

[52] As indicated, the Respondent relies on the decision in Crowther, handed down by Deputy President Sams in April 2014, to support its submission the words used by the Applicant effectively constituted her resignation. DP Sams also found the employee in that matter did not make explicit reference to her resigning in a discussion she had with the Managing Director. However, in the course of a conversation the Managing Director said, “You’re not really happy here, are you Anne?” to which the employee replied “No. I’m not and I’m going now,” and “I won’t be back, I’m getting out of this dirt.” 17 DP Sams accordingly found that in all the circumstances the words used by the employee constituted an intention to resign. This decision was later taken on appeal, but permission to appeal was refused.18

[53] I am satisfied the words used by the Applicant in this matter can be viewed in the same way. In making the statement “You know I am not coming back” in all the circumstances existing at the time I can only conclude that the Applicant was making clear she did not intend to continue to be employed by the Respondent, and was therefore resigning. This view is reinforced by the fact the Applicant does not deny that in the telephone conversation with the General Manager on 7 September she may have said she now expected to be paid out all of her accrued entitlements, an outcome that would also follow from the fact of her resignation. The General Manager then proceeded to pay out the balance of her accrued leave entitlements, and to provide her with what she believed to be a final payment statement. The fact she did not include the accrued long service leave entitlements at this time can be explained by her ignorance of that obligation. I am accordingly satisfied the actions of both women in the prevailing circumstances lead to a conclusion the Applicant’s statements in that conversation can be considered to constitute her resignation.

[54] Having come to this conclusion I now turn to consider whether the Applicant was forced to resign because of the conduct, or a course of conduct engaged in by her employer. In this context the Applicant places reliance on the fact she was confronted by the General Manager with the allegation about her being involved in the affair with the General Manager’s husband, and as a consequence was left with no option but to resign.

[55] The principles to be applied in these circumstances are generally well known and understood. The Respondent made reference in its submission to the Full Bench decision of the AIRC in O'Meara which set out those principles in the following terms:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” 19 Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 19

[56] I have applied these principles to the circumstances of the present matter. I am not satisfied, as a consequence, that it can be concluded that the Applicant was forced to resign because of the conduct, or a course of conduct, engaged in by her former employer. The Applicant engaged in a long-standing affair with a person who was not only the Managing Director of the business in which she was employed, but was also married to someone who was, at the time, a close friend of hers, and also occupied a senior position in the same business. The Applicant was presumably a willing participant in the affair, which extended over a significant period of time. When the General Manager became aware of the Applicant’s involvement in the affair she, not surprisingly, confronted her about it.

[57] There appears to be little doubt about the circumstances that prompted the Applicant’s decision to resign. In reviewing these circumstances it can only be presumed, on any objective view, that the Applicant must have given consideration to the fact her involvement in the affair, in all the circumstances, would likely at some point make it impossible for her to continue to be employed by the Respondent. However, I am also satisfied these circumstances are to do with matters of a personal nature between two erstwhile close friends, rather than anything that can be said to be conduct, or a course of conduct, engaged in by the Respondent.

[58] By way of further explanation they can be clearly contrasted with circumstances in which an employer, for example, demotes an employee to a significantly lesser position, or proposes a substantial reduction to an employee’s salary. Other examples might involve a decision by an employer to significantly alter an employee’s responsibilities, or a decision to relocate an employee to another work location, some distance from where they are now employed. These examples might well constitute action on the part of the employer, which is either intended to bring the employment relationship to an end, or to have the probable result of doing so. However, as indicated I am unable to conclude that these circumstances exist in the present matter. It follows from this conclusion that the Applicant is not a person who can be said to have resigned in the context of s.386(1)(b) of the Fair Work Act 2009.

[59] I have therefore concluded that the Applicant resigned from her employment, with effect from 7 September 2015. It follows her unfair dismissal application, filed with the Commission on 2 November 2015, was filed outside of the standard 21 day time limit. I therefore now turn to consider whether there are “exceptional circumstances” in the context of this matter, taking into account the considerations in s.394(3), to warrant an exercise of the discretion to extend time in which to make application.

