Applicant v The Employer
[2024] FWC 611
•8 MARCH 2024
| [2024] FWC 611 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Applicant
v
The Employer
(U2023/12684)
| COMMISSIONER WILSON | MELBOURNE, 8 MARCH 2024 |
Application for an unfair dismissal remedy – application filed out of time – circumstances not exceptional – application dismissed.
This decision concerns an application made by the Applicant, alleging unfair dismissal by his former employer (the Employer, or the Respondent). The Applicant’s employment ended on 22 November 2023. His application for unfair dismissal remedy was lodged in the Fair Work Commission (the Commission) on 18 December 2023.
Because of submissions made to me by the Applicant’s Representative about his state of mind I have decided to de-identify this decision. While I do not have formal evidence about the Applicant’s health, I consider I should exercise great caution in the publication of this decision.
Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates referred to above it may be seen that the Applicant’s application was made 5 days outside of the statutory time limit which ended on Wednesday, 13 December 2023.
Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of the Applicant’s application. The Respondent objects to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application.
The objection was the subject of a Determinative Conference before me on Friday, 23 February 2024 at which the Applicant was represented by a family friend (the Applicant’s Representative). the Applicant was excused from providing oral evidence. The Respondent was represented by a paid agent.
Written statements were provided in support of an extension of time for the Applicant by his Representative, his mother and father and a family friend. A written statement was provided for the Respondent by its Director. None were required to provide oral evidence.
Permission for the Respondent to be represented by a paid agent was granted by me pursuant to s.596(2)(a) of the Act, with me being satisfied that such representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. I was further satisfied it was appropriate in all the circumstances to exercise my discretion and permit representation of the Respondent by a paid agent.[1]
In considering an application for an extension of time for the making of an unfair dismissal application, the FW Act requires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion[2] and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[3]
I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in the Applicant’s case and that an extension of time should not be granted for the making of his unfair dismissal application.
BACKGROUND
The Applicant commenced employment with the Respondent in 2022 as an apprentice mechanic. His employment ended on Wednesday, 22 November 2023.
The Respondent is a small business employer within the meaning of the Act however does not assert the dismissal was in accordance with the Small Business Fair Dismissal Code.
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(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.”
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account six nominated criteria.
Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” [4]
The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[5]
In considering whether an extension of time should be granted to the Applicant, I am required to consider all of the criteria in s.394(3), which I now do.
1. The reason for the delay
The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[6] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[7] An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[8] While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[9]
In the Applicant’s case the relevant period for consideration of an extension of time is that after the last day for a lodgement to be within time, namely Wednesday, 13 December 2023 (with the lodgement being on Monday, 18 December 2023).
On the initiating Form F2, the Applicant states that he is making the application within 21 calendar days of his dismissal taking.
On 10 January 2024 the Applicant’s Representative filed an amended Form F2 on behalf of the Applicant which is submitted “for your information only”. The Respondent disputes the validity of the filing of the amended application, which I reject as the amended form responded to a request made by me as parts of the original application were not legible. The amended Form F2 also states the Applicant is making the application within 21 days of the dismissal taking effect with the form unsigned and also dated 18 December 2023.
The Applicant advances three primary reasons for the late filing of the application with each considered by me below. The Applicant’s father in his written statement also says that a contributing factor to the delay was fear of legal action being taken against them if the Applicant took steps to dispute the dismissal.[10]
Lawyers advice/representation by a lawyer/whether lawyer to file application on Applicant’s behalf
The Applicant sought advice from a law firm in Tasmania with expertise in employment law matters, with it being said that his father had been advised to do so after calling the Commission. The Applicant submits that he received incorrect information from a lawyer as to the final day for filing an in-time application and also that he believed that the lawyer was to submit the application on his behalf.
