Ferdinand Jaraula v The Trustee for v & v Unit Trust & Vernon Walsh Pty Ltd t/as v & v Walsh Meat Processors & Exporters

[2023] FWC 974

[2023] FWC 974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ferdinand Jaraula
v

The Trustee for V & V Unit Trust & Vernon Walsh Pty Ltd t/as V & V Walsh Meat Processors & Exporters

(U2023/2453)

DEPUTY PRESIDENT BEAUMONT PERTH, 3 MAY 2023

Application for an unfair dismissal remedy

1. Introduction

1. Mr Ferdinand Jaraula (the Applicant) applied to the Fair Work Commission for an unfair dismissal remedy, having been dismissed by The Trustee for V & V Unit Trust & Vernon Walsh Pty Ltd t/as V & V Walsh Meat Processors & Exporters (the Respondent) on 15 February 2023. The Respondent objected to the application on the ground that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).  This decision deals with the out of time objection.

1. The Applicant concedes his application was filed on 23 March 2023 and was therefore submitted 15 days after the statutory deadline.  The Applicant primarily attributes the delay in filing his application on the late receipt of his letter of termination.  The Applicant acknowledges he was notified of his dismissal on 14 February 2023 by his HR Manager, but says he was told that his letter of termination would be emailed.  The Applicant notes that he was awaiting the arrival of his letter of termination, prior to filing his unfair dismissal application.

1. Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect.

1. It is not contested that the application was made out of time. However, for the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.[1]

1. The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted.

1. However, it is important to note that I allowed an amendment to the name of the Respondent under s 586 of the Act, from the name Craig Mostyn V and V Walsh Pty Ltd to its cited name at paragraph [1] of the decision. Having allowed that amendment, it became apparent that the Respondent may not be a national system employer. Under the Australian Business Register, the Respondent is referred to as an ‘Other Partnership’.[2] Notwithstanding, for the purpose of determining whether to grant an extension of time, it is assumed for this purpose only that the Applicant was an ‘employee’ as that term is understood in s 380 of the Act. In this respect, the approach as outlined in Herc v Hays Specialist Recruitment (Australia) Pty Ltd[3] is adopted and relied upon. 

1. Background

1. The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application were as follows.

1. The Applicant started work at the Respondent’s business on 23 August 2010 as a butcher/bandsaw operator.[4]

1. According to the Respondent, the Applicant’s employment ended because the Applicant was unable to safely carry out the inherent requirements of his role after a long-term workers’ compensation claim was settled by the Respondent’s insurer.[5]

1. The Respondent states that the Applicant was aware that his employment ended on 15 February 2023, and that his final pay was processed on 21 February 2023.[6]

1. The Respondent notes that in respect of the provision of the termination letter, there was a breakdown in its administration process which delayed the delivery of the letter of termination to the Applicant.  However, the Respondent submits that the Applicant was given an Employment Separation Certificate on 22 February 2023 and a payslip dated 21 February 2023 with the details of the termination and the termination payments.  The Applicant does not agree that he received the Employment Separation Certificate on that day. 

1. For his part, the Applicant further states that on 14 February 2023 he was called into a meeting with the HR Manager and another lady who works in the office.[7]  The Applicant said that he was informed that the Respondent wanted to finish his case and terminate his employment (it appears the Applicant had been on a return to work program after his workers’ compensation claim had been settled). 

1. The Applicant said he informed the HR Manager that this was not fair because he was injured within the workplace, had undergone three surgeries, and the doctor had imposed some restrictions.[8]

1. The Applicant said that the Respondent told him that it would terminate his employment with effect straight away on the next day, 15 February 2023.[9]  The Applicant says the HR Manager said he would be emailed his letter of termination the following week.[10]

1. According to the Applicant, at the end of the meeting, the HR Manager told him his employment had been terminated and he was permitted to empty his locker and was advised he was no longer working for the Respondent.[11]

1. The Applicant gave evidence that he received the letter of termination on 19 April 2023, and he had been waiting for that letter so that he could file his application against the Respondent straight away.[12] 

1. Extension of time

1. First, it should be said that it is well-established that a termination of employment takes effect when it has been communicated to the employee.  Both Applicant and Respondent acknowledge that this occurred on 14 February 2023.  However, the Applicant asserts he was awaiting his letter of termination, before filing his application. 

1. In Ayub v NSW Trains (Ayub), the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[13]  The Full Bench explained at paragraph [42] of Ayub:

[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…

1. Insofar as the finding needs to be made, it is evident that the Applicant had a reasonable opportunity to find out he had been dismissed on 14 February 2023 and that his dismissal took effect on 15 February 2023.  In this respect, it is noted that on the Applicant’s own evidence he reports having been informed several times by the HR Manager on 14 February 2023 that his employment had been terminated.  Further, the Applicant’s own evidence reinforces the finding that he knew he had been dismissed on 14 February 2023, as he speaks to having commenced applying for jobs subsequent to his dismissal and then having secured alternative employment on 23 February 2023, only eight days after his dismissal took effect.[14]  

1. Turning then to s 394(2) of the Act, which provides the Commission with authority to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty).[15]  In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.  Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.