[60] As indicated, in considering an application for an extension of time the Commission must have regard to each of the matters set out in s.394(3) of the Act in determining whether “exceptional circumstances” exist to warrant an exercise of the discretion. A number of decisions of this Tribunal and its predecessors have also considered what is required to find “exceptional circumstances” exist to justify an extension of time being granted. The decision of the Full Bench in Nulty v Blue Star Group (Nulty) 20 was handed down in the context of a general protections application, however, the principles established in that decision have been held to be of broader application. Relevant extracts from the Full Bench decision are set out at [13] to [14] in the following terms:

“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.

Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 21

[61] The decision makes clear “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.394(3) I must have regard to.

(a) the reason for the delay

[62] The Applicant’s submissions provide no real reason for the delay, apart from the issues about when the employment relationship ended. The Respondent submits that after resigning from her employment the Applicant later sought to pursue the unfair dismissal application to try and extract further payments from her former employer.

(b) whether the person first became aware of the dismissal after it had taken effect

[63] The respective submissions of the parties in regard to this consideration are similar to those referred to above. The Applicant submits her dismissal did not take effect until 11 October and her application was therefore lodged within time. The Respondent submits she resigned on 7 September, and she was well aware of this at the time.

(c) any action taken by the person to dispute the dismissal

[64] The Applicant submits she has sought to pursue the present application in order to take issue with her dismissal. The Respondent submits she resigned and now seeks to pursue the present application in order to obtain some additional financial payment.

(d) prejudice to the employer (including prejudice caused by the delay)

[65] The circumstances involved in this matter have obviously been distressing for those directly involved. The Respondent also submits it has already suffered significant prejudice because the Applicant has not complied at all times with previous directions issued in regard to the conduct of this matter. There seems little doubt there will inevitably be significant additional prejudice for the Respondent if additional time is provided in which to make application. This is likely to be exacerbated in all the circumstances of this matter, given the nature of the relationships of those involved

(e) the merits of the application

[66] Previous decisions of the Tribunal have concluded that the Commission is not required in proceedings of this kind to come to a concluded view about the respective merits of a particular application. That task is to be left to the Tribunal when dealing with the substantive unfair dismissal application. However, given the conclusions I have come to in this matter, this consideration is of particular significance in this case. I refer, in particular, to the conclusion that the Applicant is not a person who has been dismissed under s.385 of the Act.

(f) fairness as between the person and other persons in a similar position.

[67] Neither party made submissions suggesting this consideration was of any particular relevance in the context of the present matter.

Conclusion

[68] In conclusion, having had regard to all of the circumstances involved in this matter, including the considerations in s.394(3) I am required to take particular account of, I am not satisfied there are “exceptional circumstances” existing to warrant an exercise of the discretion to extend time in which to make application. I refer, in particular, to the conclusion I have come to in regard to s.394(3)(e). It follows that the application must be dismissed.

COMMISSIONER

Appearances:

Mr Dru Marsh of Lander and Rodgers appeared on behalf of the Applicant.

Mr Tom Dixon of FCB Group appeared on behalf of the Respondent.

Hearing details:

2015.

Melbourne (by video):

15 January.

 1   Transcript at PN18

 2   Ibid at PN245

 3   Ibid at PN276

 4 [2009] FMCA 463

 5   Above n.i at PN69

 6   Ibid at PN73

 7   Ibid at PN95-PN99

 8   [2014] FWC 2119

 9   [2006] AIRC 496; PR973462

 10   Respondent’s Outline of Submissions at para 4.20

 11   Exhibit FCB1 at para 3.6

 12   Ibid at 3.7

 13   Ibid at 3.12

 14   Ibid

 15   Exhibit FCB2 at para 3.1

 16   Above n.xi

 17   Above n.viii at [80]

 18   [2014] FWCFB 4007

 19   Above n.ix at [23]

 20   [2011] FWAFB 975

 21   Ibid at para 13 to 15

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