The Applicant had an initial client consultation with a lawyer on Monday, 4 December 2023. Prior to the Determinative Conference, the Applicant submitted a copy of a redacted letter provided by the lawyer to him following the initial consultation and dated 8 December 2023. The visible content of the 8 December letter says the lawyer had been instructed to lodge an unfair dismissal application on the Applicant’s behalf. Due to the redactions to the letter, I was unable to confirm if the remainder of the letter said anything which confirmed that the lawyer advised he would file the unfair dismissal application on the Applicant’s behalf. I raised this issue with the parties during the Determinative Conference and permitted the Applicant to file an unredacted version of the letter if he so chose to do following the Determinative Conference. Before doing so I explained that the letter was likely covered by legal professional privilege and that the Applicant did not need to provide an unredacted copy of the letter if he did not wish to do so.[11]
The Applicant chose to file an unredacted copy of the letter after which the Respondent was offered and accepted the opportunity to file a response to the unredacted letter. According to the unredacted letter that was provided to the Applicant from the lawyer following the initial consultation the summary of the instructions provided to the lawyer included:
“I note you’ve instructed me to:
• Lodge an Unfair Dismissal application on your behalf”
and
“I note your instructions that:
• you were terminated on the 29th of November 2023”
and
“If you wish to proceed with an Unfair Dismissal claim you will need to lodge an application in the Fair Work Commission, within 21 days of your dismissal. You were dismissed on the 29th of November 2023; therefore, you must lodge your application by the 21st of December 2023.”
and
“Process of Lodging an application
To lodge your application, you need to:
• Complete and provide a copy of Form F2 and corresponding documentation to
the Commission via email to [email protected].
• Pay the application fee of $83.30”.
The first part of the letter which summarises that the lawyer has been instructed to lodge an unfair dismissal application on the Applicant’s behalf appears to contradict the content of the remainder of the letter which explains that to proceed with a claim the Applicant would be required to lodge the application and then provides instructions on how to do so. I do not take from this correspondence that the lawyer confirmed that he would lodge the application on the Applicant’s behalf.
The unredacted 8 December letter also set out a proposed costs arrangement.
In preparation for these proceedings the lawyer provided to the Applicant a letter dated 29 January 2024 addressed to the Commission which he in turn provided to the Commission. The 29 January letter included the following statements:
“I confirm that I had provided advice regarding lodging an unfair dismissal application on the 4th of December 2023. I was advised that [the Applicant] had been dismissed on the 29th of November 2023. I advised that any claim unfair dismissal would need to be lodged by the 21st of December, as this was 21 days from the date he was dismissed.
At our initial consultation [the Applicant] had instructed me to represent him and lodge the application on his behalf. I advised that he should lodge the application himself and he represent himself. I advised that if I filed the application and/or represented him there would be costs associated. I was under the assumption that [the Applicant] understood and agreed, as he did not state otherwise.”
Two things spring from this material. First, the lawyer was under the apprehension that the dismissal date was 29 November 2023 and not 22 November 2023 (and the same dismissal date was stated in the 8 December 2023 letter). Second, the lawyer made plain to the Applicant that he would be responsible for lodgement of an unfair dismissal application.
The Applicant submits that he understood the lawyer would submit an unfair dismissal application on his behalf after the initial consultation. He says that he only became aware that the lawyer would not be filing an application on his behalf when their office followed up to confirm he had filed the application. The letter from the lawyer says that he understood the Applicant to be filing the application himself as to engage a lawyer would incur fees.
The 29 January 2024 letter also says the lawyer sent an email to the Applicant to remind him he needed to lodge the application on 18 December 2023.
“On the 18th of December I emailed [the Applicant], reminding him he needed to lodge the Fair work Application. On the 18th of December the Applicant, along with his mother and father made an appointment to complete the application. The application was mostly completed at this time. I was advised that [the Applicant] and his family had questions regarding who could represent them. I advised they could have myself, a family member, a family friend, or he could represent himself. His mother than asked if [the Applicant’s Representative] would be appropriate. His mother then advised that [the Applicant’s Representative] was “the one who got him the job”. I advised yes, she would be appropriate. His mother then called [the Applicant’s Representative] asking for her last name and consent. The representative section of the claim form was then completed.”
and
“I note I had not been instructed to review the application in its entirety.” [12]
The Applicant’s Representative puts forward that there had been a phone call from the legal practice on 17 December which prompted the meeting on 18 December 2023 but that she does not evidence of this. Further, the joint statement from the Applicant’s parents on the subject appears to put forward two contrary propositions. Firstly, that they were under the apprehension the lawyer would be lodging the application:
“If (sic) was a relief to know that the unfair dismissal claim would be lodged by the lawyer as we had no idea how and where to do this and could focus on Oscar’s mental health, our other 2 children and our own jobs.”[13]
Secondly, that a finding that responsibility for lodgement of the application rested with the Applicant and his family:
“When contacted by the lawyer and asking if we had lodged, we told him that he was doing that and he informed us he wasn’t and that it was the last day we could lodge. We went straight in and he filled in the paperwork under our direction, he scanned it and forwarded it to us and told us how to lodge. We paid the claim invoice and thought that was done.”[14]
While I note the discrepancies between the evidence of the Applicant’s Representative, and within the statements of the Applicant’s parents, I do not believe it to be ultimately relevant as all concerned agree that a meeting between the Applicant and the lawyer took place on 18 December 2023.
