Ciaran Ryan v Finney Pty Limited T/A Cutprice Car Rentals

[2020] FWC 1273

[2020] FWC 1273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ciaran Ryan
v
Finney Pty Limited T/A Cutprice Car Rentals
(U2019/9175)

DEPUTY PRESIDENT ASBURY BRISBANE, 26 MARCH 2020

Application for an unfair dismissal remedy - Further period in which to make application sought – Section 394(3) – Consideration of whether there are exceptional circumstances – Commission not satisfied that there were exceptional circumstances taking into account matters in s. 394(3) – Grant of further period refused.

BACKGROUND

[1] This Decision concerns an application by Mr Ciaran Ryan (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Finney Pty Limited T/A Cutprice Car Rentals (the Respondent). The Form F2 Application for an unfair dismissal remedy and the Form F3 Employer response state that Mr Ryan was notified of his dismissal on 25 July 2019 and that it took effect on that date. The application was made on 16 August 2019, one day outside the 21 day time period prescribed in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.

[2] The Respondent objects to the application on the basis that it was made outside the time required in s. 394(2) of the Act and further asserts that Mr Ryan had not completed the minimum employment period as prescribed in s.382 of the Act. No conciliation was held in relation to this matter as the Respondent exercised its right to refuse conciliation prior to the determination of its jurisdictional objections, and the matter was allocated to me for hearing.

[3] Directions were issued requiring the Applicant and the Respondent to file material in relation to whether a further period should be allowed for the application to be made and whether the Applicant had completed the minimum employment period. The matter was listed for Hearing. Mr Ryan represented himself at the Hearing. Cutprice was represented by its Manager Mr Dean King. It is convenient to first consider whether the Applicant has met the minimum employment period and is therefore a person protected from unfair dismissal.

MINIMUM EMPLOYMENT PERIOD

[4] By virtue of s. 382 of the Act, a person is protected from unfair dismissal if the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period. It is not in dispute that the Respondent has 38 employees and accordingly, the minimum employment period is six months as provided in s. 383(a) of the Act. It is also not in dispute that the Applicant is a casual employee. Relevantly, s. 384 provides as follows in relation to period of employment and when casual employment counts towards such period:

“(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

…”

[5] The basis upon which the Respondent asserts that the Applicant did not complete the minimum employment period is that it contends that he was dismissed and re-employed on a number of occasions during the period he worked for the Respondent. According to Mr King, the Applicant commenced employment on 14 December 2018 and was dismissed on 19 December 2018. The Applicant was re-employed on 20 December 2018 and dismissed on 22 January 2019 before being re-employed on 23 January 2019. Mr Ryan was then dismissed on 6 February 2019 and re-employed on 7 February 2019.

[6] The Respondent also provided a number of witness statements from Mr Russell Finnigan, the sole director; Ms Sarah Eighteen, Telephone Sales Manager; Mr Dean King, Manager; Ms Jessica Finnigan Account Manager; and Ms Roberta Goodrich, a Telephone Salesperson. These statements all asserted that Mr Ryan had been dismissed and reemployed at each of the dates outlined above.

[7] Mr King’s evidence was that the Applicant’s employment was only continuous from 7 February 2019 to 25 July 2019. Mr King asserted that his dismissal on each previous occasion was agreed and accepted by the Applicant and that each dismissal was a “definite action” by the Respondent involving the Applicant being escorted from the premises and his personal property removed. Mr King further asserted that on each occasion the Applicant was dismissed, the Director of the Respondent would give him another “final” chance and re-employ the Applicant for a further period of casual employment.

[8] In response to a question from the Applicant in cross-examination, Mr King said that there was no written evidence of the dismissals. Mr King also said that as the dismissals were summary dismissals it was not necessary for the dismissals to be put into writing.

[9] The Applicant produced extensive payslips dating from 20 December 2018 until 24 July 2019. These evidence that the Applicant worked during each week between those dates and that he rarely worked less than 22 hours a week and that on average he worked on average just under 30 hours per week. The Applicant also tendered an employment separation certificate issued by the Respondent. The employment separation certificate was completed by Ms Jessica Finnigan, Office Manager of the Respondent, and states that the Applicant commenced employment on 18 December 2018 and ceased employment on 24 July 2019. The Applicant asserts this material establishes that he has served the minimum employment period.

