Cory Fletcher v Scitech Discovery Centre

[2018] FWC 7017

[2018] FWC 7017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cory Fletcher
v
Scitech Discovery Centre
(U2018/6227)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 15 NOVEMBER 2018

Application for an unfair dismissal remedy – effective date of dismissal – extension of time.

[1] On 17 June 2018, Mr Cory Fletcher (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to the application is Scitech Discovery Centre (Respondent) (Scitech). Mr Fletcher commenced employment with Scitech on 12 January 2016 as a casual Science Presenter. He says that his employment came to an end on 7 June 2018.

[2] Scitech objected to Mr Fletcher’s application on the grounds that it was lodged out of time and that Mr Fletcher had not met the minimum employment period as he was a casual employee who was not employed to work on a regular and systematic basis. They also submitted that Mr Fletcher ceased his employment by way of resignation which took effect on 2 March 2018.

Preliminary matters

[3] This matter was conciliated on 16 July 2018 and remained unresolved. Consequently, the matter was referred to me to determine the threshold jurisdictional objections raised by the Scitech. Scitech’s objection that Mr Fletcher was not dismissed is an objection to be considered with the merits of the application in the event that the Respondent’s other jurisdictional objections are dismissed.

[4] Mr Fletcher was represented by Jude McCulloch of the CPSU, the Community and Public Sector Union. I granted permission for Scitech to be represented by Mr Warren Milward of Counsel as I was satisfied the matter was sufficiently complex.

[5] At the commencement of the hearing Scitech advised that they were not pressing their objection that Mr Fletcher had not been employed on a regular and systematic basis. Accordingly, the matters for me to consider are the effective date of Mr Fletcher’s dismissal, whether an extension of time is required and, if so, whether the Commission should grant a further period for the lodgement of Mr Fletcher’s application.

Effective date of dismissal

[6] Scitech submitted that during a meeting on 23 October 2017 Mr Fletcher advised he was returning to full time study in 2018 and therefore would not be able to meet the requirements of his position. Scitech in response confirmed that he would not be able to continue working in his position.

[7] On 1 February 2018 Mr Fletcher sent an email to the Respondents seeking to withdraw his resignation. Scitech submitted that Mr Fletcher’s resignation had been accepted in the meeting of 23 October 2017 and an employee cannot unilaterally withdraw a resignation which has been accepted by an employer. 1

[8] Scitech’s submission was that Mr Fletcher undertook his final shift of work for the Respondent on 2 March 2018, and that as a casual employee his employment could only continue beyond that date if he had a reasonable expectation of continuing employment on a regular and systematic basis. They submitted there was no reasonable basis for Mr Fletcher to hold such an expectation based on the conduct of both Mr Fletcher and Scitech in the period leading up to his withdrawal of the resignation, Scitech’s response to this withdrawal, the lack of shifts offered to Mr Fletcher and the subsequent conduct of Mr Fletcher in failing to take steps to meet with Scitech after their correspondence on 2 February 2018. 2

[9] Scitech submitted that even if Mr Fletcher was considered not to have resigned from his employment it is untenable for him to assert that he had a reasonable expectation of ongoing employment on a regular and systematic basis after 20 February 2018, with the result that his employment should be considered to have ceased on 2 March 2018. 3 In the alternative, they submitted that even if Mr Fletcher had such an expectation, the actions of Scitech in not rostering Mr Fletcher to perform any further work after 2 March 2018 had the effect, given that he was employed on a casual basis, of terminating the employment relationship.4

[10] Mr Fletcher’s submission was that he had advised Scitech in October of 2017 that he would be returning to full time study in 2018 and therefore his availability would be reduced. He submitted that Scitech advised his reduced availability meant he would have to resign his position as they required full time availability. 5 In late January 2018 Mr Fletcher discovered that other staff were engaged in full time study whilst still working as presenters and informed Scitech that he would not be resigning as clearly it was possible for him to continue working as a Science Presenter and carry out his full time study.6

