Darren John Amis v Nawoc Holdings Pty Ltd T/A BumperTech South
[2024] FWC 548
•1 MARCH 2024
| [2024] FWC 548 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darren John Amis
v
Nawoc Holdings Pty Ltd T/A BumperTech South
(U2024/518)
| DEPUTY PRESIDENT DEAN | CANBERRA, 1 MARCH 2024 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances
Mr Darren John Amis (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed by Nawoc Holdings Pty Ltd T/A BumperTech South (Respondent).
Section 394(2) of the Act provides 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 Applicant’s dismissal took effect on 21 December 2023 and he made the application on 15 January 2024, four 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 matter was listed for hearing by telephone on 29 February 2024. The Applicant was self-represented. The Respondent did not wish to be heard as to whether the Commission should grant further time for the application to be made, and as a result did not attend the hearing.
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]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.
Reason for the delay
The Act does not specify what reason for the 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]
The Applicant provided the following explanations for the delay:
·He is computer illiterate and as a result was unable to access the Commission’s website;
·The Respondent had withheld monies owing to the Applicant including his annual leave payment, and as a result he had to move out of his accommodation and relocate to his parents’ home over 300kms away from Brisbane.
·As a result of his relocation and given it was four days before Christmas, he was unable to attend the Commission office in Brisbane.
·On or about 12 January 2024 he tried a number of times contacting the Commission by telephone but was unable to get through to a person.
During the hearing, the Applicant was asked whether he had any evidence such as phone logs from his mobile phone (which he said the calls to the Commission were made from) that would demonstrate he had tried to contact the Commission by telephone within the 21 day time period. He checked his phone however he had no record of any calls made to the Commission within the 21 day time period.
In the circumstances I am not satisfied that the reasons for the delay advanced by the Applicant are exceptional. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his dismissal on the day it took effect and therefore had the full 21-day period to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute his dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that 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
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.
The Applicant says he was dismissed when, after a disagreement about unfair work demands, the Respondent told him to “fuck off and don’t come back”.
The response filed by the Respondent (Form F3) asserts the Applicant resigned after a disagreement about the length of his upcoming period of leave.
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. I do not consider the merits of the present case 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
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.
I do not consider that there are any persons or cases 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.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
D Amis, on his own behalf.
Hearing details:
2024.
By telephone:
February 2029.
[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].
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