EXTENSION OF TIME

[10] The Applicant’s Form F2 application was lodged on 16 August 2019 as previously stated. The Form F2 and the Employment Separation Certificate state that the Applicant was informed that he was dismissed on 24 July 2019 and that the dismissal took effect on that date. If 24 July is accepted as the date of dismissal then the application was made two days outside the required time. As previously noted at the hearing and in their submissions, both parties accept that the date of dismissal was 25 July 2019 and accordingly the application was made one day outside the required time. Evidence in relation to the matters relevant to whether a further period should be granted can be summarised as follows.

[11] A series of SMS messages were exchanged between the Applicant and Mr Finnigan which were filed in the Commission initially as an extracted document and later as a collection of some 11 screenshots. The text messages cover the period from 25 July 2019 to 28 July 2019. The text message exchange was as follows:

“25 JULY 2019, NO TIME SPECIFIED

Mr Finnigan:

Average this week $531 an hour over the group excluding you

Why are you not making $500 plus an hour???????

I’ll be doing longer term averages today to get clearer picture of overall performance

33 calls for whole day that is one hours work

Mr Ryan:

I was using multiple phones. Sarah was on my desk, and as usual, driving us all up the wall, which wasn’t fun. Now dates can be great or they can be crap. And international numbers rarely pick up. And you don’t have to tell me it was a shocking week, I could see that myself!

Mr Finnigan:

You should not be using multiple phones for Outbound calls I don’t believe you as the stars don’t add up. To compare Bobbie was on exact dates as you in the morning and out of the 147 enquiries she time stamped 87 of them and she managed to book 10 cars on those dates whereas you times stamped

only 14 enquiries out of the 147 enquiries and booked no cars so even if you were using other people’s phones you still haven’t called all the enquiries on your dates. Really I’m over it your fired

Mr Ryan:

Two words: George Calombaris

Mr Finnigan:

What?

See yah

25 July 2019, 11:22am

Mr Ryan:

Pretty stupid of you to fire someone who could work the phones, work back late, work front desk, do airport runs, clean cars etc, and who for every dollar you paid brought in ten times as much in bookings. Not the sharpest tool in the shed, are you?

Mr Finnigan:

Mate you haven’t been calling your dates despite Sarah constantly trying to tell you to focus on the dates you not doing the job you paid to do. You should have called all the enquiries yesterday like Bobbie did if you did your job properly maybe you would have booked cars yesterday. Your figures are poor.

Really there are better staff who can do much better job even the new girls are already doing better than you in sales figures after a few weeks training. That’s normal. There are many more people out there who can do better. YUour performance simply isn’t good enough. We need more than just someone who can drive the van or wash cars. We need people who will perform at group average or above. 10 times your pay rate isn’t that great when other staff are doing up to 30 times

1. “Work the phones” you are maybe the worse (sic)performer we have

2. “work back late “ what’s the point if your (sic) not actually working calling period I’m paying you to do nothing as I did last night no call after 8 pm at all

3. “Work front desk” had complaint about you on front desk, you are simply not suited to a customer service role

4. “ do airport runs” yes this is one think you can do properly

5. “ clean cars” assume you can do this but haven’t asked around to see if your performance in this area is ok.

6. Your income you make is simply poor compared to the other staff

Office Staff says you make constant mistakes in the front office.

Negative feedback from several staff multiple issues spanning back several months

I could also tell you some home truths too but I would not scoop that low to be honest I just stick to work performance

I’ve actually defended you or overlooked or ignored some personal things said on many occasions

26 July 2019, 8:37am

Mr Finnigan:

If I paid you a couple weeks

Pay would that help resolve things ?