1. In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[16] the Full Bench provided clarification regarding the assessment of exceptional circumstances.  While the Full Bench considered s 366(1), the observation remains relevant:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[17]

1. At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances.’ Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’ by reference to those factors at paragraph [4] of this decision. Each of these factors are considered below and were outlined to the parties at the start of the hearing.

3.1      Reason for the delay

1. 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.[18]  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.  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.[19]

1. The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[20]  However, the circumstances from the time of the dismissal are considered to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[21]

1. The primary reason for the delay in making the application was the Applicant’s choice to await the arrival of his letter of termination.  This was despite the Applicant having been informed several times on 14 February 2023 that he had been dismissed, effective 15 February 2023.  The Applicant concedes this point in his witness statement.

1. It could be said that the Applicant was operating under a misapprehension or was ignorant of the law such that he considered he was unable to make an unfair dismissal application absent direct evidence of the termination of his employment.  However, ignorance of the law or a misapprehension, does not provide the basis for a plausible reason for delay.  In the decision of Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’.  It was said that:

In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[22]

1. Similarly, it was always open to the Applicant to seek out information regarding the making of his application.  It is readily apparent from the Form F2 Unfair dismissal application that an applicant is not required to attach a letter of termination to be able to make the application.  It is accepted that ignorance of the law does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[23]  Further, it was apparent at hearing that the Applicant appreciated that there was a 21-day period in which to make the unfair dismissal application. 

1. As observed, the Applicant contends that since his dismissal, he had been applying for jobs to feed and support his three children, as he is a single parent.  While sympathetic to the Applicant’s circumstances, including his responsibilities to his children, the circumstances he refers to are not unusual or uncommon following the loss of employment.  Furthermore, it is observed that the Applicant secured employment some eight days after his dismissal – a period which fell within the statutory period for filing his unfair dismissal application.  It follows that the Applicant’s job hunt does not, on any credible level, provide a legitimate excuse for the delay in making his application. 

1. I am satisfied that the Applicant has not provided a credible explanation for the delay, and this therefore weighs against a finding of exceptional circumstances.[24]

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

1. At all material times from the time the Applicant was notified of his dismissal on 14 February 2023, until the date the unfair dismissal application was made, the Applicant knew he had been dismissed.  I therefore consider this to be a neutral factor.

3.3      Action taken by the person to dispute the dismissal

1. Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[25]  I have considered all submissions and the evidence in this respect and find that there is minimal evidence before me to suggest that the Applicant challenged his dismissal.  Whilst the Applicant purportedly informed the HR Manager that he considered the dismissal unfair, no other steps were taken.  In all the circumstances, I consider this factor neutral. 

3.4      Prejudice to the employer

1. I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances. 

3.5      Merits of the application

1. In Telstra-Network Technology Group v Kornicki,[26] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[27]

1. Evidence on the merits is rarely called at an extension of time hearing.  As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[28]  The merits of the application more generally would need to be scrutinised.  This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.  It is for these reasons that I have concluded this factor to be one that is neutral. 

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

1. The criterion of ‘fairness as between the person and other persons in a similar position’ was considered by the Deputy President in Morphett v Pearcedale Egg Farm,[29] where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[30]

1. I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed, and as such I consider it a neutral consideration. 

1. Conclusion

1. The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension. When the totality of the evidence is considered, I am unpersuaded that the Applicant’s circumstances are ‘exceptional’.

1. While the conclusion reached goes against the Applicant in this case, it should not be read that the care of dependents is undervalued.  It is simply the case that the circumstances presented are not exceptional and it follows that it is not fair and equitable to grant the extension. 

1. The Applicant’s application for an unfair dismissal remedy is therefore dismissed.  An Order[31] will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

F Jaraula, Applicant.
J Beeson for the Respondent.

Hearing details:

2023.
Perth (by telephone):
2 May.

[1] Fair Work Act 2009 (Cth) s 394(3).

[2] ‘Current details for ABN 66 258 009 281’, ABN Lookup (Web Page) < [2022] FWCFB 234.

[4] Witness Statement of Ferdinand Jaraula (Jaraula Statement); Digital Hearing Book, 15 (DHB).

[5] Form F3 Employer Response to unfair dismissal application, [2.2(2)].

[6] Ibid.

[7] Jaraula Statement (n 4); DHB (n 4) 15.

[8] Jaraula Statement (n 4); DHB (n 4) 16.

[9] Jaraula Statement (n 4); DHB (n 4) 16.

[10] Jaraula Statement (n 4); DHB (n 4) 16.

[11] Jaraula Statement (n 4); DHB (n 4) 16.

[12] Jaraula Statement (n 4); DHB (n 4) 16.

[13] (2016) 262 IR 60, 79 [48].

[14] Jaraula Statement (n 4); DHB (n 4) 16.

[15] (2011) 203 IR 1 (Nulty).

[16] (2018) 273 IR 156 (Stogiannidis).

[17] Ibid 165 [38].

[18] Ibid 162 [17].

[19] Ibid 165 [39].

[20] Long v Keolis Downer (2018) 279 IR 361, 371 [40].

[21] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].

[22] Nulty (n 15) 6 [14].

[23] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [14].

[24] Stogiannidis (n 16).

[25] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300.

[26] (1997) 140 IR 1.

[27] Ibid 11.

[28] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [38].

[29] [2015] FWC 8885.

[30] Ibid [29].

[31] PR761564. 

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