Harrison James Mulligan v Creative Built Carpentry Pty Ltd
[2023] FWC 2558
•6 OCTOBER 2023
| [2023] FWC 2558 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Harrison James Mulligan
v
Creative Built Carpentry Pty Ltd
(U2023/8407)
| DEPUTY PRESIDENT DEAN | CANBERRA, 6 OCTOBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Mr Harrison Mulligan (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal from Creative Built Carpentry Pty Ltd (the Respondent).
The Applicant was employed as an apprentice with the Respondent until he was dismissed on 2 July 2023.
The Applicant lodged this application on 4 September 2023. 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 Applicant filed his application some 43 days outside the 21-day period and so his application can only proceed if the Commission grants a further period for it to be made.
The matter was listed for hearing on 5 October 2023. The Applicant appeared and gave evidence on his own behalf. The Respondent was represented by Mr J Regetas.
For the reasons set out below, I find there are no exceptional circumstances and will dismiss the application.
Extension of time
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] 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]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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.
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 this application.
Consideration
Reason for the delay
The Act does not specify what reason for the 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]
The Applicant provided the following explanation as to the delay in making this application:
“The reason this application is being lodged late is because I did not realise I was eligible for unfair dismissal. When my boss Jake first advised me about my work dismissal he said it was because of his financial status. Jake informed me that he will be firing/letting go multiple other employees because he can’t afford to keep everyone on. It wasn’t until I found out more details which will be stated below which has made me place an application for unfair dismissal because I lost a lot of money whilst looking for employment.”
The Applicant said that two weeks after his dismissal he saw a social media post showing Mr Regetas on holidays in Fiji, which made him doubt the validity of the reason he was given.
The second reason the Applicant provided was that he was stuck looking for work for over one month, and when he secured a new role, Mr Regetas provided a poor reference to his new employer and as a result the role he had secured did not eventuate.
The Respondent contended that the reasons provided by the Applicant do not constitute exceptional circumstances and provided details of a text message exchange between the Applicant and his supervisor in which the Applicant, in reference to Mr Regetas, said “He only cares cause I think he thinks I’m gonna take him to fsir (sic) work. That’s why he’s sucking up”. This message was sent by the Applicant on 5 July 2023, well within the 21-day time period.
I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging his unfair dismissal application.
The text message from the Applicant to his supervisor makes it clear the Applicant was aware that he could ‘take’ the Respondent to the Fair Work Commission to dispute his dismissal. Even if this were not the case, ignorance of the timeframe is not exceptional.
There is nothing else in the reasons provided by the Applicant that adequately explain a delay of some 43 days.
This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his dismissal on 2 July 2023. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
While the Applicant said he has made a complaint with the Fair Work Ombudsman about alleged underpayment of wages, he did not take any action to dispute the dismissal until the present application was lodged. This weighs against a conclusion that there are exceptional circumstances.
Prejudice to the employer
The delay is relatively long however I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.
The Applicant asserted his dismissal was unfair because the reason provided to him, ie financial constraints, was not a valid reason, and that the provision of a poor reference to a potential new employer was unfair.
The Respondent submitted that there was a valid reason for the dismissal, and it was carried out fairly.
On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
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.
Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and the test of ‘exceptional circumstances’ establishes a high hurdle.
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
H Mulligan on his own behalf.
J Regetas for Creative Built Carpentry Pty Ltd.
Hearing details:
2023.
By telephone:
October 5.
[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].
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