27 July 2019, 12:45pm

Mr Ryan:

It was wise of you to contact me and seek to resolve this amicably. Others in the past haven’t been so smart and have paid dearly for that miscalculation. You see, I’m of the opinion that if you kick me out on the street like a dog (or a “mule” your words), it’s only fair and just that I do the same to you. Others who have tested me on that have seen the full weight of federal agencies come crashing down on them, like Bel, the Varsity Lakes call centre manager who fired me for being sick, and was forced to shut down the entire business a few weeks later when I made good on my promise. The government can be vicious. I’ve thought about this, and for me to feel compensated for my unfair dismissal it’s going to take four weeks pay ($4,000, cash) and for the guys in the shed to fix my car, like they said they would. (Now that you made me unemployed I can’t afford a mechanic.) It’s a pretty good deal and is going to save you a lot of money on legal fees alone. I could ask for a lot more, I know that’s chunk change for a millionaire like you, but I’m a fair man. You do that, and you won’t hear from Fair Work, and the Ombudsman doesn’t come knocking to audit your books. You also won’t hear from me again. I’ll return my keys, I’ll shake your hand, and that will be that.” 1

28 July 2019, 11:55am

Mr Finnigan:

Your not being reasonable. I had offered the two weeks as an act of goodwill not because I believed I am liable or responsible to pay out any money. The reality is that you were well aware of the fact you were at the bottom of the performance chart. You had multiple warnings in this regard yet you failed to really make the effort to rectify this. Every staff member I spoke to said you were constantly wandering around away from your station, you would even disappear away from the premises for periods of time while still clicked on, you simply in my mind must have been bored sitting at your station. The difference can be significant in sales between a person who will sir at their station and just pump out call after call 100 plus calls a shift. You were not that type of person but I persisted with you to give you a chance but you never put in the effort that the others put in which is clearly evident by the number of calls you were making and the number of enquireys time stamped. You needed to probably triple the number of calls you were making. But even if you had of done the 25 an hour you would have got a much better result and you’d still be employed. You were told and warned by Sarah to do this weekly. She said she had to address these sort of things up to 100 times with at least 10 of those times she warned you staff can be fired if your at the bottom of the performance ladder. I personally warned you of the same thing on different occasions. If you had simply just got in and smashed out the calls you would not have been fired. The last day was the final straw when I checked your times stamped enquireys were only 14 for the whole shift which was well over 6 hours. That is only one hours work. I can only go off information provided to me. I have done nothing wrong in firing you. I have staff come to me to tell me you wandering around wasting time and I’m looking at your limited calls and what does that picture look like ? I’m sure you see the others working flat out and the results show. If you worked at the same level you would have substantially increased your figures and I’m surprised considering you were aware of your figures and the other staff figures that you will chose to be in cruise mode. You got your self fired at the end of the day so I can’t see now you can honestly think I have thrown you out onto the curb. You did it not me. It’s a bit delusional really. You must be surely out of touch. You should stop to think yourself if you were the boss and you had an under-performer who was in relax mode not making calls you’d be thinking why are they not trying. You should be on the phones non stop working frantically trying to call as many people as you can to secure your job not wandering around over the place off the phones. The staff said they told you to go back to your booth and they will call you if they need you but you kept leaving your booth and wandered around. Over and above they said you would not listen and were hard to be given instructions or shown things and wanted to just do it your way. Im told you made a lot of errors but still would not listen or take instructions. This feedback combined with your poor phone performance led to your sacking. You were given amply warnings. There really would not be any ombudsman investigation at all here this matter I believe would not even proceed to an audit at all. The agencies are overloaded with complaints and once they receive multiple statements from staff and myself regarding your performance and the warnings you were given this matter will be over. My offer of two weeks pay still stands and is only an act of goodwill to you as I was aware you may have bills to pay. I have no fear of any investigation. I know the ombudsman and fair work are reasonable and would not waste time on this matter once given all the facts. Don’t’ take offense of this email you must try see things from where I am sitting I can’t see it any other way. Let me know your thoughts.

Mr Ryan:

Working frantically, for a measly $25 an hour? Get stuffed. You’re the delusional one.

[12] At the hearing, I asked the Applicant whether he agreed that this was the text message exchange between him and Mr Finnigan on 25 July 2019. In response the Applicant asserted that the text messages were out of sequence, heavily redacted and out of context. The Applicant agreed that the text messages indicated that he knew that he had been dismissed on 25 July 2019 and said that there was no dispute about this. The Applicant did not provide any additional text messages or another version of the text message exchange.