The 8 December 2023 correspondence from the lawyer confirms an instruction that the Applicant was dismissed on 29 November 2023 whereas the other material before the Commission provides that the Applicant was terminated on 22 November 2023:
“COMMISSIONER: The other question I need to ask is that correspondence from [the lawyer], both on page 76 and page 77, refers to him being told that there was a termination of employment on 29 November 2023. The importance of that is that the documents show elsewhere that [the Applicant] was actually dismissed on the 22nd of December. So I just want to clarify, is there any evidence as to what was said to [the lawyer] about the date of termination?
[THE APPLICANT’S REPRESENTATIVE]: No, it was just a conversation, and then he's written that down in that, yes, initial letter there. And, you know, once it was read afterwards it just became that thing there of they just saw that he was going to submit it, got a letter on the 8th saying that he would submit, and presume, I suppose, that he would submit it straight away. So, yes, as to where that confusion came from, I do not know.”[15]
The material before me shows that the Applicant was dismissed with effect from 22 December 2023 with both the initial and subsequent application form, the Form F2, stating that date as both the date on which termination of employment was notified to him and when it took effect. These entries on the initial F2 are handwritten. While there is evidence that the form was mostly completed when sent by the lawyer to the Applicant there is no direct evidence about whose handwriting appears in the Form F2. However as much of the substance of the form is written in the first person it appears reasonably likely that it was handwritten by the Applicant himself. If however the handwriting is the lawyers, then no matter of error on his part arises. In the alternative if the handwriting is that of the Applicant or someone in his immediate family the author was plainly not under any misapprehension as to the date termination of employment took effect.
I do not find that representative error was a contributing factor to the late lodgement. I am satisfied that there was likely a misunderstanding on the part of the Applicant in his belief that the lawyer would lodge the application on his behalf however that should have been dispelled when the 8 December letter was received.
I am further satisfied that it is likely the Applicant or members of his family provided incorrect instruction to the lawyer about the date of his dismissal. The 8 December letter summarises the instruction given that “the termination took effect on 29 November 2023”. While the error could have been the lawyer’s it is the Applicant’s responsibility to review the letter provided by the lawyer and to take action if there was any incorrect information provided. There is no evidence before me that the Applicant took any steps to contact the lawyer after receiving the letter dated 8 December 2023 and before the meeting on 18 December. Given the erroneous date of dismissal detailed in the letter it is a logical conclusion that the advice given for the final day for an application to be filed within time would be incorrect.
It was not put to me that the Applicant’s literacy was so poor that his family acted as his agent, taking full responsibility for the drafting, and lodging of an application and I do not find that such was the case. The Applicant’s first application included more than a page of handwritten reasons, written in the first person. While I requested the document be refiled as it was not entirely legible, that request was directed to the fact that the document had been scanned in such a way that it was illegible in parts. I am not satisfied that the Applicant himself had no or extremely limited capacity to read and write; to understand the date of his dismissal or its relationship to the statutory 21-day period for the making of applications; and to fill in and submit an in-time application.
It follows that the only “representative” to be considered in relation to the matter of representative error was the lawyer consulted by the Applicant and his family. Even then the lawyer cannot be truly found to be the Applicant’s engaged solicitor since the person was not formally engaged and in any event, he made plain to the Applicant that the responsibility for filing an unfair dismissal application rested with the Applicant.
I therefore do not find representative error in the overall circumstances before me. I am satisfied from the materials before me that at all times the Applicant was advised that he held responsibility for making the unfair dismissal application and to do so within the time limits provided by the Act. Either he, or to the extent he has poor literacy skills, his family, had responsibility for checking the date of dismissal and the consequential matter of when was the final date for the making of an in-time application.
Incapacity due to illness
The Commission has said repeatedly about extensions of time involving the proposition that a medical illness explains a filing delay requires compelling medical evidence to that effect. In order to accept evidence of this type, the Commission expects to have an insight into the extent of the person’s incapacity during the whole of the period following termination of employment. Cogent medical evidence of these things will likely need to be provided.[16]
From the dates referred to above, the Applicant was dismissed on 22 November 2023. The last day for the filing of an application was 13 December 2023. The application was ultimately filed on 18 December 2023 being 5 days late.
