Christopher Wayne de Loryn v Pacific National Pty Ltd
[2025] FWC 698
•11 MARCH 2025
| [2025] FWC 698 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Wayne de Loryn
v
Pacific National Pty Ltd
(U2024/15327)
| COMMISSIONER HUNT | BRISBANE, 11 MARCH 2025 |
Application for an unfair dismissal remedy – application made beyond 21-day time limit – Bereavement shortly after dismissal – Long-distance travel to attend funeral – Ignorance of unfair dismissal jurisdiction – Reasons for delay not supportive of extension – No exceptional circumstances – Application dismissed
On 19 December 2024, Mr Christopher de Loryn made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from his employment with Pacific National Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.
Mr de Loryn was dismissed on 12 November 2024. To be within the 21-day time limit to bring an unfair dismissal application, the application needed to have been made by 3 December 2024. The application has therefore been made 16 days out of time. Mr de Loryn seeks an extension of time within which to make his application.
Legislative requirements
Section 394 of the Act states:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
Hearing
Directions were issued, providing the parties with an opportunity to file witness statements and submissions in relation to Mr de Loryn’s application for an extension of time. A hearing was convened by video using Microsoft Teams on 14 February 2025. Mr de Loryn represented himself at the hearing. The Respondent was represented by Ms Rebecca Wolstencroft, Legal Counsel and Mr Jim Georgiades, People and Culture Manager.
Mr de Loryn and Mr Georgiades gave evidence at the hearing and were cross-examined.
Background
Mr de Loryn was employed by the Respondent as a train driver. He had been employed for at least 17 years by the Respondent.
On 20 September 2024, Mr de Loryn was suspended with pay pending an investigation by the Respondent into a safety incident involving a train under his operation which rolled away uncontrolled and derailed at the Townsville freight terminal.
Mr de Loryn and a support person attended a disciplinary meeting on 12 November 2024. Mr de Loryn was asked to show cause as to why his employment should not be terminated. Following the disciplinary meeting, Mr de Loryn was dismissed by the Respondent with payment in lieu of notice.
A copy of Mr de Loryn's termination letter dated 12 November 2024 is reproduced below:
“Dear Wayne
Outcome to request to show cause
We refer to our previous meeting on 24 October 2024, in which you were advised of the Findings in relation to the Letters of Allegation, dated 30 September 2024 and 11 October 2024.
As discussed, based upon the Findings, Pacific National was satisfied that you failed to work in a safe manner and breached a number of Pacific National policies and procedures by:
·failing to secure locomotive PN08, and failing to maintain effective communication with the shunter before detaching, leading to the uncontrolled movement and subsequent derailment of locomotive PN08 at the Townsville Terminal on 20 September 2024;
·reversing locomotive PN03 without ensuring the movement was preceded, creating a significant safety risk and;
·driving locomotive PN03 at double the Townsville yard speed limit (30km/h in a 15 km/h area).
Given the nature of these Findings, you were requested to show cause as to why your ongoing employment should not be terminated. You provided this response on 29 October 2024.
Outcome
Termination of your employment
In forming a view about the appropriate outcome, I have taken into account your response to the Show Cause letter and your work history. While we acknowledge that you have stated you are willing to ensure that procedures are properly followed in future, we consider that due to the severity of the conduct, and the serious and imminent risk to safety that your conduct created, that termination is the most appropriate outcome.
Accordingly, I now confirm the decision to terminate your employment effective on and from today, Tuesday 12 November 2024.
I confirm that you are not required to work out the notice period and a payment in lieu of notice will be paid to you instead. As per clause 25.1 of the Pacific National Intermodal Train Crew Enterprise Agreement 2023, your notice period is five (5) weeks. Your final pay will include any outstanding entitlements, including accrued annual leave and long service leave (if applicable), in accordance with applicable legislation and the agreement that covers your employment.
Confidentiality
I remind you of your obligation, even after employment ends, not to disclose to anyone confidential information about Pacific National and that you remain bound by any obligations in your contract of employment or associated documentation that are expressed to continue after termination of employment.