[13] The Applicant said that in relation to the reasons for not filing his unfair dismissal application within the required time, he had attempted to negotiate with Mr Finnigan and accepted that he had sent the text message of 27 July 2019 at 12:45pm. The Applicant accepted that he had decided to negotiate with his employer and that he made a mistake in filing one day late, saying he had filed in good faith believing it was within an appropriate time period and that he must have miscalculated.

[14] The Applicant said that he was under severe financial stress during the period after his dismissal and was focussed on finding other work and not being evicted due to being unable to pay his rent. The Applicant also said that he understood the matter was lodged out of time but considered that an extension should be granted due to the other “high legal issues” in the matter. When I asked the Applicant about these issues he said that they were that he had been unfairly dismissed, an employee being threatened, character assassination, and the fact he believed he had been underpaid and had gone to the Fair Work Ombudsman regarding the underpayment.

[15] Further, the Applicant submitted he was in a state of acute mental distress caused by the financial turmoil resulting from suddenly losing the job which he had relied on for 8 months. Mr Ryan did not provide any medical evidence in this regard. The Applicant also said that he was concerned about the power disparity between himself and Mr Finnigan who he claims is a multi-millionaire who had threatened to smear the Applicant’s character and that this contributed to filing his application outside the required time.

CONSIDERATION

Has the Applicant served the minimum employment period?

[16] I accept Mr King’s evidence and the evidence provided in the various witness statements that the Applicant was terminated on at least three prior occasions before his final dismissal on 25 July 2019. However, it is clear that in each instance the Applicant was reemployed the next day.

[17] The Applicant was a casual employee. As was explained in shortland v Smiths Snackfood Co Ltd 2 each occasion a casual employee is engaged is a separate contract of employment with varying contracts. These may be week to week, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement.

[18] The test for whether casual employment will count towards the minimum employment period is different than that for full time or part time employees. Periods of service as a casual employee do not count towards the minimum employment period unless both of the following conditions are satisfied:

•  the casual employee was employed on a regular and systematic basis, and

•  the casual employee had a reasonable expectation of ongoing employment on a regular and systematic basis. 3

[19] A clear pattern or roster of hours is strong evidence of regular and systematic employment. 4 I am satisfied Mr Ryan was employed on a regular and systematic basis. As stated above, Mr Ryan worked consistently for a period of some 31 weeks where he averaged almost 30 hours of work each week. On that basis, it is also clear that Mr Ryan had a reasonable expectation of ongoing employment on a regular and systematic basis.

[20] I do not accept that the dismissals and subsequent reengagements constituted a break in the continuity of the Applicant’s employment. The Applicant was re-engaged in every occasion and worked the remainder of every week after his dismissal. There were no weeks between the commencement of the Applicant’s employment and the date he was dismissed where the Applicant did not work. I do not accept that the dismissals and re-engagement broke his continuous service.

[21] I therefore am satisfied and find that the Applicant has served the minimum employment period required under s.382 of the Act. The Applicant is a person protected from unfair dismissal and the Respondent’s jurisdictional objection in this regard is dismissed.

Should a further period be granted for filing of the application?

[22] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:

“(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.”

[23] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

•  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

•  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 5

[24] 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. 6

Reasons for the delay – s.394(3)(a)

[25] The Applicant gave the reasons for his delay as:

•  attempting to negotiate a resolution with his former employer;

•  a miscalculation as to when he was required to file the application;

•  financial stress and a focus on finding alternative employment; and

•  mental distress at being dismissed.

[26] A miscalculation of dates or ignorance of timeframes is not an exceptional circumstance. It is not uncommon or unusual for parties to incorrectly count the days from their dismissal. Employees who may be facing financial difficulty are able to apply for a waiver of application fee when filing their application. Payment of the lodgement fee is also independent of lodging the application itself. In Bonnar v Rail Industry Safety & Standards Board, Dean DP found “Nowhere in the Act or the rules does it state that an application is not made until the payment of the fee is received.” 7 There was nothing preventing the Applicant from lodging the application and paying later or filing a waiver form.