[11] Mr Fletcher’s submission was that on 7 June 2018 he received a letter from Scitech, dated 28 May 2018, notifying him that his employment had ended on 12 March 2018. He submitted that as he did not resign, and Scitech notified him of the end of the employment relationship on 7 June 2018, this was his effective date of dismissal. 7

[12] In a later submission Mr Fletcher stated that the understanding between the parties until 31 January 2018 was that he would no longer be employed as an Outreach Presenter from the end of February 2018 and alternative employment with Scitech would be available. However, when Mr Fletcher discovered that there were other staff studying full time and had been rostered as Outreach Presenters for 2018, he contacted the Respondent to clarify that he did not intend to resign. 8

Evidence of Emma Lomas

[13] Ms Lomas was the Statewide Engagement Manager at the Respondent at the time of Mr Fletcher’s dismissal. As part of the Respondent’s service delivery, regional tours are conducted where the Science Presenters spend about three weeks on the road travelling to different schools and communities bringing presentations to children who do not have the same opportunity to attend the Scitech Discovery Centre. 9

[14] Ms Lomas’ evidence was that on 23 October 2017 she had a meeting with Mr Fletcher in which he advised that he would be commencing full time study in 2018. She submitted he advised her that due to his full time studies he would not be able to meet the availability requirements of the role and would need to cease employment. 10

[15] Ms Lomas gave evidence that she and Mr Fletcher talked through an exit strategy and submitted that she discussed with Mr Fletcher his availability for work between December and the start of university in March 2018. She submitted Mr Fletcher confirmed that he would like to continue to work through the holiday period. 11

[16] Ms Lomas gave further evidence that she suggested exploring the availability of work within Scitech in the Discovery Centre, as the Discovery Centre had a greater capacity to engage Science Presenters on a more flexible work arrangement. Ms Lomas advised she would arrange contact between Mr Fletcher and the staff member responsible for rostering at the Centre to see what could be arranged, however despite that introduction Mr Fletcher never made contact with said staff member or provided availability information to allow him to be considered for the role. 12

[17] Ms Lomas’ evidence was that whilst there was no agreement on a final day of work, it was understood that Mr Fletcher would be finishing with Scitech sometime shortly after his last regional tour in late February or early March. She advised that she did not ask Mr Fletcher for a written resignation as she did not believe that one was required.  13 Ms Lomas’ evidence was that she understood Mr Fletcher had resigned verbally and that she would confirm his end date in writing closer to the time his employment was to come to an end.

[18] On 16 January 2018, Ms Lomas sent an email to Mr Fletcher to confirm that he was finishing up at the end of February and that, whilst he was not required to attend upcoming scheduled training for Science Presenters, he would be paid to attend two of the sessions across the three days they were scheduled and was welcome to attend the rest of the sessions on his own time. Her email also sought a meeting with Mr Fletcher to confirm his final day of work and to catch up regarding his potential work at the Discovery Centre. Mr Fletcher responded to her email that same day confirming his tour, attendance at the training sessions and interest in working in other parts of Scitech. 14

[19] Ms Lomas submitted that she had a conversation with Mr Fletcher on 31 January 2018 in which he raised that there were other staff working for Scitech who were studying or not available full time. She agreed with Mr Fletcher that Scitech did have some flexibility however that the engagement of those employees was not the same as his and Scitech’s capacity to provide flexible hours had been exhausted. Her evidence was that at no point during their conversation did Mr Fletcher advise that he did not want to resign. 15

[20] Ms Lomas then had a discussion with her manager, Mr Wood, regarding her conversation with Mr Fletcher. She submitted that they agreed that they could not facilitate work for Mr Fletcher and were not going to take any steps to keep Mr Fletcher as a Science Presenter beyond his last tour and any work he was able to perform prior to commencing his full time study. 16

