Bradley Mills v GC Fresh Foods Pty Ltd as Trustee for the GC Fresh Foods Unit Trust T/A Kenbry Seafoods

[2015] FWC 7882

[2015] FWC 7882

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Mills
v
GC Fresh Foods Pty Ltd as Trustee for the GC Fresh Foods Unit Trust T/A Kenbry Seafoods
(U2015/13620)

COMMISSIONER JOHNS MELBOURNE, 25 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] On 13 November 2015 the Fair Work Commission (Commission) issued an Order¹ refusing an application for an extension of time by Mr Bradley Mills (Applicant) and dismissing his application for an unfair dismissal remedy.

[2] On 15 November 2015 the Applicant requested reasons for that decision. These are those reasons.

[3] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the FW Act must lodge an application within 21 days after the dismissal took effect.² However, the Commission may allow a further period for lodgement in exceptional circumstances.³

[4] The Applicant made an application for a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 14 October 2015, that being 28 days after his employment was terminated by GC Fresh Foods Pty Ltd as Trustee for the GC Fresh Foods Unit T/A Kenbry Seafoods (Respondent) on 16 September 2015.

The jurisdictional objection

[5] On 28 October 2015, the Commission wrote to the Applicant, outlining the matters the Commission was required to consider under the FW Act and asked him to provide a statement addressing those matters within 14 days. The Applicant was advised that unless he requested otherwise the matter would be dealt with on the papers.

[6] On 5 November 2015, the Applicant sent correspondence to the Commission providing reasons for the delay in lodgement. In short the Applicant says:

a) staff were informed that the meeting with Worrells (Administrator) would clarify the situation and that staff should await the outcome before taking the matter further, however, no further advice has been received from the Administrator;

b) due to the number of staff affected it was decided that applications would be submitted together; and

c) three other applications were filed within the 21 day time limit.

[7] It is noted that the Respondent did not make submissions in relation to the extension of time issue.

Legislative scheme

[8] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s.394(3) of the FW Act:

(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.

[9] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.⁴ In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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. ⁵

Consideration

Paragraph 394(3)(a) - The reason for the delay

[10] It is indisputable that there were 28 days between the Applicant’s last date of employment and when an application was filed with the Commission.

[11] The Applicant says the reason for the delay was that he was awaiting advice from the Administrator and intended to lodge his application with colleagues intending to dispute the nature of their termination. However, the Applicant was aware of the date that he last worked for the Respondent. The 21 day period ran from this date. In addition, three other applications were lodged within the time limit.

[12] The reasons advanced by the Applicant were not out of the ordinary, unusual or uncommon.

[13] This factor weighed against granting the Applicant a further period for lodging his unfair dismissal application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[14] The Applicant submits that he was advised on 3 September 2015 that the Respondent was to cease trading, 13 days prior to his termination taking effect.

This factor weighed against granting the Applicant a further period to make his application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[15] The Applicant did not indicate that he took any action to dispute the dismissal aside from the filing of this application.

[16] This factor weighed against granting the Applicant a further period to make his application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[17] The Respondent did not provide a submission, however, it is clear from the material provided that the Respondent had gone into liquidation/administration.

[18] Prejudice to the employer was a neutral consideration.

Paragraph 394(3)(e) - The merits of the application

[19] In the matter of Kornicki v Telstra-Network Technology Group⁶ the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”⁷

[20] The Commission, as presently constituted, adopted this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[21] It is an accepted practice in jurisdictional hearings that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[22] For present purposes the Commission, as presently constituted, is unable to determine whether the application has merit, therefore, this a neutral consideration.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[23] This application has been made as a result of staff being terminated as a consequence of the liquidation/administration of the Respondent. Eight other staff members have made application to the Commission on the same grounds. This was a neutral factor for consideration.

Conclusion

[24] For the reasons set out above, on balance, in the exercise of my discretion the Commission as presently constituted was not satisfied that there were exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application). An Order to this effect was issued on 13 November 2015.⁸

COMMISSIONER

1 PR573870.

2 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

3 Section 394(3) FW Act.

4 [2011] 203 IR 1

5 Above note at [13].

6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

7 Ibid.

8 PR573870.

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