Danny Sit v Sigma Company Limited
[2023] FWC 1281
•31 MAY 2023
| [2023] FWC 1281 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Danny Sit
v
Sigma Company Limited
(U2023/3506)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 31 MAY 2023 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances not found – application dismissed.
On 25 April 2023, Mr Sit made an application to the Commission for an unfair dismissal remedy. His employment was terminated by Sigma Company Limited effective 3 April 2023.
Section 394(2) of the Fair Work Act 2009 (Cth) (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 21-day time period expired at midnight on 24 April 2023, and therefore, the application was made one day late. In order for the application to proceed, Mr Sit requires the Commission to grant a further period of time within which to bring his application.
On 1 May 2023 Mr Sit was directed to file material in support of an extension of time being granted by 8 May 2023. When he failed to comply with this direction and attempts to contact him were unsuccessful, the matter was listed to deal with his non-compliance on 24 May 2023. On the morning of this hearing, his representative, Ms Tse, advised that Mr Sit was overseas and unable to attend. Correspondence was then sent to Mr Sit advising that his application was at risk of being dismissed under section 587 of the Act. On 26 May 2023, Ms Tse sent an email apologising on behalf of Mr Sit for not responding earlier and advised that he had travelled to Hong Kong to assist his ill mother and did not realise that he had missed telephone calls from my chambers as he did not have international roaming.
The parties were then advised that the hearing would proceed on 30 May 2023, to deal with the question of whether to grant additional time to allow Mr Sit to pursue his application.
At the hearing on 30 May 2023, Ms Tse appeared for Mr Sit. Ms Tse confirmed that she represented Mr Sit as a paid agent and advised that he was unable to attend the hearing as he was attending to his sick mother and was having a ‘medical emergency’ which meant he could not attend.
I indicated that if Mr Sit provided a statutory declaration explaining why he was unable to attend the hearing today, I would adjourn the hearing until 4:00 pm tomorrow. Alternatively, I could determine the application on the basis of the limited material before the Commission. I advised that the information before the Commission does not provide a basis upon which exceptional circumstances would be found, warranting an additional period of time being granted. Ms Tse advised that the later was the course the Commission should take.
Accordingly, I have determined the issue on the basis of the material before the Commission. I am not satisfied that there are exceptional circumstances, and therefore there is no basis to grant Mr Sit additional time to make his application. These are my reasons for doing so.
Extension of time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay;
· whether the person first became aware of the dismissal after it had taken 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.
In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.
Relevant factors
Reason for delay
The Act does not specify what reason for delay might justify 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]
Mr Sit’s explanation for the delay in making his application, as set out in an email from his representative of 26 May 2023, is that since “around mid-April 2023” he has had to provide care for his elderly mother who suffers from dementia along with Mr Sit’s sister, her primary carer. This involved travelling from Sunshine North to Endeavour Hills daily, which is said to take 3 to 4 hours per day travelling time, and spending “at least 8 hours per day” taking care of her. Additionally, the “sudden harsh and unfair dismissal” had “taken a big toll” on Mr Sit. Further, “although he communicated and checked with his representative on multiple occasions, his representative failed to take the submissions promptly due to a miscalculation of the 21-day requirements.”
Leaving aside the fact that this explanation was no more than an email from Mr Sit’s representative to the Commission, it lacks sufficient detail to provide a credible explanation for the delay. No explanation is provided as to why Mr Sit’s need to provide care for his mother rendered him incapable of making the application within the required timeframe, the period of time concerned, or details of the travel involved. For example, Google Maps indicates that travelling from North Sunshine to Endeavour Hills would take approximately 50 minutes travelling by car and 2 hours by public transport. If Mr Sit was travelling by public transport, on his account, there would have been 3 to 4 hours each day that Mr Sit could have completed and made his application.
Assuming Mr Sit relies on representative error, no details have been provided as to Mr Sit’s “communication and checking with his representative on multiple occasions”, what actions his representative took or how the 21-day requirement was ‘miscalculated’. On the material before the Commission, it is not possible to assess the nature and circumstances of any representative error, and Mr Sit’s actions, if any, in relation to it.
I am not satisfied that Mr Sit has provided an acceptable explanation for the delay and that is a matter that weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
Mr Sit provided a copy of the letter terminating his employment dated 3 April 2023. There is no information to indicate when Mr Sit received the letter. This consideration does not weigh in favour of a finding of exceptional circumstances.
Any action taken by the person to dispute the dismissal
There is no material to indicate that, other than the making of the unfair dismissal application, Mr Sit took any action to dispute the dismissal, and this is a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
There is no material before the Commission about this consideration, and I have treated it as a neutral consideration.
Merits of the application
Mr Sit’s application contends that his dismissal was unfair because:
· in advance of a disciplinary meeting, he was not provided with specific details of allegations that were put to him;
· he has been a hard-working employee with positive feedback about his performance;
· he was not provided with appropriate training; and
· he had received no previous warnings.
He attached to his application two letters from Sigma Company Limited, which details the conduct he was alleged to have engaged in. In the letter terminating his employment it records that Mr Sit had confirmed during the investigation that he had falsified attendance records for two employees to assist them.
These matters would need to be the subject of detailed evidence, and it is not possible to come to a view about the merits of Mr Sit’s application, and I have treated it as a neutral consideration.
Fairness as between the person and other persons in a similar position
There is no material before the Commission about this consideration, and I have treated it as a neutral consideration.
Conclusion
The Commission can only grant an extension of time if it is satisfied that there are exceptional circumstances. None of the factors I need to consider weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case. As there are no exceptional circumstances, there is no basis to allow additional time for Mr Sit to make his application. This means that Mr Sit is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Ms Tse for the Applicant.
Mr Tracey for the Respondent.
Hearing details:
2023
30 May 2023
Melbourne via VC
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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