Charlie Mikulich v Multiquip Aggregates Pty Ltd

[2021] FWC 3

[2021] FWC 3

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charlie Mikulich
v
Multiquip Aggregates Pty Ltd
(U2020/14566)

DEPUTY PRESIDENT DEAN SYDNEY, 4 JANUARY 2021

Application for an unfair dismissal remedy – extension of time.

[1] This decision concerns an application made by Mr Charlie Mikulich (the Applicant) pursuant to s 394 of the Fair Work Act 2009 for a remedyin respect of his alleged unfair dismissal by Multiquip Aggregates Pty Ltd (the Respondent).

[2] 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).

[3] The Applicant claims that he was verbally notified of his dismissal on 8 October 2020. The application, received by the Commission on 9 November 2020, was therefore made 11 days outside the 21 day prescribed period.

[4] On 20 November 2020 the Commission sent correspondence to the Applicant advising that the application was not made within the statutory time frame. The Applicant was requested to provide a response or a written statement giving reasons why an extension of time for filing of the application should be granted. The Applicant’s submissions responding to the correspondence was received on 27 November 2020.

[5] The matter was set down for hearing on 12 January 2021. Directions were issued requiring the Applicant to file any additional material in support of the application for an extension of time and for the Respondent to file submission in opposition to the application.

[6] On 10 December 2020 the Respondent, through its representative, advised that it did not oppose the Applicant’s extension of time application and as such would not be filing any material with respect to the issue. In addition, the Respondent filed a form F3 Employer Response which raised a jurisdictional objection on the basis that the Applicant was not dismissed.

[7] In these circumstances I considered the extension of time issue could be determined on the papers without the need for a hearing. Neither party contested this approach. As a result, the hearing was vacated and revised directions were issued.

[8] The Applicant filed additional material on 29 December 2020 in compliance with the directions. No material was filed by the Respondent.

[9] I now turn to consider the extension of time issue.

[10] 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

[11] 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.

Reason for the delay

[12] The Act does not specify what reasons for delay 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

[13] The Applicant’s reason for the delay in lodging the application is primarily his hospitalisation for the entire relevant period. The Applicant said that he was admitted to hospital on 29 September 2020 and had undergone a number of surgeries. He was discharged from hospital on 23 December 2020.

[14] The Applicant said that he learnt of his dismissal on 8 October 2020 when he called the Respondent to inquire about not being paid his weekly wages. Whilst still in hospital, the Applicant attempted to seek advice from an unfair dismissal agent following his alleged dismissal. According to email correspondence provided by the Applicant, he made contact with Employee Dismissal Claims (EDC) on or about 23 October 2020 and after further consultation confirmed that he wished to file an unfair dismissal application. By email of 28 October 2020, Ms Campbell of EDC advised that the Applicant had until 29 October 2020 to file an unfair dismissal claim within the requisite time. The Applicant was told that once he signed the attached terms of engagement, EDC would lodge the application on his behalf.

[15] The Applicant said that he was unable to locate any document to sign by accessing the email on his mobile phone whilst in hospital and advised EDC of this multiple times.

[16] After not hearing anything further from EDC, the Applicant sent email on 6 November to follow up if application has been filed. EDC replied by email later on the same day advising that they did not file the claim given they were not formally retained. The email went on to suggest the Applicant to file the application requesting an extension of time and if extension were granted he could get in touch and be represented by EDC.

[17] I am satisfied on the medical evidence that the Applicant had been hospitalised for the entire period between the date his dismissal took effect and the making of the unfair dismissal application and this contributed to the delay. I am further satisfied that the Applicant’s medical condition and the hospitalisation has generally impacted on his capacity.

[18] Further, he sought to engage ECD to make his application for him, and EDC’s lack of response to his attempts to contact them contributed to this delay.

[19] On that basis, I find that the Applicant has made out an acceptable and credible explanation for the delay in lodging his unfair dismissal application.

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

[20] The Applicant was aware of his dismissal on 8 October 2020 and had the full period of 21 days to lodge the application.

Action taken to dispute the dismissal

[21] The Applicant took no action to dispute his dismissal until this application was lodged.

Prejudice to the employer

[22] 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

[23] The Act requires me to take into account the merits of the application.

[24] There is a dispute as to whether the Applicant had resigned from his employment or he had been dismissed. As a consequence, it is not possible to make any firm or detailed assessment of the merits of the present case.

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

[25] 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.

Conclusion

[26] Having considered all of the matters to which my attention is directed by the Act, I am satisfied that there are exceptional circumstances which would warrant my granting an extension of time.

[27] The Applicant’s extended period of hospitalisation leads me to conclude that exceptional circumstances exist which support extending the prescribed time limit.

[28] Accordingly, an extension of time is granted. An order reflecting this decision will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 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]