Next Steps
You are required to return all company property (not limited to keys, access cards, clothing etc) to Pacific National within 2 days of receiving this letter. Please contact Brett Whittle – Operations Supervisor to arrange a suitable time to return this property, and to collect any personal belongings from your worksite.
Thank you for cooperating with us though the investigation process. I, and Pacific National, wish you well in your future endeavours.
Employee Care Service
I also recognise that this may be a difficult time for you, and I want to ensure you are aware that Pacific National’s Employee Care Service, Sonder, is available should you or your family need wellbeing, safety or medical support. You can access the Sonder App on your PN Smartphone or your personal device via SSO. If you’re having issues accessing Sonder, simply email [email protected] and they will help you.
Yours sincerely,
Jim Smith
Superintendent Townsville”
Evidence and submissions of Mr de Loryn
In his Form F2 – Unfair dismissal application, Mr de Loryn acknowledged that he was not lodging his application within the 21-day timeframe. He stated that that he was not aware of the statutory timeframe, had a number of family members pass away recently, was dealing with a possible coercive control situation involving a family member and had received an anxiety diagnosis.
In his statement to the Commission, Mr de Loryn provided an extensive list of events from September 2024 to December 2024 that he claims impacted his ability to lodge his application on time. These events, as put by Mr de Loryn, are as follows:
a. There were many mitigating factors to consider as to why the initial submission was lodged outside of the allotted timeframe.
b. 20/09/24 The index event (Runaway Loco)
c. Immediately placed on suspension
d. Brought on a severe anxiety attacks
e. 24/09/24 Dr appointment for the anxiety issues
f. 30/09/24 1st post incident interview (RDO)
g. 30/9/24 excision of cancerous lesions from L forearm and L neck
h. 05/10/24 infections presented, wounds assessed
i. 09/10/24 wounds assessed again (antibiotics working)
j. 11/10/24 stitches removed from L forearm
k. 11/20/24 2nd post incident interview (RDO)
l. 19/10 excision of cancerous lesion from L neck, stitches removed from L neck
m. 24/10/24 3rd post incident interview (RDO)
n. 25/10/24 Mother in Law gravely ill – commenced shifts at MiL’s beside vigil at Care facility
o. 26/10/24 excision of cancerous lesion cancelled
p. 29/10/24 stitches removed from L neck
q. 29/10/24 Mother in Law passed away at 1530 hrs
r. 01/11/24 biopsy from R nose
s. 03/11/24 picked up Melbourne relatives from Townsville airport
t. 04/11/24 excision of cancerous lesion from R nose
u. 05/11/24 Funeral for Mother in Law in Townsville
v. 07/11/24 delivered Melbourne relatives to Townsville airport
w. 12/11/24 immediate dismissal from PN
x. 14/11/24 stitches removed from R nose
y. 14/11/24 Returned all PN property
z. 15/11/24 Drove 400 km to Cairns for ailing Mum
aa. 15/11/24 commenced shifts for bedside vigil at Care facility
bb. 19/11/24 Mother passed away
cc. 20/11/24 commenced arrangements for Mum’s funeral
dd. 25/11/24 picked up Victorian relatives from Airport
ee. 27/11/24 Mother’s funeral at 1330 hrs in Edmonton, Cairns
ff. 29/11/24 delivered Victorian relatives to Cairns airport
gg. 02/12/24 attended probate meeting in Cairns (all three siblings to be present)
hh. 03/12/24 attended lawyers with Father in Law in Cairns
ii. 03/12/24 final date for submissions of unfair dismissal claim (21 days after dismissal)
jj. 04/12/24 load removal truck at Cairns
kk. 05/12/24 drive 400 km back to Townsville
ll. 06/12/24 unload removal truck contents into storage facility at Townsville
mm. 08/12/24 drive 400 km removal truck back to Cairns
nn. 09/12/24 drive back 400 km from Cairns to Townsville
oo. 10/12/24 excision of cancerous lesion from R shin
pp. 16/12/24 retrieve personal files from PN internet access through Supervisor
qq. 19/12/24 reminded by ex-work colleague of 21-day deadline for submissions of unfair dismissal claim
rr. 19/12/24 submitted unfair dismissal claim online – ref QQWHVA.
