Edward Bates v Randall Industries (Australia) Pty Ltd

[2020] FWC 3836

[2020] FWC 3836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edward Bates
v
Randall Industries (Australia) Pty Ltd
(U2020/9139)

COMMISSIONER BISSETT MELBOURNE, 23 JULY 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Mr Edward Bates (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant’s employment with Randall Industries (Australia) Pty Ltd (Respondent) was terminated with effect from 21 May 2020. The unfair dismissal application was lodged on 3 July 2020.

[3] Section 394(2) of the FW Act states 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 period of 21 days ended at midnight on 11 June 2020. The application was therefore filed 22 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) of the FW Act. The Respondent opposes this request.

[4] The FW 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

[5] Section 394(3) requires that, I n 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.

[6] 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 the Application.

[7] The Respondent was given permission to be represented in the hearing of the matter.

Reason for the delay

[8] The FW 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 of the circumstances must be considered. 3

[9] The Applicant cited several matters as reasons for the delay in lodging the application. The Applicant originally filed an application for unfair dismissal in relation to the dismissal on 29 May 2020 – that application was filed within time. The Applicant said that, not long after lodging that application he received a phone call from Mr Peter Lawrence of the Respondent who threatened him with criminal charges in relation to the incident that led to his dismissal. The Applicant said that, as a result of that telephone call he discontinued his application. This discontinuance was conveyed to the Commission when a staff member of the Commission contacted the Applicant on 9 June 2020 about non-payment of the filing fee in relation to that application.

[10] The Applicant said that, following discontinuing the first application, he spoke to a lawyer not long after who told him he “had a case”. After receiving legal advice the Applicant said he then thought about it some more and spoke to others and decided to lodge a fresh application which he did on 3 July 2020. Mr Bates offered no other explanation for the delay in making his application.

[11] The Respondent suggested that if it was that Mr Bates gained some legal advice after discontinuing his first application it is reasonable to assume that he would have been advised of the time limits for making an application.

[12] I do not consider the explanation given by the Applicant to be an acceptable or reasonable explanation for the delay. I have reached this conclusion because the Applicant was unable to describe in any detail why it took until 3 July 2020, 24 days after he discontinued his first application, to lodge the second application except that he was “thinking about it”. The explanation provided leaves too many gaps in the time taken to make the second application which are without any explanation. Whilst it is not necessary to explain the totality of the delay, the inability to be able to explain most of the delay is telling.

[13] In reaching my conclusion I have not had regard to the competing claims as to the content of the telephone call made by the Respondent to the Applicant after the first application was made. It is not necessary for me to do so to make my decision. Whilst I accept that this may have been the cause in discontinuing the first application, it does not explain the delay in lodging the second. Additionally, the Applicant said he had taped the conversation which makes the unsworn statement of a friend (who was not at the hearing) who is said to have overheard the conversation unreliable.

[14] 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

[15] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[16] The Applicant did dispute the dismissal through the first application. I consider this step to constitute “action to dispute the dismissal”. This circumstance weighs in favour of the Applicant.

Prejudice to the employer

[17] The Respondent said it would be prejudiced by the delay in gathering its evidence from employees. The Applicant did not concede any prejudice.

[18] Whilst the prejudice to the Respondent may be real the delay is not substantial. I consider this a neutral matter.

Merits of the application

[19] The FW Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and the submissions of the Applicant and I do not repeat them here. On the basis of the limited information before me however, there appears to be little difference in the factual circumstances as described by both parties – the critical matters, it appears, go to if the conduct engaged in by the Applicant provided a valid reason for dismissal and the procedural issues associated with the dismissal. Having said this there is a disputed factual matter as to the language said to have been used by the Applicant. Whilst the Applicant agrees he used the language in question he says it was not on the day of the incident but at an early date.

[20] It is not possible to make any firm or detailed assessment of the merits although, to the extent they were put to me the Applicant does not appear to have a strong case given his admission as to the conduct. Whilst the merits weigh slightly against the Applicant this has not been a significant factor in my decision.

Fairness as between the person and other persons in a similar position

[21] Nothing was put by either party on the question of fairness. I consider this to be a neutral consideration in the present matter.

Conclusion

[22] Having regard to the matters I am required to take into account under s.394(3) of the FW Act, 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) of the FW Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An order 4 to this effect will be issued at the same time as this decision.

COMMISSIONER

Appearances:

E. Bates on his own behalf.

P. Gangur for the Respondent.

Hearing details:

2020.
Melbourne via telephone:
July 21.

Printed by authority of the Commonwealth Government Printer

<PR721179>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltdt/as Richmond Oysters [2018] FWCFB 901 at [39].

 4   PR721180.