[21] On 1 February 2018, Ms Lomas, Mr Wood and HR Manager Ms Kirrily Wesley received an email from Mr Fletcher stating that he did not intend to resign. On 2 February 2018, Mr Wood replied to Mr Fletcher confirming Scitech’s understanding that Mr Fletcher had resigned and that the organisation had acted consistently with that resignation. Mr Fletcher was invited to meet with Mr Wood to discuss the potential for other work. Ms Lomas’ evidence was that as far as she was aware Mr Fletcher did not follow up on this opportunity. 17

Evidence of Mr Fletcher

[22] Mr Fletcher’s evidence was that in October of 2017 he met with Ms Lomas and informed her that he had taken up full time study. His recollection of the events was that Ms Lomas advised him that he would not be able to continue in the position of Outreach Presenter from the beginning of Semester 1 2018. Mr Fletcher’s evidence in cross-examination was that during the October meeting he had discussed a possible tour in early 2018 as that would be a good way for him to finish his employment, and discussed the prospects of future work within a different role and team.

[23] He submitted that he had raised with Ms Lomas that previous and current staff had and were undertaking full time study whilst working in the same position as himself, to which she responded that whilst that had occurred in the past it would not be the case from 2018 onwards. His evidence was that his response to Ms Lomas’ statement was that they would cross that bridge when they came to it. 18 However during cross-examination Mr Fletcher conceded that the outcome of the October meeting with Ms Lomas was an understanding that he would not be continuing in his role as a casual Science Presenter and Ms Lomas would look into other opportunities for Mr Fletcher.

[24] He submitted that at the time he received Ms Lomas’ email on 16 January 2018 seeking to confirm his end date he had never confirmed his intent to resign. He submitted that at no point did he expressly agree, either verbally or in writing, to resign from his employment with Scitech. 19

[25] During cross-examination it was put to Mr Fletcher that he had filed the 16 January 2018 email from Ms Lomas however had intentionally not submitted his email in response. The 16 January 2018 email from Ms Lomas stated as follows;

“Hi Cory!

I am just about to send out the timetable for Tweek this year, and wanted to touch base on a few things with you.

As you will be finishing up at the end of February to start your exciting journey in teaching, Tweek will be voluntary attendance for you. This means you are more than welcome to attend all or a selection of the sessions on your own time. In saying that, we would love your (paid) presence at the Tech Show update on the Wednesday arvo and the Facilitation workshop on the Thursday morning. Let me know if this suits

You are rostered on to the Busso Science Tour as a final hurrah with Jess Scholle and a newbie to pass on all the knowledge (EoS and M&M) – just wanted to confirm this suits your plans? It’s roughly a week and a half rather than the full two weeks.

Let me know if you are able to pop up to the office any time this or next week for a face to face catch up about all of the above – I know it’s hard with the parking during the holidays and having to leave straight from program but would be good to squeeze in a time. Can you let me know if you could make tomorrow, Thursday, or Friday after program? I would also love to confirm your end date with Statewide, and make sure we’ve discussed all Scitech options for your future”

[26] Mr Fletcher’s reply of the same date states;

“Hey Em,

The Busselton EoS and M&M tour sounds good to me!

Congratulations on the impending motherhood!! You’ll be a good parent, I think. You have a good temperament and patience level for it ;) (sorry I really don’t mean that to sound patronising, just encouraging)!

That’s a yes from me for Wednesday afternoon and Thursday morning at TWEEK.

Also (as we briefly talked about), I would really appreciate you touching base with Jane/Bel about a potential ad hoc role in the Science Squad, i.e. a weekend or weekday shift every fortnight or so, or more if they require. I’d just really like to stay on in some capacity! So thanks in advance for that.

And Friday afternoon works for me

Catch you then.” 20

[27] Mr Fletcher was evasive in his responses as to why he did not file the email in which he responded to Ms Lomas. Eventually Mr Fletcher submitted that he did not file the email because he was of the opinion it was not important.