Mr de Loryn provided evidence of medical appointments he attended on the following dates:
· 24 September 2024;
· 30 September 2024;
· 5 October 2024;
· 9 October 2024;
· 11 October 2024;
· 19 October 2024;
· 26 October 2024;
· 29 October 2024;
· 1 November 2024;
· 4 November 2024;
· 13 November 2024;
· 10 December 2024; and
· 24 December 2024.
Further, Mr de Loryn provided a copy of an independent medico-legal report, dated 13 February 2014. The report was sought by WorkCover Queensland after an incident involving Mr de Loryn which occurred on 22 July 2011. In this incident, Mr de Loryn drove a train beyond a red signal because, in his words, he was “planning the day ahead”. He expected that the signal would be yellow, and he would be able to drive the train into the depot. At this time, he was in the position of Operations Supervisor. Following the incident, Mr de Loryn stated he became very anxious as he believed his employment may be threatened. In the latter part of 2013, his role was reduced from Operations Supervisor to Driver. The report indicated that there was no psychiatric reason why Mr de Loryn could not return to work as a train driver, and his prescription of duloxetine and treatment from a clinical psychologist were appropriate for his work-related condition.
Mr de Loryn submitted that had he been aware of the timeframe for making his application or had not been suffering from skin cancer and the circumstances described above, he would have lodged his application in time. Instead, he submitted that he needed to prioritise his physical and mental health.
Mr de Loryn submitted that he did not question his dismissal once he was informed, as he was “gobsmacked” and “unaware of any words for the occasion”.
In evidence given during the hearing, Mr de Loryn stated that he did not know that a dismissal could be contested. He had heard of unfair dismissal but stated that he had no idea of the process. It wasn’t until he spoke with a former colleague on 19 December 2024 and was informed of the ability to bring an unfair dismissal claim that he went to a computer and investigated bringing a claim, discussed it with his wife and then spent approximately 45 minutes making the claim and lodging it.
In evidence given during the hearing, Mr de Loryn stated that he is a member of the Australian Rail, Tram and Bus Industry Union (RTBU). He said following the dismissal he held discussions with an officer of the RTBU, but making a claim for unfair dismissal was not discussed. He stated that he has found the union to be lacking, at times.
In relation to being on-site on 16 December 2024 to retrieve files whilst in the presence of his Supervisor, he was there for approximately 1.5 hours.
He submitted that there would be no prejudice to the Respondent if he were granted an extension of time.
In relation to the merits of the application, Mr de Loryn submitted that the incident on 20 September 2024 was caused by the Terminal Operator’s failure to properly secure the locomotive and advise Mr de Loryn that electrical jumper cables were connected between locomotives and that the air brake had been manually detached. Mr de Loryn submitted that he was relying on the Terminal Operator to advise him of this information, as he was on the locomotive at the time and could not see if these steps had been undertaken.
The Respondent referred to a memo from July 2024 outlining a change of practice whereby the relevant driver was now required to secure the brakes of a detached locomotive. Mr de Loryn contended that this memo was not circulated as a procedural change in the normal manner, and he was therefore unaware that there had been a change of procedure.
Mr de Loryn stated that there have been occasions where other drivers employed by the Respondent have operated locomotives beyond the limits of their authority, or in an unsafe manner, but have not been dismissed.
Evidence of Mr Georgiades
Mr Georgiades is employed by the Respondent as a People and Culture Business Partner.
On or around 20 September 2024, Mr Georgiades was informed that Mr de Loryn had been stood down due to a serious safety incident. He reviewed Mr de Loryn’s suspension letter, which was prepared by Mr Brett Whittle, Operations Supervisor – Townsville. Mr Georgiades and Mr Whittle then met with Mr de Loryn on 30 September 2024 and provided him with a letter of allegation relating to the incident.
