Craig Brooks v Bunnings Group Limited

[2024] FWC 1125

[2024] FWC 1125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Craig Brooks
v

Bunnings Group Limited

(U2024/2179)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 MAY 2024

Application for an unfair dismissal remedy – application made outside of time prescribed – whether there are exceptional circumstances – whether discretion to extend should be exercised – extension of time granted – application dismissed

[1]       This is an edited version of my decision delivered ex tempore and recorded in transcript on 29 April 2024.

[2]       Craig Brooks, the applicant, commenced his employment with Bunnings Group Limited, to which I will refer as the respondent, on about 10 October 2022.  The applicant was dismissed from that employment on 5 February 2024, and he was notified of his dismissal on the same day.

[3]       The applicant later applied under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy on 27 February 2024. Section 394(2) requires that an application for an unfair dismissal remedy be made within 21 days after the dismissal took effect, or within such further period as the Commission may allow.

[4]       As already indicated, the applicant’s dismissal took effect on 5 February 2024, and so, in order to fall within the 21-day time limit prescribed by the Act, the application should have been made on 26 February 2024.  Self-evidently, the application was one day outside the time prescribed.

[5] Section 394(2) of the Act empowers the Commission to allow an application to be made within a further period, subject to the Commission being satisfied that there are exceptional circumstances as described in subsection 394(3). It is necessary therefore to consider whether the applicant should be granted a further period within which to lodge his application.

[6]       Whether there are exceptional circumstances is to be determined by taking into account the various matters that are set out in s 394(3). Briefly, exceptional circumstances, although not defined in the Act, may be circumstances that are out of the ordinary course, or unusual or special or are uncommon, but the circumstances may not be unique nor unprecedented, nor even rare. Exceptional circumstances might be a single event which is exceptional or a combination of unexceptional facts, which when combined will amount to exceptional circumstances.

[7]       As I have indicated, s 394 of the Act sets out the matters that are to be taken into account in assessing whether there are exceptional circumstances. These matters are: the reasons for the delay; whether the person became aware of the dismissal after the dismissal took effect; any action taken by the person to dispute the dismissal; prejudice to the employer, including prejudice caused by the delay; the merits of the application; and fairness as between the person and other persons in a similar position.

[8]       Each of these matters to the extent that they arise in evidence or material about them must be taken into account.  They must be assessed, and appropriate weight should be assigned to each matter having regard to such evidence as is available.

[9]       The applicant indicated in the application form that he was lodging his application within time.  That assertion was plainly incorrect.  Consequently, the applicant did not explain in his application why the application was late.

[10]     On 5 April 2024, I issued directions requiring the parties to file and exchange materials in preparation for a hearing to determine whether a further time should be allowed in which the applicant could lodge his unfair dismissal remedy application.  The applicant was required to file his materials by 12 April 2024.  He failed to do so, and he has not provided any explanation for his failure to comply, much less did he provided any reason for the delay in lodging his unfair dismissal remedy application.

[11]     Despite efforts by my Associate to make contact with the applicant by email sent to him on 17, and again on 22 April 2024, seeking that he file and serve materials, and reminding him of the hearing today.  No response has been received.  A further telephone call from my Associate to the applicant on 26 April 2024, during which she left a message with the applicant requesting that he call back and explained why she was calling, was equally unfruitful.

[12]     Plainly, the applicant has not attended this hearing, and so has been unable to provide any explanation for the reason or the reasons for the delay.  The Act does not specify what reason or reasons for delay might favour the granting of an extension of time.  However, decisions of the Commission have referred repeatedly to the reason for the delay being an acceptable or reasonable explanation.

[13]     The absence of any explanation for any part of the delay will usually, although not always, weigh against an applicant in the assessment whether there are exceptional circumstances, and a credible explanation for the entire period of the delay will usually weigh in the applicant’s favour.  But all of the circumstances need to be considered.

[14]     The period of delay with which we are concerned is the period immediately after the 21-day period expired, so it is the one-day delay.  But the circumstances which pertained from the date of the dismissal may be considered in assessing whether the explanation that was proffered by an applicant for the delay is acceptable or credible.  It may also inform the weight that one attaches to any reason for delay.  But here, the applicant has provided no explanation or any reason for the delay.  Moreover, he has shown little regard for the process he attempted to begin by lodging his unfair dismissal remedy application.  In these circumstances, the absence of any reason or explanation for the delay weighs, in my view, strongly against a conclusion that there are any exceptional circumstances.

[15]     Turning next to the question of the applicant’s awareness of his dismissal.  As is evident from the witness statement of Ms Bogoevski, the applicant was told on 5 February 2024 that his employment was terminated with immediate effect on serious misconduct grounds.  He was also given a letter of termination on that day informing him of his dismissal and the date of its effect.

