Craig Young v Ritchies IGA

[2021] FWC 2555

[2021] FWC 2555

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Young
v
Ritchies IGA
(U2021/3099)

COMMISSIONER O’NEILL MELBOURNE, 6 MAY 2021

Unfair dismissal application filed out of time – circumstances exceptional – extension of time for filing allowed.

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

[2] The Applicant’s employment with Ritchies Stores Pty Ltd (Respondent) was terminated with effect from 6 March 2021. The unfair dismissal application was lodged on 13 April 2021.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 27 March 2021. The application was therefore filed 17 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

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

[7] This means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

Reason for the delay

[8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3

[9] The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period. 4 However, the circumstances from the time of the dismissal must be considered when addressing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.5

[10] In summary, the Applicant relies on the following reasons for the delay in lodging the application:

•  The Applicant was deeply distressed over his dismissal, he felt overwhelmed, became very unwell and sought and obtained professional assistance from his GP and a psychologist. For some time, the Applicant “couldn’t put pen to paper”. He attempted to obtain assistance from lawyers but was unable to afford to engage a lawyer.

•  On Saturday, 27 March 2021, the last date the Applicant could have lodged his application within the 21-day period, he sought to do so. The Applicant acknowledges that he left making his application to the last minute, but says he was physically and mentally unable to do so earlier.

•  At 10:40 am on 27 March, the Applicant sent an email from an Apple Mac computer attaching an unfair dismissal application form with a covering email to the Commission. The Applicant says that he would have preferred to use the online form on the Commission’s website, as he is not very proficient with Apple Mac computers. However, he says that the online lodgement service was undergoing repairs and was unavailable.

•  At 12:40 pm the Applicant received an automated receipt from the Commission.

•  The next business day, Monday 29 March 2021, the Applicant telephoned the Commission’s Infoline to confirm that his application had been received, and to find out what the next steps would be. In that call, the Applicant’s evidence was that after providing his details to the Commission employee and saying that he had received a confirmation email, the employee he spoke to told him that she was unable to see his application at that time, but that it may not have come through yet. The Applicant’s evidence is that the employee said that the next step in relation to the application would be that he would receive a telephone call from the Commission, or a text message if he missed that call.

•  The Applicant’s evidence is that he then waited for contact from the Commission, and as well as monitoring his telephone for calls, checked his emails daily on weekdays (as he did not contemplate the Commission would contact him during the weekend).

•  The next contact was on Tuesday 13 April 2021, when the Applicant telephoned the Commission again. He did so as it had been two weeks since his previous call and he was becoming worried that he had not been contacted by the Commission, as he had been expecting. The Applicant’s evidence was that he wasn’t unduly worried before this time as he recalled reading somewhere on the Commission’s website – though he couldn’t recall precisely where because he had read a lot of information – something about a two-week process. He also thought that it was not surprising that a government body would take two weeks’ time to action matters.

•  During the telephone call on 13 April 2021, the Applicant provided his details and explained that he had not received the telephone call he was expecting from the Commission. The Commission employee the Applicant spoke to told him that he had not lodged his form properly and referred to an email sent to him at 2:53 pm on Saturday, 27 March 2021. This email sent by a Commission employee advised the Applicant that the Commission had received an email from him, but that the email or attachments couldn’t be accessed because of either the format of the files or security restrictions. The email advised that the Applicant’s email could not be actioned, that the files had not been received and requested that the documents be sent again in a particular format, without restrictions. The email noted that “There are strict time limits for some application types. Some applications are dismissed if they aren’t lodged within the time limits”.

•  The Applicant’s evidence is that this is the first time he became aware there was any issue with his application being lodged correctly and that before this telephone call, he was totally unaware that this email had been sent to him. His evidence is that after the telephone call, he straight away looked for and did find the email in his inbox. The Applicant says that he had missed it because it was caught up with a very large number of mostly spam emails that he receives (up to 100 per day). He says that he had not previously looked for it as he had not considered that the Commission would email him on a Saturday.

•  On the same day the Applicant then lodged the current application.

[11] I consider these matters to be an acceptable or reasonable explanation for the delay. Whilst the Applicant waited until the last available day to lodge his application, and this was unwise, I accept that this was partly because of his mental health. However, the Applicant did attempt to lodge his application within the 21-day time period and believed that he had successfully done so. He followed up on the next business day to ensure that his application had been received, and I accept his evidence that following his telephone call to the Commission on Monday, 29 March 2021 he had no reason to believe that there was any problem with his application. I find this conversation with a Commission employee to be credible in circumstances where the Applicant did not use the online lodgment system but emailed his application to the Commission. I accept the Applicant’s evidence that he believed that the next step would be that he would be contacted by the Commission.

[12] However, the Applicant did not follow up with the Commission for just over two weeks from this date. I find that while at the outer limits of an acceptable period, the Applicant’s belief that two weeks was not an unreasonably long period of time for a government body to action matters coupled with his recollection of reading about a two-week time frame, to be a reasonable explanation for not following up sooner.

[13] I accept the Applicant’s evidence that the first time he became aware of either the email that had been sent to him at 2:53 pm on Saturday, 27 March 2021 or that his application had not, in fact, been lodged with the Commission was during his follow-up telephone call to the Commission on 13 April 2021. The Applicant then promptly lodged his application on the same day.

[14] The finding of an acceptable explanation for the whole period of delay weighs in favour of a conclusion that there are exceptional circumstances.

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

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

Action taken to dispute the dismissal

[16] No action other than the attempt to lodge an unfair dismissal application was taken by the Applicant to dispute the dismissal. This is a neutral consideration.

Prejudice to the employer

[17] The Respondent submitted that it had considered the matter closed once the 21-day time limit had expired, however it did not raise any particular prejudice that would arise if an extension of time were to be granted.

[18] The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[19] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[20] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[21] A person seeking relief from unfair dismissal must make an application within 21 days after the dismissal takes effect. Only in exceptional circumstances will the Commission consider allowing a further period.

[22] When I consider each of the matters set out in s 394(3), in the context of the evidence and submissions in this case, and when I look at those circumstances collectively, I am satisfied that they establish there are exceptional circumstances. I therefore turn to consider whether to exercise my discretion to allow a further period for the Applicant to lodge his application. The Applicant has established by evidence, a substantial reason, which I am satisfied is an acceptable and credible reason for the delay in lodging his application. There are no counterbalancing considerations which would suggest that I should not exercise my discretion.

[23] I therefore propose to allow a further period within which this application may be made. That further period is extended to 13 April 2021.

COMMISSIONER

Appearances:

C Young, Applicant.
M Brown of Master Grocers Australia Ltd for the Respondent.

Hearing details:

2021.
Melbourne (by telephone):
May 4.

Printed by authority of the Commonwealth Government Printer

<PR729439>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 4   Long v Keolis Downer [2018] FWCFB 4019 at [40].

 5   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].