On 11 October 2024, upon reviewing Mr de Loryn’s responses to the letter of allegation, Mr Georgiades learned that immediately prior to the incident, Mr de Loryn had operated the locomotive at twice the speed limit. A further letter of allegation was then provided to Mr de Loryn. Mr de Loryn provided a written and verbal response.
Mr Georgiades and Mr Whittle met with Mr de Loryn on 24 October 2024, to confirm that the disciplinary outcome was that Mr de Loryn would be required to show cause as to why his employment should not be terminated. Mr de Loryn provided a written response on 29 October 2024.
The Respondent arranged a meeting on 7 November 2024 with Mr de Loryn. Due to his mother-in-law’s passing, Mr de Loryn requested a postponement of the meeting. This was granted, and the meeting was rescheduled to 12 November 2024. Mr de Loryn was invited to provide a further verbal response to the show cause in addition to the written response he had already provided.
At the meeting on 12 November 2024, Mr de Loryn was advised that his employment would be terminated upon payment in lieu of notice, and he was provided a letter of termination by hand.
Mr Georgiades stated that he was aware that Mr de Loryn had accessed one day of personal leave to attend the funeral for his mother-in-law’s passing on 5 November 2024, and another part-day absence for medical treatment to remove skin cancer.
Following the dismissal, Mr de Loryn sent written correspondence to Mr Georgiades, Mr Whittle and Mr Jim Smith, Acting Regional Manager regarding the retrieval of personal files from the Respondent’s computer systems. Mr de Loryn also noted on 10 December 2024 that the Respondent had not provided him with a separation certificate despite repeated requests. This issue was also raised during the hearing, and the Respondent confirmed that it had provided Mr de Loryn with a separation certificate on 11 December 2024. Following the hearing, the Respondent provided a copy of the certificate to my chambers and Mr de Loryn and confirmed that a hard copy would be posted to Mr de Loryn’s address.
Respondent’s submissions
The Respondent submitted that Mr de Loryn contends that the three circumstances relied upon by Mr de Loryn in his application for an extension of time are his ignorance of the timeframe for lodgement, bereavement as a result of the passing of his mother, and personal illness. The Respondent submitted that the events referred to by Mr de Loryn both before and after the 21-day timeframe ought not be taken into consideration.
The Respondent noted that Mr de Loryn took no action to dispute his dismissal until reminded by a work colleague of the timeframe for lodgement for an unfair dismissal application on 19 December 2024. The Respondent submitted that ignorance of the timeframe to file an application is not an exceptional circumstance.
Acknowledging the medical evidence and timeline of family events provided by Mr de Loryn, the Respondent submitted that Mr de Loryn has not provided any evidence to support that his ill-health or any other circumstance affected his capacity to file an unfair dismissal application. The Respondent noted that Mr de Loryn had been dealing with the ill-health of relatives and himself during his employment and remained able to attend work despite this. Moreover, the Respondent submitted that the fact that Mr de Loryn continued to be in contact with the Respondent following his dismissal demonstrated that he knew he had been dismissed and had capacity to file an unfair dismissal application.
The Respondent submitted that Mr de Loryn was informed of his dismissal by the Respondent during the show cause meeting on 12 November 2024 and he has demonstrated that he was aware that his dismissal took effect at this time.
In respect of Mr de Loryn’s failure to dispute the dismissal prior to 19 December 2024, the Respondent submitted that its actions did not prevent Mr de Loryn from doing so. Instead, the Respondent noted that it arranged for Mr de Loryn to continue to have access to IT systems and to purchase his work mobile phone.
The Respondent submitted that having to respond to an unfair dismissal made 16 days out of time causes it prejudice in circumstances where Mr de Loryn made no attempt to challenge the decision to terminate his employment.
The Respondent acknowledged that Mr de Loryn’s application is not without merit, though the material filed to date demonstrates that there was a valid reason for Mr de Loryn’s dismissal, and he was afforded procedural fairness throughout the disciplinary process. The Respondent argued that the merits of the application should therefore be given little weight by the Commission in determining whether to grant an extension of time.