The Applicant claims that “[s]ince the termination I plunged into a sudden and deep depression with severe anxiety. I found, and still find it hard to get out of bed most mornings and am exhausted by the end of the day. I constantly now doubt my abilities and am finding it hard to trust people and feel completely alone and disappointed with the world and people.”[17]
The Applicant has provided three WorkCover Tasmania – Workers Compensation Medical Certificates. These certificates detail three examinations: on 7 December 2023, 14 December 2023 and 11 January 2024 and provide for two periods of incapacity for any work from 14 December 2023 to 11 January 2024 and from 11 January 2024 to 8 February 2024. The first certificate from the 7 December 2023 examination did not provide any period of incapacity. These certificates therefore do not cover any of the period required for an in-time application with the first period of incapacity commencing the day after the final day for an in-time lodgement.
The Applicant’s Representative and the Applicant’s mother and father have filed multiple written statements in support of the Applicant’s mental state. No evidence has been provided by a medical professional.
During the hearing, the Applicant’s Representative elaborated on the reasons for the late filing:
“[THE APPLICANT’S REPRESENTATIVE]: Because after the dismissal which was a complete and total surprise to him, there was no warnings or no procedural fairness followed leading up to the time, so it was a complete shock to him for those first couple of weeks. He was very confused, angry, sudden depression and anxiety.”[18]
There is an inconsistent timeline of when the Applicant sought medical advice following his dismissal. During the Determinative Conference the Applicant’s Representative says that the Applicant went to see a doctor based on the lawyer’s advice on 4 December 2023:
“At this stage [the Applicant] was starting to feel that bit more confident, because we'd told him that it was all wrong, but he didn't believe us and was still feeling really down about it. So with the lawyer saying that he did have a case, he went to the doctors. The day of the doctors, they went back to the lawyers on the 7th, with the doctor's certificate, who the receptionist said that they would send to the employer with a receipt – one of those receipt things, because they don't know how to do it and don't have a computer or don't have a good enough computer and internet connection. Paid for the lawyer, and on the 8th they got the letter that the lawyer had been retained and that the form would be done.”[19]
This is not consistent with the initial written statement provided by the Applicant’s mother which suggests that the Applicant visited his General Practitioner prior to seeking legal advice:
“when [the Applicant] was a little more stable after seeking help from GP we then started the process of what next to do we sought out firstly free legal advice which then took time to get into then finding a lawyer to represent [him].”[20]
This is contradicted in the later filed join statement from the Applicants mother and father which says:
“After the initial lawyer’s appointment, we were then able to convince Oscar to go to the doctors to seek help with his depression.”[21] (Underlining added)
Due to the inconsistencies in the statements provided by the Applicant’s family, I place little weight on them. The statements provided in support of the Applicant undoubtedly detail each’s concern for the Applicant’s wellbeing and I acknowledge the difficult circumstances that follow a dismissal however such does not support a finding that the Applicant was so incapacitated for the entire period following his dismissal as to not be able to attend to filing an application.
I do not find that the evidence presented concerning the Applicant’s illness provides a credible explanation for the period of delay. The delay in making the application is 5 days. The evidence provided demonstrates that the Applicant was unfit for work for two periods commencing 14 December 2023 which is after the final day for filing an in-time application. The evidence provided does not satisfactorily explain the reason the Applicant’s application was late.
Limited literacy skills and unawareness of application and time limit
The Applicant submits that prior to meeting with a lawyer he was unaware of an unfair dismissal application. He says “my sister had put in an online inquiry with fair work about how to do this, but we didn’t get a response and due to my mental state and the fact we didn’t know how, wasn’t followed up.”[22]
The Applicant’s mother in her written statement says that the Applicant has “limited understanding and literacy skills” and “we had tried to submit online a complaint and start the forms but unbeknown as we had not done this before”.[23] The Applicant’s father also says that he attempted to submit an unfair dismissal application on his son’s behalf but that it was unsuccessful:
“I emailed fair work also with support of family to make a claim of unfair dismissal which did not go through i was unaware of this at the time as I have limited computer skills.”[24]
The alleged earlier attempt to file an application was not advanced as a reason during oral submissions.
