Gregory Shaw v Wulguru Steel Pty Ltd

[2023] FWC 2721

[2023] FWC 2721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gregory Shaw
v

Wulguru Steel Pty Ltd

(U2023/8490)

DEPUTY PRESIDENT LAKE BRISBANE, 19 OCTOBER 2023

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application dismissed.

1. Gregory Shaw (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with Wulguru Steel Pty Ltd (the Respondent).

1. The Applicant’s employment with the Respondent commenced on 18 November 2022. The Applicant states he was dismissed on 4 August 2023 and that his dismissal took effect on 14 August 2023.

1. The Applicant lodged his application on 6 September 2023, 1 day outside the statutory 21-day time limit prescribed by s.394(2) of the Act.

1. The question before me is therefore whether the Applicant should be granted an extension of time to lodge his application pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.

1. Directions were issued to determine this question and material was filed by each party. A hearing was held before me on 5 October 2023.

Should a further period be granted?

1. Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

“(3)       The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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 like position.”

1. The test of ‘exceptional circumstances’ establishes a high bar for an Applicant to meet.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

“[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. Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

1. For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.

Consideration

Reason for the delay (s.394(3)(a))

1. The Act does not specify what ‘reasons for delay’ might suggest, however it is settled that the explanation for such a delay must be an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]

1. It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

1. In Giles v Coal Train Australia Pty Ltd, Deputy President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.[7]

1. The Applicant submitted that he tried to file his application within the 21-day time frame but had technical difficulties around lodging his application.

1. The Applicant states that he spent the 21 day-time frame reviewing online legal advice and viewing other cases of unfair dismissal and preparing notes and downloading sample applications to review. He then proceeded to apply for unfair dismissal through the Fair Work Commission website.

1. The Applicant states that he navigated through the Fair Work Commission website in the days leading up to applying and registered an account with the Online Lodgement Service on 5 September 2023 near the 11:59pm cut off time. The Applicant stated that there was an error when he proceeded to upload documents before the time limit and the website was completed.

1. The Applicant stated that his application was not visible on the website in draft form or completed application. The Applicant sent a copy of the Fair Work Ombudsman website to re-register his account.

1. The Applicant attempted to lodge his application at 4:50pm the next day stating that there was no longer a technological delay.

1. If there are technological factors, it is appropriate for the Applicant to demonstrate that he attempted to mitigate these factors especially if he knew his application was not ‘visible on the website’ and knew that the Application was not lodged. I note that leaving an application at the last moments of the 21-day calendar time frame alone is not a sufficient reason for delay. The Applicant cannot ‘simply sit on his hands and do nothing’.[8]

1. The Fair Work Commission website (through which the Applicant had lodged the application electronically) clearly states that ‘you must apply within 21 days after the date of your dismissal. It is important to get your application to us on time. You can apply even if you don’t have all the information yet. You can send us more details and supporting documents after you have applied’.

1. The Fair Work Commission website (through which the Applicant had lodged the application electronically) notes that the Application could have been sent to [email protected] if there were any technical issues or if the Applicant was unsure that his application was lodged.

1. The Applicant appeared to receive an email with the Fair Work Ombudsman asking to reset his account. The evidence does not support he was filing his unfair dismissal application with the Fair Work Commission on time. The Fair Work Commission and the Fair Work Ombudsman have different lodgement portals and are separate from each other.

1. This consideration does not weigh in favour of a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

1. The Applicant was aware of his dismissal on 4 August 2023 when he received his termination letter.

1. This consideration does not weigh in favour of a finding of exceptional circumstances.

Action taken to dispute the dismissal (s.394(3)(c))

1. The Applicant did not dispute the dismissal.

1. This consideration does not weigh in favour of a finding of exceptional circumstances.

Prejudice to the employer (s.394(3)(d))

1. The Respondent did not address that an extension could potentially cause a degree of prejudice. I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

1. In Kornicki v Telstra-Network Technology Group,[9] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.”

1. Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. I consider this factor as a neutral consideration as it is sufficient for the Commission to establish the substantive application was not without merit.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

1. The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]

1. In Volchkov v Cantek Pty Ltd [2018] FWC 4710, Commissioner Cirkovic notes that the Applicant did ‘not simply sit on his hands and do nothing.’ The Applicant made a phone call with the Commission prior to the 21-day timeframe and was informed that the Commission would contact him back regarding his credit card details.

1. In Newcombe v ACT Couriers Pty Ltd [2023] FWC 2591, Deputy President Dean approved an extension of time when the Applicant demonstrated he attended the Commission office to file his paperwork and tried to lodge the application on numerous times over several days to submit the Application during the 21-day time period and was only able to lodge his application with the help of his sister.

1. In Cedric Moses Kato v Hub24 Management Services Pty Ltd,[11] Commissioner Ryan found in the instance of technological difficulties that the absence of an acceptable explanation without evidence to support the exceptional circumstance weighs against a conclusion of acceptable circumstances even when an application is 1 minute late.

1. In consideration of the above matters, the Applicants who were granted an extension of time took measures before the 21-day timeframe to ensure their application was lodged on time.

1. In this instance, the Applicant knew there were some technological issues and did not take steps to demonstrate his urgency to lodge his application until he finished work the next day.

1. I find that the Applicant has not put on enough evidence to establish his attempts to lodge his application on time compared to the above matters and as such this consideration does not weigh in favour of a finding of exceptional circumstances.

Conclusion

1. Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.

1. I order that the jurisdictional objection that the application was lodged out of time is upheld and the application be dismissed with no extension of time being granted.

DEPUTY PRESIDENT

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 at [16].

[5] [2018] FWCFB 901 at [39].

[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

[7] Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at [38].

[8] Volchkov v Cantek Pty Ltd [2018] FWC 4710 at [7].

[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

[11] [2023] FWC 1377 at [16] referring to Stogiannidis v Victorian Frozen Food Distributors Pty Ltd[2018] FWCFB 901 at [39].

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