Christopher Elkes v Altus Traffic Pty Ltd (Victoria)

[2021] FWC 4121

[2021] FWC 4121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Elkes
v
Altus Traffic Pty Ltd (Victoria)
(U2021/5384)

COMMISSIONER BISSETT MELBOURNE, 19 JULY 2021

Application for an unfair dismissal remedy - application out of time – circumstances exceptional – extension of time granted

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

[2] The Applicant’s employment with Altus Traffic Pty Ltd (Victoria) (Respondent) was terminated with effect from 25 May 2021. The unfair dismissal application was lodged on 19 June 2021.

[3] Section 394(2) of the FW 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 15 June 2021. The application was therefore filed 4 days 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] The FW 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

[5] 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.

[6] 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.

Reason for the delay

[7] The FW 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. 3

[8] The Applicant cited several matters as reasons for the delay in lodging the application.

[9] On 1 July 2021 the Applicant submitted a brief statutory declaration which formed his written submissions. In the statutory declaration the Applicant stated the reasons for the delay were that he was experiencing emotional distress within his family due to the termination of his employment. The Applicant also said that due to unforeseen family matters he was late in seeking advice or representation.

[10] In his oral evidence the Applicant expanded on the reasons for the delay in lodging his application. The Applicant submits that he has high-functioning autism and has difficulty remembering certain dates. The Applicant also submits that he is currently engaged in a custody battle which has been ongoing for a number of years. During and following the 21 day period he was required to attend several court dates and appointments with his lawyers which drew his attention away from his unfair dismissal application. The Applicant further submits that he experienced a death in his immediate family in early 2021. The death occurred in England and, because of COVID restrictions, the Applicant had been unable to return to England. This created stressors in dealing with the grief of that loss still present at the time of, and following, his dismissal.

[11] The Applicant said that he had been in touch with his union representative about a week after his dismissal.

[12] I have taken account of the Applicant’s evidence as to the reasons for the delay.

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

[13] The Applicant was notified of the dismissal the day before it took effect and therefore he had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[14] The Applicant gave evidence that he was unaware of what he could do following his dismissal and sought information from a colleague who was his local union delegate. I do not consider this to constitute ‘action to dispute the dismissal’. The Applicant took no other action to dispute his dismissal beyond the making of the application before the Commission.

Prejudice to the employer

[15] I cannot identify any prejudice that would accrue to the company 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

[16] The FW 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 Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time.

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

[17] 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

[18] I am satisfied that the reasons given by the Applicant for the delay in making his application for relief from unfair dismissal together, provide an acceptable or reasonable explanation for the delay.

[19] It is well accepted that a dismissal may create a period of stress in a person’s life and will be unsettling but that this is not, of itself, exceptional or out of the ordinary. However, in the period following his dismissal until he made his application there were a number of matters confronting the Applicant that were, when combined, out of the ordinary and unusual. These include the court dates and meetings with lawyers confronting the Applicant in relation to his custody issues, the death of an immediate family member in England in circumstances where, because of COVID, he could not attend the funeral and his high-functioning autism. Whilst this last matter is not determinative the Applicant relies on it for no more than to help explain his confusion as to dates, further contributing to his delay.

[20] Having regard to the matters I am required to take into account under s 394(3), and on carefully weighing up the circumstances as explained by the Applicant, I am satisfied that the circumstances are exceptional. Because I am satisfied that there are exceptional circumstances, I have decided to extend the time within which the Applicant may make his application for unfair dismissal under s 394(3). An order 4 extending time until 19 June 2021 will be issued with this decision.

COMMISSIONER

Appearances

J. Campbell, for the Applicant
C. Agnew, for the Respondent.

Hearing details:

2021.
Melbourne via video.
14 July 2021.

Printed by authority of the Commonwealth Government Printer

<PR731663>

 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]

 4   PR731687.