There is disagreement between the parties as to whether the Applicant received a copy of the Fair Work Information Statement when he commenced employment, with the Applicant saying he did not receive this document and the Respondent saying it was provided but the Applicant refused to take the document with him. Throughout the Determinative Conference the Respondent’s Representative made references to the Applicant declining to accept written documentation throughout his employment as he comprehended information better in a verbal format.[25] I view this as a neutral consideration in my determination.
That the Applicant was not aware of the unfair dismissal application or the statutory requirements for the making of an unfair dismissal application does not provide a credible explanation for supporting an extension of time in respect of this application although I have noted that, on being advised by the lawyer that he was running out of time to make an unfair dismissal application, he took steps to lodge this application promptly.
Care should be taken by any person contemplating making an application after the end of their employment about the appropriate application and the applicable time limit. The Commission has publicly available a content rich website in plain language containing procedural advice and highly detailed Benchbooks on all aspects of the relevant jurisdiction. Applications can be lodged by post or delivery in person to a Commission office for individuals who experience difficulty in accessing technology.
The statutory deadline requires active engagement with the making of an unfair dismissal application, personally or through one’s representative which in this jurisdiction does not have to be a lawyer, union or even paid agent. The lack of active engagement with the deadline, and a consequential late lodgement means an inevitable retrospective examination of an applicant’s circumstances to ascertain whether there was an acceptable explanation for the delay. Ignorance of the timeframe for lodgement is not an exceptional circumstance[26] and the Applicant had his parents and a family friend assisting him with the process. I am therefore not persuaded by the Applicant’s submissions in this regard and the fact that his parents say they attempted to make an earlier application goes against a finding that the Applicant was unaware of the unfair dismissal application.
In this case, I am not satisfied that there are exceptional circumstances to explain the delay in filing the application.
Accordingly, consideration of this criterion does not resolve in favour of the Applicant for the granting of an extension of time for the making of his application.
2. Whether the person first became aware of the dismissal after it had taken effect
A termination of employment on the employer’s initiative does not take effect unless and until it is communicated to the employee whose employment is being terminated.[27] the Applicant was notified of the dismissal on 22 November 2023.
As the termination of employment was communicated to the Applicant on the same day it took effect, this factor weighs against an extension of time being granted for the making of the application.
3. Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[28]
The origins of the criterion in s.394(3) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time”[29] (underlining added).
The Applicant’s Representative adduced evidence in the Determinative Conference that she and the Applicant’s parents had requested a copy of the contract of employment said to have been breached by the Applicant from the Respondent as well as other documents such as payslips however were not provided with all of the requested material:
“[THE APPLICANT’S REPRESENTATIVE]: Yes. So that’s where it was. It took a couple of weeks. [the Applicant] was not – [he] couldn’t talk or be around or say anything about Adam, Chloe, Emma or [the Respondent], because the whole thing took him by surprise. And it was on his parents and my behalf that we sent emails backwards and forwards, which I think there is a copy of an email in there where his mother, …, had gone in the next day to return his uniforms, where she was met with accusations and hostility.
She said that she would return the remaining uniform by post and gave them a written letter asking for all the documents and payslips and other things that they said in the termination that they would supply on request. They sent an email out saying that they wouldn’t do that because the address was different and that it hadn’t been signed by [the Applicant] or given to them by [him].
So then an email was sent out asking for that. Certain – three documents came back but not a PDF – a copy of the so-called contract. And then it wasn’t for a week or so later again that we actually got printed instead of just an email of his payslips.”[30]
The Respondent says that an updated contract of employment was provided to the Applicant in early 2023 and that the Applicant took it home to read with his family and sign. He then returned a signed copy of the contract to the Respondent.[31] It disputes that other documentation has not been provided.
Besides requesting documentation from the Respondent, there is no material before the Commission to indicate the Applicant attempted to contest the dismissal, other than by making the application the subject of these proceedings. The material before me does not lead to a finding that the decision to terminate was being actively contested.
Consideration of this criterion therefore does not support a finding of exceptional circumstances.
4. Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 5 days. The Respondent does not claim that the delay in lodging the application caused it prejudice.
While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.[32]
In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter is a neutral factor in my consideration.
5. The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[33] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[34]
The Applicant submits the dismissal was unfair. The Applicant’s case is that he did not have an employment contract between himself and the Respondent (except for an earlier contract relating to his apprenticeship); he did not receive feedback on poor performance and understood his work to be acceptable; that he did not receive feedback on his behaviour or conduct; that he did not have suitable uniforms to wear; and that he did not receive suitable supervision and instruction and was using his mobile phone to search for instructions on how to perform tasks.
