Dylan Margrie v Agility Logistics Pty Ltd

[2022] FWC 526

[2022] FWC 526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dylan Margrie
v

Agility Logistics Pty Ltd

(U2022/784)

DEPUTY PRESIDENT COLMAN MELBOURNE, 9 MARCH 2022

Extension of time (s 394(3)) – no exceptional circumstances – application dismissed

1. Mr Dylan Margrie has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). His employment with Agility Logistics Pty Ltd (company) was terminated on 21 December 2021. Section 394(2) states that an unfair dismissal application 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 21-day period ended at midnight on 11 January 2022. The application was lodged on 14 January 2022, 3 days out of time. In order for Mr Margrie’s application to proceed, he requires an extension of time.

1. Section 394(3) states that the Commission may extend the period within which to lodge an unfair dismissal application if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section.

1. The Act does not indicate what kind of ‘reason for delay’ might tell in favour of granting an extension of time (s 394(3)(a)), however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable explanation’. Mr Margrie stated in his application that he had experienced ‘technical difficulties’ which prevented him from lodging his application in time. At the recorded conference, Mr Margrie said that he did not have access to a computer or scanner and had to wait until his aunt returned from holiday to use her equipment. Mr Margrie also said that he called the Fair Work Commission helpline and was told that he had to file his application electronically. He said that he was aware of the 21-day time period for filing unfair dismissal applications but believed he could obtain an extension. Mr Margrie also said that he had been suffering from poor mental health and had been traumatised by his dismissal.

1. I am not satisfied that Mr Margrie has an acceptable or reasonable explanation for the delay, nor do I consider his explanation to involve exceptional circumstances. I find it difficult to accept that Mr Margrie was told by a Commission helpline attendant that he could only file his application online. In fact, an unfair dismissal application can be lodged in a number of different ways, including by post and over the telephone (see rule 9 of the Fair Work Commission Rules). But even if Mr Margrie was told that he had to file his application online, I do not accept that he was unable to do so other than by using his aunt’s computer. Mr Margrie could have used the computer of another relative or a friend. He could also have used publicly available computers at a local library or an internet café. Mr Margrie did not provide medical evidence to show that he was suffering from poor mental health or trauma following his dismissal. I do not accept that any mental health problems prevented or seriously inhibited the timely filing of the application. The reasons for the delay weigh against an extension of time.

1. I consider the following matters to be neutral considerations. First, Mr Margrie was notified of his dismissal on the day that it took effect (s 394(3)(b)). Secondly, Mr Margrie took no action to dispute his dismissal apart from filing his application (s 394(3)(c)). Thirdly, there is no prejudice to the employer (s 394(3)(d)). Finally, I am not aware of any matters that are relevant to the question of fairness as between Mr Margrie and other persons (s 394(3)(f)).

1. As to the merits (s 394(3)(e)), Mr Margrie was summarily dismissed for having sent to another employee an image of a colleague wearing lingerie. Mr Margrie submitted that his dismissal for this reason was unfair because the person depicted in the photograph and the person to whom he sent the photograph (who is Mr Margrie’s relative) all consented to the distribution of the image, which occurred out of working hours. He also said that it was unfair of the company to dismiss him during a period of personal leave. The company submitted that the recipient of the photograph had made a complaint, and that in any event Mr Margrie’s behaviour had breached its code of conduct and constituted a valid reason for dismissal, and that in all the circumstances the dismissal was not unfair. An application to extend time is in the nature of an interlocutory application (see s 396). It is not possible to form any concluded view about the merits. In this case, the merits turn on disputed points of evidence that would need to be tested if an extension of time were granted. Much would depend on factual findings. Mr Margrie has an arguable case that his dismissal was unfair. The company has reasonable contentions to the contrary. I consider the merits of the application to be a neutral factor.

1. Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Mr Margrie has not established an acceptable or reasonable explanation for the delay. None of the considerations in s 394(3) weighs in favour of an extension. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. Mr Margrie’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

D. Margrie for himself
K. Fox for the respondent

Conference details:

2022
Melbourne
9 March

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