[28] Mr Fletcher gave evidence that on 1 February 2018 he withdrew any previous understanding of his proposed resignation by stating to Scitech in writing that he had no intention of resigning, however the Scitech did not subsequently offer him any shifts for the months of March and April despite him providing them with near full time availability. 21

[29] He submitted that he continuously queried the Scitech in writing as to why he was not receiving shifts, with the Scitech at times taking almost a month to respond. Further, he gave evidence that the Scitech did not request the return of his keys or uniform. 22

[30] Mr Fletcher’s evidence was that he was notified of his dismissal in a letter dated 28 May 2018, which he received and read on 7 June 2018. 23

Consideration regarding effective date of dismissal

[31] It was common ground between the parties that Mr Fletcher had enrolled to return to full time study and was due to commence in the first semester in 2018. Mr Fletcher’s evidence was that he began his full time studies in his Graduate Diploma of Teaching in March 2018. The Graduate Diploma of Teaching was to include a series of placements during semester 1 which, along with Mr Fletcher’s full time studies, would have impeded his capacity to fulfil his full time role at Scitech. Subsequent to enrolling to return to full time studies he met with Ms Lomas and informed her of his situation. There is contention between the parties as to the events that followed, however it is Mr Fletcher’s evidence that at the end of the meeting with Ms Lomas there was a mutual understanding that he would no longer be employed as a casual Science Presenter.

[32] There were no further discussions regarding his employment until Ms Lomas sent Mr Fletcher the email extracted above on 16 January 2018. This email clearly sets out that Ms Lomas was of the understanding that Mr Fletcher would be ceasing employment as a casual employee at the end of the February roster prior to the commencement of his university studies.

[33] Mr Fletcher’s response, which he did not file with his materials, indicates that Mr Fletcher shared this understanding. The email is clearly relevant as it provides further evidence as to the factual chain of events that ensued after Mr Fletcher had informed Ms Lomas that he was returning to full time study and supports Ms Lomas evidence that there was a mutual understanding that Mr Fletcher at that time had expressed that he would not be continuing in his role once he commenced study.

[34] Whilst Mr Fletcher may have had an expectation of taking up a new “ad hoc” role it is clear from the correspondence Mr Fletcher had accepted that he would be finishing in his current role at the end of his February roster. Mr Fletcher attended a training session in January and became aware of other students who had continued working in their roles with Scitech. It was not until sometime after the attendance at the conference that Mr Fletcher began to consider that he should be able to continue in his employment and proceeded in an attempt to reverse the situation, firstly by retracting an understanding that he would no longer be working with Scitech and subsequently by providing availability for a role he was aware he could not fulfil.

[35] One of Mr Fletcher’s written submissions supported this chain of events. That submission provided as follows:

“21. The understanding between the parties until the 31st January 2018 was that the Applicant would no longer be employed as an Outreach Presenter from about the end of February 2018; however the evidence shows that the parties understood that alternative employment with the Respondent would be available.

22. The understanding that the Applicant would no longer be employed as a Outreach Presenter was based on the information provided by the Respondent to the Applicant that those staff engaged in full time study or who were not available full time would not be employed in this role in 2018 and that his full time study would preclude him from this role.

23. When the Applicant discovered that at least four other staff who were either studying full time or who did not have full time availability were being rostered as Outreach Presenters for 2018, he immediately contacted the Respondent to initially query this and then clarify that he did not intend to resign.” 24

[36] Mr Fletcher had attempted to construct his submissions and evidence during the hearing to tell a story that suited his purpose however I consider that the evidence does not support Mr Fletcher’s narrative.

[37] The email from Mr Wood on 2 February 2018 confirms that Scitech had progressed with an understanding that Mr Fletcher would not be able to fulfil the inherent requirements of the role and offered Mr Fletcher an opportunity to sit down and clarify their respective positions and plan a way forward. There is no evidence before me that any such meeting took place.

