Donovan Andrew Badrock v AME Systems (Vic) Pty Ltd T/A AME Systems

[2021] FWC 6448

[2021] FWC 6448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donovan Andrew Badrock
v
AME Systems (Vic) Pty Ltd T/A AME Systems
(U2021/9700)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 25 NOVEMBER 2021

Application for an unfair dismissal remedy – Jurisdiction – Extension of Time –Application Dismissed

[1] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act), in respect of his employment with AME Systems (Vic) Pty Ltd T/A AME Systems (the Respondent). That application was lodged on 29 October 2021.

Application was filed outside the statutory timeframe

[2] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

[3] The Applicant’s employment was terminated by the Respondent with effect from 1 October 2021. Based on a termination date taking effect on 1 October 2021 by way of summary dismissal for serious misconduct, 1 the application for a remedy should have been lodged by no later than 22 October 2021 but was lodged on 29 October 2021.

[4] The application was therefore lodged outside of the time prescribed. The application was made 7 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[5] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[6] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay,

•  whether the Applicant first became aware of the dismissal after the date it took effect,

•  any action taken by the Applicant to dispute the dismissal,

•  prejudice to the Respondent including prejudice caused by the delay,

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[7] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 2

[8] 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 or unprecedented, nor do they need to be very rare. 3 I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

[9] I now consider these matters in the context of the Application.

(a) Reason for the delay

[10] The Act does not specify what reason for 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 the circumstances must be considered. 4

[11] The Applicant claims that the explanation for the delay was that the printer ran out of ink, there were printing difficulties, problems with scanning, and the delay was minimal, there were complications caused by COVID-19, and other facts. 5

[12] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delayand that is a matter that weighs against the Applicant in this case. The Applicant bears responsibility for factors such as the mechanics of printing a hard copy of an application if he chooses that mode of lodging an application. Or he could have rung the hotline listed on the website if he was having difficulty, which he did not. Or he could have filled out the form online and emailed it without printing it out, with the assistance if necessary, of the hotline. Or he could have lodged the application by telephone if he had called the hotline. He did not do these things. As the employer says, the Applicant was digitally competent and could have lodged by email or post. 6 It says ‘the F2 form Mr Badrock submitted was created on the 19/10/21 at 11:33am, the same day as he signed the document and then last modified on 29/10/2021 at 9:03am.7 Why a 10-day delay between creating the document and finalising it? This goes against the reasoning of not being able to scan documents put forward by Mr Badrock as to the lateness of his submission.’8

Although not relevant to this Decision it is noted that the online lodgement system of the Commission was down at the time the Applicant attempted to make his application. However, this did not impact on his ability to complete the application electronically and then submit it by email. Therefore, this factor cannot be considered as contributing to delay.

(b) Whether Applicant first became aware of the dismissal after the date it took effect

[13] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised by letter on 1 October 2021 that his employment was summarily terminated, the same day that an interview was held with him to ascertain if he should be terminated. 9

[14] In the circumstances, that is a matter that weighs against the Applicant.

(c) Any action taken by the Applicant to dispute the dismissal

[15] Turning next to the question of the action taken by the Applicant to dispute his dismissal. No action was taken to dispute the dismissal according to the Applicant.

[16] In the circumstances, that is a matter that weighs against the Applicant.

(d) Prejudice to the Respondent including prejudice caused by the delay

[17] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The period of time was short and there was no prejudice.

[18] In the circumstances, that is a matter that weighs in favour of the Applicant.

(e) The merits of the application

[19] As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable. I have taken into account the Applicant and the Respondent’s version of events and conclude that evidence will be required of the events. 10 The respective cases of the Applicant and the Respondent may depend on evidence. This is a neutral factor.

(f) Fairness as between the Applicant and other persons in a similar position

[20] As to fairness between the Applicant and other persons in a similar position, there are no others in a similar position, and this is a neutral factor.

[21] Cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like 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.

[22] I have taken into account the decision referred to by the Applicant, but these cases turn on their individual facts and circumstances, which differ.

Conclusion

[23] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[24] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[25] As I have indicated, above there is no satisfactory explanation for the delay, and I have taken each of the above factors into consideration. In the circumstances I am not persuaded that there are exceptional circumstances which warrant an extension of time. I therefore refuse to grant an extension of time.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR736132>

 1   Digital Court Book at p.12

 2   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 3   Ibid

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

 5   Digital Court Book at p.14

 6   Ibid at p.24

 7   Ibid

 8   Ibid

 9   Ibid at p.12

 10   Ibid at pp.8-10; 13