Graham Michell v Qube Logistics (Rail) Pty Ltd

[2020] FWC 5834

[2020] FWC 5834

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graham Michell
v
Qube Logistics (Rail) Pty Ltd
(U2020/13634)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 2 NOVEMBER 2020

Application for unfair dismissal remedy – Jurisdiction – Extension of Time – Application dismissed.

Introduction

[1] Graham Michell (applicant) commenced employment with Qube Logistics (Rail) Pty Ltd (respondent), on or about August 2017. The reason given by the respondent for the decision to terminate the applicant’s employment was for serious and wilful misconduct. The applicant applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The applicant contacted the Fair Work Commission (Commission) on 16 September to make enquiries on how to lodge an application for an unfair dismissal remedy and tried to lodge his application on 17 September. The applicant made enquiries on 14 October 2020 with the Commission to obtain the matter number for the application where he was advised that no application had been received. The applicant subsequently lodged his application again on 14 October 2020. Upon doing so, the applicant checked his outbox to see whether his email had been sent where he discovered that the emails contained a message indicating that his application had failed. It was at this point that the applicant also noticed that all emails he had attempted to send in relation to the matter all contained the same error message.

[2] I have had regard to all written submissions and oral submissions put to me during the Jurisdiction (Extension of Time) Conference on 28 October 2020.

[3] I reserved the right to publish written reasons for decision, and this is my decision.

Application was filed outside the statutory timeframe

[4] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect as required by s.394 of the Act.

[5] The Applicant’s employment was terminated by the Respondent with effect from 28 August 2020. Based on a termination date taking effect on 28 August 2020, the application for a remedy should have been lodged by no later than 18 September 2020.

[6] The application was therefore lodged outside of the time prescribed. The application was made in effect 26 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[7] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay,

•  whether the Applicant first became aware of the dismissal after the date it took effect,

•  any action taken by the Applicant to dispute the dismissal,

•  prejudice to the Respondent including prejudice caused by the delay,

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[8] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 1

[9] 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 or unprecedented, nor do they need to be very rare. 2 I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

[10] I now consider these matters in the context of the Application.

a) Reason for the delay

[11] 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. 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] In this case, the applicant has referred to a number of matters as explanation for the reason for the delay. Firstly, the applicant says he is not computer literate. Secondly the applicant says he made calls to the Commission on 16 September 2020 about lodging and application. Thirdly the applicant made an attempt to submit the application on 17 September 2020. I note that this was shortly before the last day he was able to submit an application therefore it can be said that the application was made at the last minute. The applicant explained this on the basis that he had talked to others about the matter and then subsequently made up his mind with respect to lodging the application. However, the applicant could have talked to others at any time and did not do so. The applicant did not make inquiries to the Commission to receive an update on the status of his application until the 14 October 2020, and he was advised that is application had not been successfully lodged. The applicant did not check his emails until he spoke to the Commission on the 14 October 2020. It would have perhaps been prudent for the applicant to check his emails regularly to make sure that his application had been properly filed given that he was not, on his own admission, computer literate. A prudent applicant might also have contacted the Commission before 14 October 2020 to ascertain whether the application had been filed if there were any doubts.

[13] There is information on the Commission website with respect to lodgement of applications which provides:

“Note that if you send us your application by email it is not considered lodged until we send you an email acknowledging lodgement (see Rule 14 of the Fair Work Commission Rules 2013). If you haven't received an acknowledgement email within 2 business days you should contact the Commission office where you sent your application.”

[14] It appears that the applicant did not read this information on the Commission website and did not contact the Commission’s office within 2 business days after he sought to submit the application on 17 September 2020.

[15] I also note that the applicant was late with lodging his submissions in this matter and in my view a satisfactory explanation for that lateness was not provided. This may or may not be a relevant consideration.

[16] Overall the applicant's explanation for a reasonable delay has a number of problems. First, it does not seem prudent to leave lodgement of the application to the last minute on 17 September 2020. Secondly, it does not seem prudent to not contact the Commission until 14 October 2020 to check the application’s status. Thirdly, it is not prudent to not check emails until after 14 October 2020. Fourthly, it is not prudent to not read the Commission website and follow the guidance provided therein in relation to lodgement by email given that the applicant is, on his own version of events, not computer literate.

[17] Overall I am not satisfied that a satisfactory explanation for the delay in the application has been provided. That counts against an extension of time being granted.

b) Whether Applicant first became aware of the dismissals after the date it took effect

[18] It is agreed that the applicant became aware of the dismissal on the 28 August 2020.

c) Action taken by the Applicant to dispute his dismissal

[19] It is agreed that the applicant did not take any action to dispute the dismissal.

d) Prejudice

[20] It is agreed that there is no prejudice to the employer resulting from the delay.

e) Merits of the application

[21] As to the merits of the application, this is a neutral consideration in this matter. The merits would require full hearing of the circumstances of redundancies and restructure and there is no evidence submitted in relation to this.

f) Fairness as between the Applicant and other persons in a similar position

[22] It is agreed that this is a neutral consideration.

Conclusion

[23] Statutory time limits applying to the exercise of a person’s ability to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that such applications should be taken promptly to ensure certainty. Time limits seek to balance the ability 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 ability to bring the action will be lost.

[24] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[25] I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to this effect is contained in PR724155.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724154>

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

 2   Ibid.

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