[38] I am satisfied Mr Fletcher’s employment as a casual Science Presenter with the Respondent ceased at the end of his last rostered assignment which he completed on 2 March 2018. Mr Fletcher at that time had not been provided with any future rosters nor had he been guaranteed any future ongoing work. Without making a finding as to whether Mr Fletcher resigned or was dismissed by the Respondent, I consider that he could not have had a reasonable expectation of ongoing employment from 2 March 2018. Accordingly, Mr Fletcher’s application was lodged 86 days out of time.

Legislative Scheme

[39] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[40] Section 394(3) of the Act provides as follows:

“394 Application for unfair dismissal remedy

…

(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.”

[41] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 25where the Full Bench said:

“[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.” [Endnotes not reproduced]

[42] The onus of establishing exceptional circumstances is on the Applicant. 26

[43] This point was emphasised by the Full Bench in the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 27 which contained the following statement:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

“[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …” (emphasis added)

[30] This extract must be read in its entirety. The decision goes on to state:

“[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.”

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

Matters to be taken into account pursuant to s.394(3)

[44] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

s.394(3)(a) the reason for the delay

[45] Scitech submitted that Mr Fletcher had provided no reason for the delay beyond his assertion that their letter dated 28 May 2018 confirming their position that his employment had ceased on 12 March 2018 was not received until 7 June 2018. 28

[46] They submitted that as of 7 June 2018 at the latest, Mr Fletcher was aware that he had not performed any work for the Respondent in over three months and that his employment had come to an end. Despite this, Scitech submitted that Mr Fletcher had not explained why it then took him a further ten days to lodge his application. 29

[47] Mr Fletcher’s submission on the reason for the delay was that his application was not made out of time. He submitted that as he did not resign, and Scitech notified him of the end of the employment relationship on 7 June 2018, there was no need for an extension of time to be granted. 30

[48] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances. 31

[49] I have determined that Mr Fletcher’s employment with Scitech came to an end as of 2 March 2018. Mr Fletcher received an email from Mr Wood on 2 February 2018 confirming that Scitech had progressed with an understanding that Mr Fletcher would not be able to fulfil his requirement for the role 32 and was not been rostered to work subsequent to that email. There is no evidence before me to suggest Mr Fletcher had taken any steps to query why this was the case prior to his email of 4 April 201833, thus leading me to a conclusion that he was well aware that his employment had come to an end prior to the 7 June 2018.

[50] Further, once Mr Fletcher received this letter it took him 10 additional days before he lodged his application despite the Respondent stating in this letter that, as he was paid up to 11 March 2018, they would view his employment as having ended on 12 March 2018 34. Mr Fletcher has failed to provide reasons as to why there was a further delay in lodging his application other than his submission that the application was not lodged out of time. I am not satisfied the reasons provided by the Applicant constitute an acceptable reason for the delay. This weighs against a finding of exceptional circumstances.

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

[51] Scitech submitted that it should have been readily apparent to Mr Fletcher from 16 January 2018, when he received an email referring to him ceasing work, and 2 February 2018, when he received an email in response to his unilateral withdrawal of his resignation, that the Respondent considered that Mr Fletcher’s employment was ending. 35

[52] Further, they submitted that it should have been apparent to Mr Fletcher by not later than 20 February 2018, when their March roster was issued, that he was no longer being allocated work within their organisation in the position of Science Presenter, Outreach Program. 36

[53] I am satisfied that Mr Fletcher had become aware by an email from Ms Lomas on the 16 January 2018 that his employment would no longer continue with Scitech at the completion of his February 2018 roster. Despite his attempt to unilaterally withdraw his resignation, it was clear from the Respondent’s correspondence of 2 February 2018 that they had progressed with an understanding that he would not be continuing in his employment.

[54] Mr Fletcher therefore had the full 21 days from the date his employment came to an end to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[55] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 37

[56] Scitech submitted that the only action taken by Mr Fletcher to dispute his dismissal was to send an email to the Respondent in April querying why he had not been rostered for any shifts during March and April. They submitted that Mr Fletcher did not take any steps to arrange a meeting with the Respondent despite an invitation to do so in response to his purported unilateral withdrawal of his resignation. 38

[57] Mr Fletcher was provided with an opportunity to discuss the circumstances surrounding the cessation of his employment with Mr Wood on 2 February 2018. Mr Fletcher has been unable to satisfy me that he took action to contest Mr Wood’s refusal to accept Mr Fletcher’s attempt to withdraw his resignation or his pending cessation of employment prior to the query he made in April 2018. This factor weighs against the granting of an extension of time.

