Benjamin Hadden v The Trustee For The O’Donoghue Trust trading as Centrepoint Plumbing
[2024] FWC 656
•14 MARCH 2024
| [2024] FWC 656 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Benjamin Hadden
v
The Trustee For The O’Donoghue Trust trading as Centrepoint Plumbing
(U2024/1209)
| DEPUTY PRESIDENT DEAN | CANBERRA, 14 MARCH 2024 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances – extension granted.
This decision concerns an application made by Mr Benjamin Hadden (the Applicant) pursuant to s 394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal by The Trustee for the O’Donohue Trust trading as Centrepoint Plumbing (the Respondent).
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 Applicant was notified of his dismissal by reason of redundancy on 24 November 2023, and the dismissal took effect on 6 December 2023. The application, received by the Commission on 5 February 2024, was therefore made 40 days outside the 21-day prescribed period.
The matter was set down for hearing on 13 March 2024. The Applicant was self-represented and the Respondent was represented by Ms E Ross of the Master Plumbers Association of Qld.
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]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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.
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 this application.
Reason for the delay
The Act does not specify what reason for the 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.[3]
There was no dispute that the reason given to the Applicant for his dismissal was a lack of work available, resulting in his redundancy.
The Applicant gave evidence that he accepted the reason given to him at the time, and that Mr O’Donoghue of the Respondent told him he would happily re-employ him if work became available. He clearly believed Mr O’Donoghue to be genuine in this regard and that the Respondent would contact him if work became available.
It is not in dispute that the Respondent advertised on SEEK on 19 January 2024 for multiple positions and hired four people as a result. The Applicant stated that the positions were advertised one week after the 21-day time limit for making this application had expired.
The Applicant gave evidence that he did not find out about the advertised positions until 4 February 2024, and he made this application the following day.
No evidence was given by the Respondent to refute the Applicant’s evidence. The Respondent submitted the redundancy was genuine. Further, the Respondent was not required to contact everyone who had ever worked for it in the past and offer them a job when work became available.
Having regard to the evidence and submissions presented, I find that the Applicant has provided an acceptable explanation for the delay in lodging his unfair dismissal application. He had accepted the reason to him given at the time of his dismissal as genuine, and he made this application the day after he became aware of the positions being advertised by the Respondent.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware that his dismissal took effect on 6 December 2023.
Action taken to dispute the dismissal
The Applicant took no action to dispute his dismissal until this application was lodged. However, the Applicant acted quickly by filing this application the day after he became aware of the Respondent advertising for positions the Applicant could have performed.
Prejudice to the employer
There is no evidence of any prejudice to the Respondent if an extension of time were to be granted. However, 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
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.
While it is not possible to make any firm or detailed assessment of the merits, it is arguable that the redundancy was not genuine given the uncontested evidence of the Applicant outlined earlier.
On balance, I consider the merits weigh slightly in favour of a finding that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
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.
I do not consider that there are any persons or cases relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration.
Conclusion
Having considered all of the matters to which my attention is directed by the Act, and for the reasons already canvassed above, I am satisfied that there are exceptional circumstances which would warrant my granting an extension of time.
Accordingly, an extension of time is granted. An order reflecting this decision will be issued and the application will be referred for conciliation.
DEPUTY PRESIDENT
Appearances:
B Hadden, on his own behalf.
E Ross for The Trustee For The O’Donoghue Trust.
Hearing details:
2024.
By telephone:
March 13.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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