[27] While the Applicant states that he was looking for other work during this time, no evidence of this was produced. Further, the Applicant was able to send lengthy text messages to Mr Finnigan after his dismissal. Evidently, the Applicant had the time to write these messages which points to him having the time and ability to complete an unfair dismissal application form. It is also arguable from the content of those text messages that the Applicant had previous experience making applications concerning the termination of his employment and should have known that he had a limited time in which to do so.

[28] It is common for employees to suffer shock and trauma as a result of dismissal from employment and this on its own is not a basis for an extension of time being granted. 8 The Applicant produced no evidence to show that there were any abnormal circumstances which would justify an extension of time.

[29] I do not accept that the Applicant was intimidated by Mr Finnigan’s wealth and that this was an exceptional circumstance. Many, if not most employees, who make unfair dismissal applications have less resources to pursue their claims than employers who are defending such claims and are on an unequal footing in this respect. It is also the case that the Applicant had no apparent concerns about negotiating with Mr Finnigan including making threats about what would happen if Mr Finnigan did not resolve the matter to the Applicant’s satisfaction.

[30] I do not accept that attempting to negotiate with a former employer to avoid making an unfair dismissal application, of itself, constitutes an exceptional circumstance. This is not a case where the employer was misleading or deceptive in the negotiations or misled the Applicant into staying his hand in making the unfair dismissal application with no intention of making reasonable attempts to resolve the matter. To the contrary, Mr Finnigan made an offer of settlement that was half the amount the Applicant sought and did not agree to repair the Applicant’s car. The Applicant responded to that offer on 27 July 2019 telling Mr Finnigan to “get stuffed”. At the conclusion of that exchange on 27 July 2019 the Applicant could not have reasonably believed the matter would be resolved by negotiation and notwithstanding this he waited a further 20 days to file his application – one day too long.

[31] I am not satisfied that any of these reasons individually, or considered together, constitute exceptional circumstances. This weighs against the grant of a further period in which to make the application.

Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)

[32] The Applicant’s original submission by way of email to the Chambers of Vice President Catanzariti was that he did not receive formal notice of termination until 30 July 2019, when he was emailed his separation certificate. Mr Ryan said that prior to this he had only received a text message.

[33] The Applicant further submitted that “[he] was hoping that Mr Finnigan, who offered [the Applicant] two weeks’ pay not to lodge an unfair dismissal application would come to the table with [the Applicant’s] counter offer of four weeks; (he did not).” 9

[34] I consider that the Applicant was aware he had been dismissed on 25 July 2019. The text message from Mr Finnigan is clear and unambiguous, stating “really I’m over it, your [sic] fired.” That the Applicant knew that he was dismissed on 25 July 2019 is also apparent from his Form F2 Application for an unfair dismissal remedy filed on 16 August 2019 which states that he was dismissed on 24 July 2019.

[35] While there are cases where a dismissal via text message may be found to have been unfair there is no rule that this method of communicating a dismissal will automatically result in such a finding. In any event, the present case concerns whether a further period of time in which to make the application should be granted rather than the fairness or otherwise of the dismissal. In relation to whether the Applicant first became aware of the dismissal when it took effect, I am satisfied the relevant date was 25 July 2019. There is no ambiguity in Mr Finnigan’s message. While Mr Finnigan’s dismissal of the Applicant appears to be far from best practice, I am satisfied that it was clearly communicated, and the Applicant was in no doubt that he had been dismissed. The Applicant’s text message in response sent on 25 July 2019 also confirms that he knew he had been dismissed on that date as did his evidence in the hearing in relation to whether a further period in which to make his unfair dismissal application should be granted.

Any action taken by the person to dispute the dismissal – s.394(3)(c)

[36] I am satisfied that the Applicant took steps to dispute his dismissal by sending text messages to Mr Finnigan. Accordingly, the fact that the application was made can have come as no surprise to the Respondent and this is a matter that weighs in favour of granting a further period in which to make the application. or the reasons set out above, these text messages are also evidence that the Applicant was actively considering making an unfair dismissal application and simply miscalculated the time he had to do so.