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

[58] Prejudice to the employer will go against the granting of an extension of time. 39 Scitech submitted that as the application was lodged more than 3 months after Mr Fletcher last performed work for them numerous staff members who were relevant to the matters in issue had left their employment, meaning their capacity to obtain evidence in support of their defence to the application was significantly prejudiced by the delay.40

[59] The difficulties raised Scitech associated with defending an application made out of time are not uncommon, I do not consider the delay to be of prejudice to the Scitech, however the absence of prejudice is not in itself a factor that would warrant the granting of an extension of time. I consider this factor to be neutral.

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

[60] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 41 it 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.”

[61] Scitech submitted that Mr Fletcher had advised of his inability to perform his role due to his impending commencement of full time study and that they had at all times acted in accordance with Mr Fletcher’s advice regarding the cessation of his employment in early 2018. 42

[62] Further, they submitted that Mr Fletcher’s reduced availability meant that he did not meet the requirements for the position of a Science Presenter in the Outreach program as prescribed in the position description, and accordingly such a dismissal would generally not be considered unfair. 43

[63] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 44 However, this application is essentially an interlocutory matter therefore it would be unusual for the Commission to make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.45 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

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

[64] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 46 as follows:

“[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, 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.”

[65] Scitech submitted that the application was lodged 10 weeks out of time, and given the exceptional rarity of the Commission in allowing applications filed so late to proceed, it is submitted that this factor weighs against the Commission allowing the application to proceed. 47

[66] Mr Fletcher did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between himself and other persons in a similar position. I consider this to be a neutral consideration.

Conclusion

[67] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.394(3) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[68] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 48

[69] Having considered the matters referred and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Mr Fletcher’s application to be made. Accordingly, the application is dismissed. An order 49 to that effect will accompany this decision.

COMMISSIONER

Appearances:

J. McCulloch for the Applicant;

W. Milward for the Respondent

Hearing details:

2018

Telephone hearing

31 August

Printed by authority of the Commonwealth Government Printer

<PR702344>

 1   Exhibit R1, 10-18

 2   Ibid, 26-28

 3   Ibid, 29

 4   Ibid, 30

 5   Exhibit A1, 2-3

 6   Ibid, 6

 7   Ibid, 19-21

 8   Exhibit A2, 21-23

 9   Exhibit R2, 6

 10   Ibid, 12-14

 11   Ibid, 19-20

 12   Ibid, 24-25

 13   Ibid, 26-27

 14   Ibid, 33-36, Annexure 1

 15   Ibid, 41-46

 16   Ibid, 47-48

 17   Ibid, 49-52, Annexure 1

 18   Exhibit A4, 4

 19   Ibid, 6, 12

 20   Exhibit R2, Annexure 2

 21   Exhibit A3, 6, 3

 22   Ibid, 4-5

 23   Ibid, 1

 24   Exhibit A2

 25   [2011] FWAFB 975

 26   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

 27   [2016] FWCFB 349

 28   Exhibit R1, 32

 29   Ibid, 34

 30   Exhibit A1, 19-21

 31   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [45]

 32   Exhibit A6

 33   Exhibit A9

 34   Exhibit A16

 35   Exhibit R1, 26

 36   Ibid, 37

 37   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 38   Exhibit R1, 38-39

 39   Ibid.

 40   Exhibit R1, 40-41

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

 42   Exhibit R1,42-43

 43   Ibid, 44-45

 44   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 45   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 46   [2015] FWC 8885 at [29]

 47   Exhibit R1, 46-47

 48   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 49   PR702345