Eric Atonio v Califam Constructions (Aust) Pty Ltd

[2020] FWC 3547

[2020] FWC 3547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eric Atonio
v
Califam Constructions (Aust) Pty Ltd
(U2020/5906)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 8 JULY 2020

Application for an unfair dismissal remedy – application made outside of the time prescribed in s.394(2) – consideration whether to allow a further period within which application should be made – whether there are exceptional circumstances – not satisfied there are exceptional circumstances – no basis to consider exercising discretion to allow a further period to make application – application dismissed.

[1] Mr Eric Atonio (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). He commenced employment with Califam Constructions (Aust) Pty Ltd (Respondent) on or about 12 September 2019 as an Excavator Operator.

[2] The Applicant’s employment was terminated by the Respondent with effect from 3 April 2020. The reason given by the Respondent for the decision to terminate the Applicant’s employment was the Applicant’s continual refusal to follow the Respondent’s lawful and reasonable directions regarding the location of work.

[3] The Applicant lodged his application by registered post on 29 April 2020. Section 394(2) of the 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 24 April 2020. The application was therefore lodged five days after that period had elapsed.

[4] The matter was listed for directions hearing on 18 June 2020, on which date I made directions for the filing of submissions addressing the issue of whether a further period should be allowed for the application to be made. The Respondent made submissions opposing the grant of an extension of time. At the time of this Decision the Applicant has not, despite a direction to do so, filed any material in relation to the application for an extension of time.

[5] I heard the matter on 6 July 2020. The Applicant did not participate in the hearing. My Associate attempted to contact the Applicant by telephone but the call went unanswered. At the conclusion of the hearing my Associate emailed the Applicant indicating, inter alia, that he had until 12 noon on 7 July 2020 to explain his non-attendance at the hearing and file any submissions in support of his application for an extension of time. It was made plain that if no submissions were received, the matter would be determined on the basis of the material filed to date. At the time of this Decision, the Applicant has not responded to the email of 6 July 2020.

[6] The 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

[7] 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

[8] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[9] Section 394(3) requires that, in 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.

[10] 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.

Reason for the delay

[11] The Act does not specify what reason or reasons 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

[12] As noted above, the Applicant has not filed any material in relation to the application for an extension of time and did not participate in the hearing. In the result, the Applicant has not raised any matters as reasons for the delay in lodging the application. The only explanation that can be inferred from the material filed is that the application was lodged out of time because it was sent to the Commission by registered post and was redirected. This much is clear from the envelope used to post the application. As a result, the application was not received by the Commission until 29 April 2020, five days after the time limit prescribed in s.394(2) of the Act had elapsed.

[13] I am not satisfied that the reason identified above constitutes an acceptable explanation for the delay. Ultimately, Mr Atonio sent his application for an unfair dismissal remedy to the Commission by registered post in circumstances where the Commission’s website contains information discouraging an individual from lodging an unfair dismissal application by this method. Instead, applicants are advised that applications should be lodged electronically, via the Commission’s online lodgement service, email or fax. Mr Atonio could have sent his application by electronic means, or he could have sent it by express post. Either of these two methods would have ensured that the application was made within the time prescribed. The method chosen by Mr Atonio was, with respect, entirely within his control, and by relying on registered post to deliver an unfair dismissal application, he took the risk that his application would not reach its intended destination within the time prescribed.

[14] In the circumstances and absent any explanation for the delay proffered by the Applicant, I am not satisfied that there is an acceptable explanation or reason for any period of the delay. Consequently, this is a matter that weighs heavily against the Applicant in this case.

Whether the person first became aware of the dismissal after it had taken effect

[15] The Applicant was notified of the dismissal on 1 April 2020, two days prior to it taking effect. That this is so weighs against the Applicant because he had the benefit of the full 21-day period to lodge an application.

Action taken to dispute the dismissal

[16] On the material before me, I cannot identify any steps taken by the Applicant to dispute the dismissal other than the application the subject of this Decision. I therefore consider this to be a neutral consideration.

Prejudice to the employer

[17] I cannot identify any prejudice that would accrue to the Respondent if I were to allow a further period within which the application could be lodged. The Respondent in its submissions indicates that prejudice would accrue to the employer if a further period within which to lodge the application were allowed but does not identify the precise nature of the prejudice. The mere absence of prejudice is not a factor by itself that would point in favour of the grant of an extension of time. The absence of prejudice does however favour the Applicant and I would attribute this factor a slight weighting.

Merits of the application

[18] I am required to take into account the merits of the application in considering whether to extend time. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s.396(a) makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. Nonetheless an assessment of the merits is required. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[19] The reason for the dismissal relates to a refusal to follow the Respondent’s directions regarding the location of work. On the basis of the material before me it appears that the Applicant had some history of refusing directions by his employer to travel to certain locations of work. According to the application form, on one particular occasion the Applicant refused to travel to a work location 88km from his home on the basis that he was recovering from ill health. The Respondent contends that it was a condition of the Applicant’s employment that he may be required to work at any construction site within the greater Melbourne area and that the Applicant had continually refused to comply with lawful and reasonable instructions relating to the location of work.

[20] In essence, the Applicant’s contention appears to be that the Respondent summarily dismissed him without prior warning. According to the Respondent, the Applicant’s continual refusal to comply with a lawful and reasonable instruction given by the Respondent consistent with his contract of employment constituted serious misconduct.

[21] Overall, on the limited material, it appears that the substantive merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits except to say Mr Atonio has in some respects at least an arguable case, and the Respondent a prima facie defence. It appears to me therefore, that the application is not without merit. That is not to suggest that it would succeed, but I am satisfied that there is at least some merit which would give the Applicant a justifiable reason to pursue his unfair dismissal remedy application. That this is so weighs slightly in the Applicant’s favour in assessing whether there are exceptional circumstances.

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

[22] 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. However, cases of this kind will generally turn on their own facts.

[23] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral

consideration.

Conclusion

[24] 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.

[25] Having regard to the matters I am required to take into account under s.394(3) I am not satisfied that there are exceptional circumstances in this case. In my view, this is so, whether the various circumstances are considered individually or together. There is no satisfactory explanation for the delay. The Applicant did not bother to file material to explain the delay nor attend the hearing to consider, inter alia, the reason for the delay and whether time should be extended. This factor, in the circumstances weighs significantly against a conclusion that there are exceptional circumstances. In the circumstances of this case, the absence of a reason for the delay outweighs other matters that point the other way. I have concluded that the application for a remedy is not without merit and that there is no identifiable prejudice that would accrue to the employer. These factors weigh slightly in favour of the Applicant. The other matters which I am required to take into account either weigh against a conclusion that there are exceptional circumstances or are neutral for the reasons stated. When I consider each of the matters set out in s.394(3), in the context of the evidence in this case, attribute weight as I have done and look at those circumstances individually and collectively, I am not satisfied that there are exceptional circumstances.

[26] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to consider exercising my discretion to allow an extension of time. I decline to allow a further period under s.394(3). However, I should indicate that even if I were satisfied that exceptional circumstances existed in this case, the failure by the Applicant to comply with the Commission’s directions and his failure to attend the hearing without explanation, are powerful discretionary factors weighing against the exercise of my discretion to allow a further period within which the application might be lodged. The application to allow a further period within which to lodge the application is dismissed. The substantive application for an unfair dismissal remedy must also be dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant

S Jackson, solicitor for the Respondent

Hearing details:

2020

Melbourne (by video)

6 July

Final written submissions:

Respondent, 3 July 2020

Printed by authority of the Commonwealth Government Printer

<PR720787>

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

 2   Ibid

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]