Prejudice to the employer (including prejudice caused by the delay) – s.394(3)(d)

[37] Prejudice to the employer will go against granting an extension of time. However, the ‘mere absence of prejudice to the employer is an insufficient basis to grant an extension of time’. 10

[38] The Respondent submitted that it would be prejudiced if a further period was granted on the basis that it considers that the Applicant’s case lacks merit. The Respondent also pointed to the time and cost it would be faced with if required to defend the application.

[39] The prejudice suffered by the Respondent is the same prejudice that any Respondent would suffer and there is no prejudice caused by the actual delay that would exacerbate that prejudice. Given the delay was only one day, I am not satisfied there would be prejudice in this case as the delay is not lengthy.

[40] However, I am not satisfied that lack of prejudice is a basis to grant an extension and I consider this factor as neutral in the present case.

The merits of the application – s.394(3)(e)

[41] The Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth) in the matter of Kornicki v Telstra-Network Technology Group 11. 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.” 12

[42] After considering the material filed by the parties, it is clear that there are factual disputes between the parties, especially regarding whether the Applicant was given warnings regarding his performance prior to his dismissal.

[43] I am not satisfied that the application is without merit so that this factor weighs against the grant of a further period. Neither am I satisfied that there is such apparent merit that it weighs in favour of an extension. I consider merit to be a neutral factor in this case.

Fairness as between the person and other persons in a similar position – s.394(3)(f)

[44] It is not clear whether this criteria requires consideration by the Commission of the position of other persons dismissed by the same employer or whether it also contemplates that the Commission consider the position of other persons generally who have sought further periods in which to make applications on similar grounds.

[45] The first approach may be relevant in cases where a number of employees are dismissed at the same time or by the same employer and some of those employees are granted a further period and some are not. The latter approach may require comparison of the circumstances of a particular applicant whose case is being considered by a member of the Commission to be compared with those of applicants in other cases considered by other members of the Commission where a further period is sought on the same or similar grounds.

[46] As discussed above, it is not uncommon for employees to miscalculate dates or to experience stress or anxiety following their dismissal. It is, by nature, a distressing occurrence. Similarly, employees frequently suffer financial hardship following a dismissal. Despite this, many dismissed employees are able to submit their applications within the statutory time frame. There are also many applications where a further period is refused in circumstances similar to those raised by the Applicant in the present case.

[47] This is a neutral factor. There are no other persons employed by the Respondent in the same position as the Applicant. If this consideration requires fairness to be considered on a broader scale, then a refusal to grant a further period in the circumstances of this case will not be inconsistent with other cases where employees have been refused a further period when the reasons for the delay have been similar or the same as those provided in the present case.

CONCLUSION

[48] After weighing each of the matters I am required to consider, I am not satisfied that when they are considered individually or collectively, there are exceptional circumstances taking into account the matters in s. 394(3) of the Act such that the discretion to grant a further period in which to make the applications should be exercised in favour of the Applicant.

[49] Accordingly, the application in U2019/9175 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr Ciaran Ryan on his own behalf as the Applicant

Mr Dean King on behalf of the Respondent

Hearing details:

Brisbane

2019

27 November

Printed by authority of the Commonwealth Government Printer

<PR717359>

 1   Exhibit R2 – text messages between Mr Russell Finnigan and Mr Cierin Ryan

 2   [2010] FWAFB 5709

 3   Bronze Hospitality Pty Ltd v Hansson [2019] FWCFB 1099 (Gostencnik DP, Colman DP, Saunders DP, 20 February 2019)

 4   Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 (30 March 2006) at para. 65, [(2006) 149 IR 399]; cited in Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078 (Roe C, 15 March 2010) at para 7

 5   Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 6   Nulty v Blue Star Group [2011] FWAFB 975

 7   Sarah Bonnar v Rail Industry Safety & Standards Board[2018] FWC 2151

 8   Rose v BMD Constructions Pty Ltd[2011] FWA 673 at [58]

 9   Applicant’s submissions for extension of time titled “Exception Circumstances for 24 Hour extension” dated 22 September 2019 at point (2)

 10   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at pp. 299‒300

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

 12   Ibid