Dale Robert Southern v Geelong Agricultural and Pastoral Society Inc
[2022] FWC 1497
•15 JUNE 2022
| [2022] FWC 1497 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dale Robert Southern
v
Geelong Agricultural and Pastoral Society Inc
(U2022/5624)
| COMMISSIONER MIRABELLA | MELBOURNE, 15 JUNE 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Mr Dale Robert Southern (the Applicant), made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Geelong Agricultural and Pastoral Society Inc (the Respondent).
Before granting a remedy, the Commission must be satisfied that the application was not made out of time.
This published decision reflects the decision I gave ex tempore on 15 June 2022 with corrections for grammatical, syntactical and any other insignificant errors.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
The parties agree, and I so find, that the dismissal took effect on 25 April 2022 and the application was made on 22 May 2022, some 27 days after the dismissal took effect. I am, therefore, satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.
The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Act. Those matters are:
(a) the reason for the delay;
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 16 May 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 22 May 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.
As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.
As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.
In written submissions, the Applicant submitted that the delay was due to representative error. The Applicant says that he had booked an appointment within the 21-day period with a lawyer, but that the appointment could not take place until 18 May 2022. The Applicant did not file any evidence to support his submissions.
At the determinative conference, the Applicant gave evidence that after receiving the notice of termination, he contacted JobWatch on or around 5 April 2022 or 6 April 2022. He later amended this to 10 May 2022. He says at this time he was aware of the 21-day time limit to file his application and that he received advice from JobWatch that the termination was unlawful. The Applicant says that he did not rely on this advice because it was only from one of the JobWatch volunteers. He says he attempted to contact his union representative and was unable to do so and, as a last-ditch effort, he contacted lawyers representing him in a WorkCover matter and says that they made contact and that his union representative from the Australian Worker’s Union spoke with him on the last day of filing. The Applicant said words to the effect that he took it for granted that the union representative knew what he was talking about when he gave him the advice that “I wouldn’t do it, if I were you”, meaning filing an application for unfair dismissal with the Commission. At the determinative conference, the Applicant says he was apprehensive about filing an application without advice because he had read on the “Fair Work website” that if he submitted an incorrect application, he could have costs awarded against him.
In relation to the reason for the delay, the Respondent submitted that the Applicant had sufficient time to lodge his application and alleged that the timing of the making of the application coincided with the Applicant being notified of an unsuccessful second workers compensation claim and an unsuccessful claim for incorrect payment.
Having considered the evidence, I find that the reasons for the delay were that the Applicant was apprehensive about filing an application under section 394 and that he waited to speak with a lawyer from JobWatch before deciding whether to file the application.
Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on 4 April 2022 and that the dismissal took effect on 25 April 2022. The Applicant, therefore, had the benefit of the full period of 21 days to lodge the unfair dismissal application.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
The Applicant alleges that he took action to dispute the dismissal.
The Applicant submitted that he took action to dispute the dismissal by seeking advice from his union representative and from JobWatch. The Applicant said that he has copies of call logs and text messages to show that he contacted these organisations, but he did not provide this evidence to the Commission.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I, therefore, find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings
As set out by the Full Bench at paragraph 13 in the decision of Nulty v Blue Star Group, which is at [2011] FWAFB 975, 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. 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.
When considering whether exceptional circumstances exist where the reason for delay is an error by the Applicant’s representative, it is relevant to consider whether the Applicant caused or contributed to the representative’s error, whether by act or omission.[1]
Where an applicant has given clear and timely instructions to their representative to file their application, the applicant is generally entitled to rely on the representative to carry out those instructions.[2]
In my view, the Applicant did not take reasonable and timely steps to preserve his position in relation to the dismissal in the weeks that followed. He knew at least on 10 May 2022 that he needed to lodge within 21 days and had been given preliminary advice by JobWatch that his dismissal was unlawful. He chose not to accept this advice and pursued a second opinion from his union representative that he did not receive until the last day of filing within time. The fact that the Applicant may have been apprehensive about filing an application is not unusual or extraordinary. The Applicant did not instruct anyone to file an application on his behalf, there was no evidence that the union was acting on the Applicant’s behalf in this matter, and there was no representative error on the part of his union representative that caused the late filing.
None of the other relevant considerations tip the balance in favor of a grant of additional time. Therefore, having regard to all of the matters at subsection 3 of section 394 of the Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is, therefore, dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
Mr. D Southern on his own behalf
Mr T. McCann for the Respondent
Hearing details:
2022
Melbourne (video using Microsoft Teams)
15 June.
Final written submissions:
3 June 2022 (Applicant)
[1] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [30].
[2] Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759; Donohoe v QuickComms Australia Pty Ltd[2020] FWCFB 5426.
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