Dominic Farkas v Adventus Australia Pty Ltd
[2025] FWC 28
•6 JANUARY 2025
| [2025] FWC 28 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dominic Farkas
v
Adventus Australia Pty Ltd
(U2024/12786)
| COMMISSIONER SLOAN | SYDNEY, 6 JANUARY 2025 |
Application for an unfair dismissal remedy – application filed out of time – extension of time for filing sought – extension refused
On 3 October 2024, Adventus Australia Pty Ltd dismissed Dominic Farkas from its employment.
Mr Farkas filed an unfair dismissal application with the Fair Work Commission on 25 October 2024.[1]
An unfair dismissal application must be made within 21 days of the dismissal, unless the Commission allows a further period.[2] The 21-day period expired on 24 October 2024. It follows that Mr Farkas requires the Commission to allow him an extension of time to file the application. He applies for such an extension.
Adventus opposes the extension application.
What questions do I need to answer?
The Commission may only allow Mr Farkas an extension of time if it is satisfied that there are “exceptional circumstances”, taking into account:[3]
a.the reason for the delay. The “delay” is the period between the end of the 21-day period and the filing of the application.[4] In this case, one day;
b.whether Mr Farkas first became aware of the dismissal after it had taken effect. This factor allows the Commission to have regard to whether there was a delay in Mr Farkas being informed of his dismissal, which may account for the delay in filing the application;
c.any action taken by Mr Farkas to dispute the dismissal. It will be relevant if an employee has taken action to dispute their dismissal, other than by making an unfair dismissal application. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time;[5]
d.prejudice to Adventus (including prejudice caused by the delay);
e.the merits of the unfair dismissal application. That is, the prospects of Mr Farkas succeeding on his claim; and
f.fairness as between Mr Farkas and other persons in a like position.
Circumstances will be “exceptional” if they are out of the ordinary course, or unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[6] Exceptional circumstances may include:
a.a single exceptional matter;
b.a combination of exceptional factors; or
c.a combination of ordinary factors which, when taken together, are seen as exceptional.[7]
The test of “exceptional circumstances” establishes a high hurdle for a person seeking an extension.[8] The onus is on Mr Farkas to demonstrate that exceptional circumstances exist.[9]
But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether to allow an extension of time.[10]
Therefore, two questions arise:
a.Do exceptional circumstances exist in this matter, taking into account the criteria at [5] above?
b.If so, should I exercise my discretion to allow Mr Farkas an extension of time?
The answer to the first question is no. It is not necessary to consider the second.
Why I have found that the circumstances are not exceptional
I will explain my decision by reference to the criteria at [5] above.
There was no acceptable explanation for the delay
The reason for the delay does not itself need to be exceptional. It is just one of the factors to be taken into account. However, a credible explanation for the entirety of the delay will usually assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[11]
Mr Farkas put the delay down to the stress he was under following the termination of his employment. He also said that he was taking medication which caused him to lose track of time.
Significantly, Mr Farkas gave evidence that he had obtained legal advice at least twice before the 21-day period expired. He said he spoke to a solicitor “early on”, who informed him that there was a time limit but not perhaps that it was 21 days. He spoke to another solicitor “mid-way”, who told him that the statutory time limit was 21 days and also advised him what to put in his application.
Mr Farkas stated that it was “pretty stressful” and that it took him a while to implement the advice he had received. He said he relied on a friend to help him complete and file the unfair dismissal application.
Mr Farkas relied on statements from his mother and three friends. They each described their observations of his behaviour and mental state over time, and in particular following his dismissal. They offered their opinions as to how the dismissal affected Mr Farkas’s state of mind and behaviour. All of the statements are consistent to the extent that they say that in the aftermath of his dismissal, Mr Farkas was not “his usual self”.
I have given this evidence limited weight. The lay observations of family and friends do not demonstrate that Mr Farkas was suffering from a particular psychological or medical condition at the relevant time. Further, only one of the witnesses attributes their observations to the delay in Mr Farkas filing the unfair dismissal application.
