Darren Bloxham v Royal Foods Aus Pty Ltd

[2021] FWC 1245

[2021] FWC 1245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Bloxham
v
Royal Foods Aus Pty Ltd
(U2021/583)

DEPUTY PRESIDENT DEAN SYDNEY, 10 MARCH 2021

Application for an unfair dismissal remedy – extension of time not granted – application dismissed.

[1] This decision concerns an application by Mr Darren Bloxham (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 alleging that he was unfairly dismissed by Royal Foods Aust Pty Ltd (Respondent).

[2] The Applicant was notified during a meeting on 24 December 2020 that his position was redundant with immediate effect. His unfair dismissal application was lodged on 22 January 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 application in the present matter was filed 8 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).

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

(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.

[6] The application was listed for hearing on 9 March to decide whether to extend time. The Applicant appeared on his own behalf and there was no appearance on behalf of the Respondent. The Respondent subsequently explained that it had not received the Notice of Listing as an explanation for its non-attendance.

[7] I proceeded to hear the application despite the non-attendance of the Applicant.

Reason for the delay

[8] The Act does not specify what reasons for delay 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 Applicant cited the following as the sole reason for the delay in lodging his application:

“The reason I didn't lodge within 21 calendar days was because I was advised by management that there was no work for me even with all my experience within the company and they had to cut back on staff. It only came to my attention on 20/01/21 that the position I was made redundant from was advertised on 20/01/21 both part time and full time. To add to that I also had holidays booked in with a week off and that means 2 weeks after I would have taken my leave and that’s when they needed staff, so it's my belief they let me go and waited the 21 days so that I wouldn't have any rights to lodge.”

[10] In the employer’s response to the application, the Respondent submitted that the Applicant’s dismissal was a case of genuine redundancy due to the downturn of business caused by the COVID-19 Pandemic and the cessation of the Job Keeper Government support. The Respondent stated that they did not effect these redundancies earlier so that the employees could receive the benefits of the final Job Keeper payments. Further, the redundancies were held off in the hope that improvement in the hospitality industry would occur. However, it became apparent towards the end of December that this was not going to be the case.

[11] In terms of the position advertised on 20 January 2021, the Respondent explained that it was to replace a Truck Driver who had resigned on 19 January and that the resignation was unforeseen at the time the Applicant’s position was made redundant.

[12] In his oral evidence, the Applicant did not challenge the Respondent’s explanation pertaining to the advertised position. Rather, the Applicant argued that there were plenty of work available and his position should not have been made redundant.

[13] Having considered the material before me, I am not satisfied that the reasons provided by the Applicant constitute an acceptable reason for the delay. The Applicant expressed the view during the hearing that there was “plenty of work available for him” and was clearly of that view before he saw any job advertisements. The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

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

[14] The Applicant was notified of his dismissal on 24 December 2020. He therefore had the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

Action taken to dispute the dismissal

[15] The Applicant did not take any action to dispute his dismissal until this application was lodged.

[16] I consider that this weighs against a finding that there are exceptional circumstances.

Prejudice to the employer

[17] The Respondent said that it would be prejudiced if the extension of time were granted, given its business continues to experience a downturn caused by the pandemic and it becoming ineligible for Job Keeper to other areas of the business that no longer meeting the requisite test. Further, the Applicant has received his redundancy payment of seven weeks and defending this application will add further costs to its business.

[18] Whilst I do not accept that any prejudice would accrue to the Respondent if an extension of time were to be granted, 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.

[20] It is clear that the parties are in dispute as to the question of whether the dismissal was a case of genuine redundancy.

[21] It is not possible to make any firm or detailed assessment of the merits in the absence of tested evidence. 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

[22] 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.

[23] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[24] I have had regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant. On balance, I am not persuaded that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. Accordingly, the application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

D Bloxham on his own behalf.

Hearing details:

2021.
Sydney (By Telephone):
March 8.

Printed by authority of the Commonwealth Government Printer

<PR727586>

 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]