[16]     According to Ms Bogoevski, whose evidence I accept, after being handed the termination of employment letter the applicant was asked whether he had any questions.  He responded with: ‘No questions.  You’ll be hearing from my lawyers.’  In the circumstances, the applicant was well aware that his dismissal took effect on that day, and, as a consequence, he had the whole of the 21-day period within which to make the application, and he had indicated that he was going to instruct lawyers in relation to the dismissal.  All of this, in the circumstances, means that this consideration weighs against a conclusion that there are exceptional circumstances.

[17]     As to any action taken by the applicant to dispute the dismissal, apart from foreshadowing, as I have already indicated, that he would make contact with his lawyers, and that those lawyers would contact the respondent, the applicant took no action to dispute his dismissal until the application which he brought out of time was lodged.  The applicant did not take any steps, and that he did not is a matter that also weighs against a conclusion that there are exceptional circumstances.

[18]     As to prejudice to the employer, the respondent submits that there is prejudice in circumstances where it has filed a detailed employer response, made submissions in this proceeding, and has filed a witness statement in connection with the extension of time hearing.  Whereas the applicant is not complying with the Commission’s directions, does not appear to be prosecuting his application, and as is evident now is not participating in these proceedings.  All of that may be so, but that same prejudice, or perhaps better described nuisance, would have been visited upon the respondent had the applicant actively participated in these proceedings.

[19]     In my view, there is no obvious prejudice to the respondent caused by the applicant's delay.  The delay is very short, and in the circumstances, I consider that prejudice, or the absence of it, weighs slightly in favour of a conclusion that there are exceptional circumstances.

[20]     Turning to the merits, there is scant material in the applicant's application form about the merits of his unfair dismissal remedy application.  He says that his dismissal was unfair because of, I quote: 'Spinal damage caused by work.'  That is the extent of his case thus far.  He does not engage with the reasons for dismissal given by Bunnings which were communicated to him during the meeting on 5 February and were set out in the letter of dismissal.  He does not even acknowledge the reason the respondent gave him for the dismissal.

[21]     In contrast, the respondent has set out in some detail the reasons for the dismissal, the nature of the allegations, the process by which the allegations were investigated and assessed.  It has also set out the steps it took to give the applicant an opportunity to respond to the allegations and to the reasons for the dismissal.

[22]     Obviously, without parties giving evidence about the circumstances of the dismissal it is difficult to assess the merits of an application.  It is also difficult to assess the merits in the context of that which is essentially an interlocutory proceeding where the merits are not tested as they would be in a final hearing.  But here, even taking the applicant's case at its highest as set out in his application, given the absence of the applicant and given the absence of any detail about why he contends his dismissal was unfair, it must be said that the applicant's case is very weak indeed, and in those circumstances this consideration weighs against a conclusion that there are exceptional circumstances.

[23]     Finally, as to fairness between the applicant and other persons in a similar position, as is often said in cases of this kind they turn on their own facts, and the fairness consideration is concerned with the importance of the application of consistent principles in cases that are similar, so as to ensure that there is fairness between the applicant and other persons in a similar position.  This consideration may relate to matters currently before the Commission or matters previously decided.  It may sometimes concern the position of the applicant and the dismissal of other employees of the respondent at or about the same time.  The applicant is not here and has not made any submissions about this issue, and the respondent in its submissions does not point to any fact or circumstance or case which might be relevant to this consideration.  Accordingly, this consideration weighs neutrally.

[24]     In the instant case, the applicant has not provided an acceptable or credible explanation for the delay.  He has provided no explanation.  He took no steps beyond lodging the application to dispute his dismissal, and he had the benefit of the full 21-day period within which to lodge the application.  The merits of the application in my assessment are very weak, and the fairness consideration weighs neutrally.  It is only the absence of prejudice which weighs only slightly in favour of the applicant.

[25]     Considering the matters set out in s 394(3) of the Act in the context of the present case, whether they are considered individually or collectively, I am simply not satisfied that there are exceptional circumstances. Accordingly, this is not the occasion on which to allow a further period because of the jurisdictional requisite. That is exceptional circumstances do not exist.

[26]     An order dismissing the applicant’s unfair dismissal remedy application was made on 29 April 2024 and is recorded in the transcript.[1]

DEPUTY PRESIDENT

Appearances:

No appearance for the applicant

R Yu for the respondent

Hearing details:

Melbourne
2024
29 April

Video using Microsoft Teams

[1] An order has been issued in PR774369

Printed by authority of the Commonwealth Government Printer

<PR774368>