Geffery Chapman v Lt Joint Venture Pty Ltd

[2017] FWC 4486

[2017] FWC 4486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Geffery Chapman
v
LT Joint Venture Pty Ltd
(U2017/7411)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 31 AUGUST 2017

Application for an unfair dismissal remedy – jurisdictional issue – whether extension of time in which to apply should be allowed – Fair Work Act 2009 (Cth) ss.394(2), (3) – whether exceptional circumstances exist – exceptional circumstances not established – application dismissed.

[1] Mr Geffery Chapman (the applicant) filed an application in accordance with Part 3-2 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy against his former employer, Lendlease Tyco Joint Venture Pty Ltd (the respondent).

[2] Section 394 of the FW Act provides that applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect; or within such further period as the Fair Work Commission (the Commission) allows. Subsection (3) indicates that the Commission:

‘…may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.’

[3] The applicant filed his application on 10 July 2017. The applicant was dismissed on 14 June 2017. This means that the application was filed five days outside the 21-day period prescribed by s.394(2)(a) of the FW Act.

[4] The issue to be determined is whether I should allow a further period in which the applicant may make his application.

[5] As s.394 makes clear, an extension of time can only be granted if the Commission is satisfied that there are exceptional circumstances present.

[6] What constitutes ‘exceptional circumstances’ was considered by a Full Bench in Nulty v Blue Star Group P/L: 

‘[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.’ 1

[7] The parties filed written material. A hearing was conducted earlier today (31 August 2017); however, the applicant failed to appear. The respondent was content to rely on its written material, and tendered the witness statement of Adam Edwards, Senior Human Resources Advisor. 2 I have accordingly based this decision on the written material filed by the parties.

[8] Mr Chapman stated that following his termination he was not feeling well and did not think he could handle any more stress. In his words:

‘I also was waiting for my pay which they didn’t pay and finalised everything holiday pay and wages, I was really concerned they wouldn’t pay correctly but soon as I had the final pay I spoke with fair work and got directions of the process and started the ball rolling but took another week for them to send me the paper work showing what I was paid after several calls I made to get it which I wanted to put in the application if it wasn’t correct … (3 weeks) after I was dismissed. They I had finally got everything together. But by this time iv nearly run out of time to lodge the paper work, im not sure if they delayed in the final paper work to only have the lodging of a unfair dismissal application.

I also filled out a application online and created a profile which to my knowledge id done everything correctly, due to a question I needed to ask I called fair work, spoke with a lady who tried to look me up. Trying to find me the lady said it failed to lodge and hadn’t gone through she advised I need to lodge and hadn’t gone through she advised I need lodge it and would need to have a application for extention of time…’

[9] It appears from this that the applicant:

• felt unwell and stressed following his dismissal;



• took no action to lodge his unfair dismissal application until he had received the paper work concerning his final termination payment; and



• thought he had filed an online application and ‘created a profile’ but only realised his application had not been received when he spoke over the phone with someone from the Commission.

[10] There was no reason why the applicant needed to wait to confirm his final termination pay before lodging his unfair dismissal application. Whether his final pay was correct or not has no bearing on whether his dismissal was unfair. I note that the payment of the applicant’s accrued entitlements and payment in lieu of notice was processed on 28 June 2017.

[11] The applicant may indeed have felt unwell and stressed following his dismissal – but there is no evidence that this was so severe as to render him incapable of pursuing his unfair dismissal claim.

[12] The Commission’s website provides clear and extensive information about how to lodge an application for an unfair dismissal remedy. It states that:

‘Applications can be lodged by email, online, by express post, or in person at any Fair Work Commission office.’

[13] It adds:

‘If you cannot lodge by any of the above means, an application can be made over the phone on 1300 799 675. However, a telephone application cannot proceed until a complete and signed application is received, along with either payment or a fee waiver application.’

[14] The applicant does appear to have registered on the Commission’s website on Friday 7 July 2017. I note that even this was still outside the 21-day timeframe. Moreover, the website includes the following:

‘You don’t need to register or have an account to lodge your application online, but you will need to provide a valid email address. You will receive an email confirmation once your application has been received.’

[15] The website also includes the following:

‘How do I know if my application has been received?

You will receive an automated email confirming that your application has been successfully lodged.’

[16] Readers of the website are advised that they will need to pay an application fee at the time of lodgement. There is no evidence that the applicant paid the application fee or sought a waiver prior to 10 July 2017.

[17] I am satisfied that the applicant did not lodge an unfair dismissal application prior to 10 July 2017, nor did he have any reasonable basis to think that he had done so.

[18] It follows that the applicant did not have a good reason for the delay in filing his application.

[19] It is not in contest that the applicant was aware of his dismissal on 14 June 2017.

[20] There is no evidence that the applicant took any action to dispute the dismissal prior to filing his application.

[21] There is no additional prejudice to the employer beyond that which normally applies in relation to any application for an unfair dismissal remedy.

[22] I do not have sufficient evidence to find either that the application is without merit or alternatively, has particularly strong merit.

[23] There is no evidence relating to fairness between the applicant and other persons in a similar position.

[24] Having regard to all these findings, I conclude that there are no exceptional circumstances that would justify allowing a period of time beyond the 21 days specified in the FW Act for Mr Chapman’s application, and I decline to do so.

[25] His application is accordingly dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

(There was no appearance for the applicant.)
A Powter for LT Joint Venture Pty Ltd.

Hearing details:

Sydney.

2017.

August 31.

 1   [2011] FWAFB 975.

 2   Exhibit LT1.

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