The Respondent submits the actions of the Applicant constitute serious misconduct and summary dismissal was warranted.[35] The Respondent’s case is that the Applicant breached the employment agreement by operating his own mechanic’s business using the Respondent’s premises; removal of a motor vehicle from the Respondent’s premises without permission and using client information for financial gain; removal of tools and consumables from the Respondent’s premises for use by the Applicant’s business; complaints from staff, suppliers and customers about the Applicant’s behaviour and the quality of the work he performed; the Applicant’s refusal to wear personal protective equipment or uniform; the Applicant’s performance; and prioritising unpaid work on friend’s vehicles over paying clients.[36] The Respondent asserts that no warnings were required.
As a result, it is the case in this matter, as with most extension of time matters, that the uncertainties about each party’s case and each parties evidence on the merits is yet to be tested lead me to find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of the Applicant’s unfair dismissal application.
6. Fairness as between the person and other persons in a similar position
This consideration is concerned with the consistent application of principles in applications of this kind, ensuring fairness between an applicant and other persons in a similar position, noting that applications for an extension of time generally turn on their own facts.[37] This may require consideration of applicants whose applications are either currently before the Commission, or have been decided in the past.[38] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[39]
No such factors are featured in this matter and so consideration of this criterion is also a neutral factor in my conclusion about exceptional circumstances.
Before closing it is to be noted that the Applicant filed material for the Commission’s consideration after the Determinative Conference had closed. Other than that dealing with the unredacted lawyer’s letter dated 8 December 2023 I have not taken this further material into account in forming my decision. Firstly, material other than that going to the 8 December letter is largely not relevant to the matters I need to decide, and secondly, he had opportunity to provide in advance of the Determinative Conference an outline of his respective case and evidence in support, with it not being appropriate to provide ongoing opportunities for the filing of material after my decision was reserved.
CONCLUSION
Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by the Applicant.
As a result, the Applicant’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.
COMMISSIONER
Hearing details:
2024.
Melbourne (via video conference);
23 February.
Final filing of material:
26 February 2024 for the Applicant
29 February 2024 for the Respondent
[1] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].
[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[4] Nulty v Blue Star Group, 2011, 203 IR 1, [13].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].
[8] Ibid, [40].
[9] Ibid, [41].
[10] Witness Statement of Applicant’s father, filed 23 January 2024, appearing at Digital Court Book p.68.
[11] Transcript, PN 62 – 69, 173 – 178.
[12] Letter from lawyer to Fair Work Commission dated 29 January 2024.
[13] Applicant Outline of Argument: Extension of Time (Witness Statement of Applicant’s parents), filed 1 February 2024, appearing at Digital Court Book p.94.
[14] Ibid.
[15] Transcript, PN97 – 98.
[16] See Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu
Duo (Lynda) - [2018] FWCFB 1643, [38], [67]
[17] Applicant Outline of Argument: Extension of Time, filed 1 February 2024, appearing at Digital Court Book p.90.
[18] Transcript, PN40.
[19] Ibid, PN86.
[20] Witness Statement of Applicant’s mother, filed 23 January 2024, appearing at Digital Court Book p.63.
[21] Applicant Outline of Argument: Extension of Time (Witness Statement of Applicant’s parents), filed 1 February 2024, appearing at Digital Hearing Book p.94
[22] Applicant Outline of Argument: Extension of Time, filed 1 February 2024, appearing at Digital Hearing Book p.90.
[23] Witness Statement of Applicant’s mother, filed 23 January 2024, appearing at Digital Hearing Book p.63.
[24] Witness Statement of Applicant’s father, filed 23 January 2024, appearing at Digital Hearing Book p.68.
[25] See for example: Transcript, PN143.
[26] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14].
[27] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496.
[28] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[29] Ibid.
[30] Transcript, PN82 – 84.
[31] Witness Statement of Respondent’s Director, filed 16 February 2024, appearing at Digital Hearing Book p.190.
[32] Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].
[33] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[34] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[35] Form F3 Employer Response Form, filed 11 January 2024, appearing at Digital Hearing Book p.132.
[36] Ibid, appearing at Digital Hearing Book p.133 and Termination Letter, appearing at Digital Hearing Book p.141.
[37] GHD Pty Ltd v Kevin Alan Black[2023] FWCFB 38, [94].
[38] Wilson v Woolworths [2010] FWA 2480, [24] - [29].
[39] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
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