The Respondent submitted that the Commission should not grant an extension of time to Mr de Loryn, as it has refused to do so in similar matters, including Rose v BMD Constructions Pty Ltd,[1] where an extension was refused where the applicant suffered personal illness as a result of the dismissal and was ignorant of the timeframe, and Muir McKeen v Action Industrial Catering Pty Ltd,[2] where the applicant suffered personal illness and was hospitalised for 6 days.
Applicable case law
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd,[3] where the Full Bench said:
“[10] It is convenient to deal first with the meaning of the expression ‘exceptional circumstances’ in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression ‘exceptional circumstances’ in s.394(3) and held:
‘[5] The word ‘exceptional’ is relevantly defined in The Macquarie Dictionary as “formatting an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression ‘exceptional circumstances’ was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
‘23. I am of opinion that the expression “exceptional circumstances” requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
“Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.”
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25 And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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” in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.’
[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.” [footnotes omitted].
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmon Oysters,[4]
a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[5] stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:[6]
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.” [emphasis in original]
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[7]
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[8]
Consideration
The reason for delay – s.394(3)(a)
The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[9] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[10]
A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[11] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[12]
While Mr de Loryn experienced a significant loss with his mother’s passing shortly after he was dismissed, together with the associated long-distance travel, the substantive reason for the delay is Mr de Loryn’s ignorance of the unfair dismissal jurisdiction. It was not until a former colleague asked him on 19 December 2024 if he had made a claim that he learned about the jurisdiction.
Following his dismissal, Mr de Loryn spoke with his RTBU representative. His evidence is that he did not learn about the jurisdiction at that time.
The reasons for the delay provided are, in my view, not reasons that are supportive of an extension of time being granted.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
Mr de Loryn became aware of the dismissal on the day it took effect. I consider this to be a neutral factor in the determination of whether there are exceptional circumstances.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[13]
Mr de Loryn met with his former Supervisor on 16 December 2024 for approximately 1.5 hours to obtain personal material from the computer he had used. There is no evidence before the Commission that Mr de Loryn took any action to dispute the dismissal.
I consider this to be a neutral factor in the determination of whether there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay) – s.394(3)(d)
I do not consider that there would be any prejudice to the Respondent caused by the delay in bringing the application. I consider this to be a neutral factor in the determination of whether there are exceptional circumstances.
The merits of the application – s.394(3)(e)
In the matter of Kornicki v Telstra-Network Technology Group,[14] the Commission considered the principles applicable to the exercise the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996. In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”
The merits of the application deal with a serious safety incident. There is a contest between the parties that is not capable of being resolved at this time, nor is it desirable or required for me to do so. I do not regard either case as being highly meritorious or highly unmeritorious.
My consideration of the parties’ respective merits is that this is a neutral factor in the determination of whether there are exceptional circumstances.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
The criterion of “fairness as between the person and other persons in a similar position” was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[15] where it was said:
“...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
I am not satisfied that the criterion of fairness between Mr de Loryn and other persons in a similar position weigh strongly in favour of either party. As such, I consider it a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s.394(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Whilst noting that Mr de Loryn was dealing with his mother’s passing shortly after the dismissal, taking into account all of the circumstances, and noting that Mr de Loryn’s ignorance of the jurisdiction was the substantive reason why he did not bring his application within time, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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(2).
Accordingly, the application must be dismissed. An order [PR785093] will be issued with this decision.
COMMISSIONER
Appearances:
CW de Loryn, the Applicant
R Wolstencroft and J Georgiades for the Respondent.
Hearing details:
2025.
Video using Microsoft Teams.
14 February.
[1] [2011] FWA 673.
[2] [2012] FWAFB 5933.
[3] [2011] FWAFB 975.
[4] [2018] FWCFB 975.
[5] (2010) 197 IR 403 at [16]–[18].
[6] [2018] FWCFB 901 at [38].
[7] Smith v Canning Division of General Practice [2009] AIRC 959.
[8] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[9] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]-[45].
[11] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.
[12] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[14] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[15] [2015] FWC 8885 at [29].
Printed by authority of the Commonwealth Government Printer
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