I accept that Mr Farkas’s dismissal caused him stress. But that is not uncommon. The involuntary loss of employment would be expected to cause a person stress and anxiety to some degree. Mr Farkas has not demonstrated that his circumstances are out of the ordinary.
I am not satisfied that Mr Farkas has provided an acceptable explanation for the delay. This argues against a finding of exceptional circumstances.
Mr Farkas was informed of his dismissal on the day it took effect
Mr Farkas was notified of his dismissal on the day it took effect. He had the full benefit of the 21-day period. This does not support a finding of exceptional circumstances.
Mr Farkas took no action to dispute his dismissal
There is no evidence that Mr Farkas took any action to dispute his dismissal before commencing these proceedings. That argues against a finding of exceptional circumstances.
There is no evidence of prejudice to Adventus
Adventus made no submissions that it would suffer prejudice were I to grant Mr Farkas an extension of time. But the absence of prejudice would not of itself support a finding that exceptional circumstances exist.[12] I do not consider this factor to be of any significance in this case.
What are the merits of the unfair dismissal application?
For present purposes, it is sufficient for Mr Farkas to show that his unfair dismissal claim has some merit. The greater the merit, the more weight will be given to this factor.[13] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[14]
Mr Farkas’s unfair dismissal application does not set out the basis on which he contends that his dismissal was unfair. It says only that “full details will be provided by my legal representative”. Those details have not been provided.
At the hearing, Mr Farkas stated that the unfairness of his dismissal arose from Adventus giving him inadequate time to address its concerns with his performance. For its part, Adventus relied on documents that were attached to its response to the unfair dismissal application. Those documents reveal that prior to the dismissal, Adventus management had spoken to Mr Farkas regarding his performance and conduct in July 2024; the concerns were subsequently confirmed in an email to Mr Farkas; a second performance meeting was conducted in August 2024; and Mr Farkas received a written warning on 28 August 2024.
Adventus also objected to the unfair dismissal application on the basis that it is a small business employer and the dismissal was consistent with the Small Business Fair Dismissal Code.[15] There is room for doubt as to whether Adventus is a small business employer.[16] This comes down to whether Adventus’s “affiliated businesses” are associated entities.[17] I have no basis on which to form even a preliminary view on this question.
Overall, it is difficult to form a view on the merits in the absence of Mr Farkas having fully set out the basis of his claim. I have determined that this factor argues neither for nor against a finding of exceptional circumstances.
Fairness as between Mr Farkas and other persons in a similar position
This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, to ensure fairness as between an applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[18]
Mr Farkas was not able to demonstrate that his matter is so sufficiently different to like matters in extension of time hearings which have come before the Commission that I should treat it differently. I think it would be unfair to other applicants whose applications for extensions of time were refused to treat Mr Farkas in a different manner. This weighs against a finding of exceptional circumstances.
Conclusion
Having regard to the matters discussed above, I am not satisfied that exceptional circumstances exist. It follows that there is no basis on which I can grant Mr Farkas the extension of time he seeks.
Mr Farkas’s request for an extension of time to file his unfair dismissal application is refused.
COMMISSIONER
Appearances:
Dominic Farkas, the Applicant
David Tynan, for the Respondent
Hearing details:
17 December
Sydney (by video)
2024
[1] The application was made under Part 3-2 of the Fair Work Act 2009 (“Act”). All references in this decision to legislative provisions are references to provisions of the Act.
[2] Section 394(2)
[3] Section 394(3). The requirement to take these matters into account means that each of them must be treated as significant to the decision-making process and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19] and [39]
[4] Long v Keolis Downer t/a Yarra Trams[2018] FWCFB 5109 at [40]
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300
[6] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]
[7] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]
[8] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[9] Romic v Blacktown City Council[2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services[2010] FWA 1798.
[10] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank[2017] FWCFB 436 at [16]
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]
[12] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890 at [21]
[13] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]
[14] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]
[15] Section 385(c) read with s 388(2)
[16] Within the meaning of s 23
[17] Within the meaning of s 50AAA of the Corporations Act 2001 – as per s 12 of the Act
[18] Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963 at [41]
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