David Anderson v Real Community Services Pty Ltd
[2023] FWC 1414
•16 JUNE 2023
| [2023] FWC 1414 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Anderson
v
Real Community Services Pty Ltd
(U2023/3496)
| DEPUTY PRESIDENT LAKE | BRISBANE, 16 JUNE 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Mr David Anderson (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Real Community Services Pty Ltd (the Respondent).
On the Form F2, the Applicant states that he commenced his employment with the Respondent on 9 November 2020 and was notified of his dismissal on 31 March 2023. The dismissal was effective on the same day.
The Applicant lodged his application on 23 April 2023. The application was lodged 2 days outside the statutory time limit prescribed by s.394(2) of the Act.
The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time.
Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was held before me on 9 June 2023.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]
It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
The Applicant misunderstood the 21-day timeframe from the date after dismissal. He states:
“It states "The 21 days for lodgment does not include the date that the dismissal took effect.[2] This means that day one commences the day following the dismissal.
It does continue to go on and say that " If the final day of the 21-day period falls on a weekend or on a national public holiday (when the Commission is closed) the timeframe will be extended until the next business day."
Ideally, I would have liked to of lodged my application earlier to avoid complications, however, it was an event that struck me very hard and was in my eyes very unjust due to the circumstances. It was difficult to begin and I had been rather intimidated and emotional about being dismissed.”
The Applicant was correct in that should the last day for lodgement fall on the weekend, the Form can be filed on the Monday. However, the last day to file the was on 21 April 2023 which fell on a Friday. There was no public holiday that fell on this date.
I note that the Commission’s website about how to lodge an unfair dismissal, along with other applications, including the timeframes associated with filing is very clear. The Applicant did not provide any other evidence regarding the delay besides the misunderstanding.
I find this weigh against an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant states that he was dismissed on 31 March 2023 on his Form F2. The Applicant was aware of his dismissal date through a meeting with a Coordinator and a Branch Manager through a performance review.
This consideration weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not take action to dispute the dismissal. This consideration does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
The Respondent did not address that an extension could potentially cause a degree of prejudice for the granting of an extension of time. I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[7] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[8]
It is difficult to find in favour of an extension of time considering the strictness of the 21-day timeframe and the website is explicit regarding the deadline to file an unfair dismissal application. This consideration weighs against an extension of time.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
Appearances:
D. Anderson for the Applicant
T. Green for the Respondent.
Hearing details:
9 June 2023
Hearing via Microsoft Teams
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[8] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].
Printed by authority of the Commonwealth Government Printer
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