Aron Tilden v Buddy Mawad

[2021] FWC 1454

[2021] FWC 1454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aron Tilden
v
Buddy Mawad
(U2021/751)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 17 MARCH 2021

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

Introduction

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

[2] The Applicant was dismissed from his employment with Buddy Mawad (Respondent) on 9 April 2020. The unfair dismissal application was lodged on 29 January 2021.

[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 30 April 2020. The application was therefore nearly nine months 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).

[4] Both parties were provided an opportunity to file material in support of, or in opposition to, the applicant’s application for an extension of time. The Applicant informed the Commission, by email, that he wished to rely on the information already provided in his form F2. The Respondent filed a form F3 which, in part, gave the reasons why the Respondent opposes the extension of time application.

[5] The application for an extension of time was listed for hearing, by telephone, at 2.30pm, 12 March 2021. There was no appearance by, or on behalf, of the Applicant. My Associate attempted to contact the Applicant, by telephone, twice at the commencement of the hearing and left two voicemail messages requesting that the Applicant urgently call my chambers. At 2.52pm on the same day, my Associate sent an email to the Applicant in the following terms:

“Your application for an extension of time to lodge your unfair dismissal application was listed for hearing, by telephone, before Deputy President Saunders at 2:30pm today. There was no appearance by you or on your behalf at that hearing.

Unless you make contact with us by 4pm on Monday, 15 March 2021, Deputy President Saunders will proceed to determine your application for an extension of time on the basis of the information contained in your unfair dismissal application form and your former employer’s response to your unfair dismissal application.”

[6] No communication was received from the Applicant by 4pm 15 March 2021, nor has any communication been received since that time. Therefore, I have decided to determine the application for an extension of time on the basis of the material before me. That is, the Applicant’s form F2 (with two attachments) and the Respondent’s form F3 (with one attachment).

[7] 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

[8] 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.

[9] 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.

[10] 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.

Reasons for the delay

[11] 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

[12] 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

[13] The Applicant relies on the following reasons for the delay in filing his unfair dismissal application: “I have delayed this claim because I was not comfortable going back to work with my previous employer due to my delivery area being Sydney. With the covid 19 cases there, until cases went down, or my delivery areas were not hot spot areas anymore, so I waited a while to figure out if I was going back mean while I was looking for another job, if I was to go back, I didn’t want to do a claim because the employer would have fired me. Also, I was unaware of there being a 21-day period from the dismissal date.”

[14] The Applicant’s decision not to file his application until COVID-19 cases went down in Sydney is not an acceptable or reasonable explanation for the nearly nine month delay in filing his application. First, because although reinstatement is the primary remedy in these matters, the Applicant could have sought the remedy of compensation instead of reinstatement in his application; and, compensation is in fact the remedy the Applicant is now seeking. Secondly, because there were several periods from the date of dismissal up until the Applicant lodged his application that there were very few active cases of COVID-19 in the community in Sydney and the Applicant did not file his application during any of those periods. Finally, the Applicant has not provided any explanation as to why he could not work in the community in Sydney because of the COVID-19 pandemic. For example, if the Applicant had a particular health risk which would have been exacerbated by exposure to COVID-19, his explanation may have been acceptable or reasonable; many people continued to work in Sydney during the period in which the Applicant decided not to file his application to avoid returning to work with his former employer.

[15] The Applicant’s decision not to challenge his dismissal because he feared that if he did so his former employer would have fired him does not accord with the material before the Commission. First, the Applicant’s own material makes it clear that he believed his dismissal took effect on 9 April 2020, hence, he could not have feared being ‘fired’ because he believed he had already been dismissed. Secondly, the Applicant was willing to put his employment with the Respondent at significant risk by refusing to return to work until COVID-19 cases reduced; therefore, I do not accept that he was afraid he would be fired if he filed an application. Finally, the Applicant’s decision to not make an application against his employer may have been a reasonable step to maintain the relationship in the hope that his employment would be resumed, but that does not mean that decision provides an acceptable or reasonable explanation for delaying his application.

[16] Finally, that the Applicant was unaware of there being a 21 day period within which to file his application is not an acceptable or reasonable explanation for the delay. 6

[17] For the reasons I have provided at paragraphs [11] to [16] above, I consider that the Applicant does not have an acceptable or reasonable explanation for not lodging his unfair dismissal application for nearly nine months after 30 April 2020. The absence of an acceptable or reasonable explanation for the delay from end of the 21 day period until the lodgment of the application on 29 January 2021 weighs against a conclusion that there are exceptional circumstances.

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

[18] The Applicant says his dismissal took effect on 9 April 2020 and he was aware of it at that time. The Applicant therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[19] On the material before me, other than lodging his unfair dismissal application on 29 January 2021, the Applicant took no steps to dispute his dismissal. This is a neutral consideration.

Prejudice to the employer

[20] 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

[21] 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 substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[22] The Applicant argues that his dismissal was unfair “because I never got paid my annual leave, but they have taken my hours if I was still. It would have been nice to get paid due to covid at that time of unemployment. It would have helped us out with bills, so we didn’t get behind until I had another form of income.”. The Respondent’s primary argument in opposition to the Applicant’s application is that the Applicant abandoned his employment. That argument is supported by text messages between the Respondent and Applicant which provide:

Managing director: “Are you coming back or not need to know” (time stamped 1.22pm, 3 April 2020)

Applicant: “I was planning on it arfter (sic) all this shit is settled But if you need to hire someone in my place I understand” (time stamped 1.24pm, 3 April 2020)

[23] In all the circumstances, my view is that the Applicant has a weak claim that his dismissal was unfair and the Respondent’s has an arguable case that the Applicant abandoned his employment. On that basis, I consider the merits of the Applicant’s claim to weigh against the Applicant’s contention that there are exceptional circumstances.

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

[24] 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.

[25] 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

[26] 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 and the Respondent, 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

Printed by authority of the Commonwealth Government Printer

<PR727861>

 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]

 6   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]