Heath Andrew Middleton v Veida Pty Ltd - [2022] FWC 3120

[2022] FWC 3120

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Heath Andrew Middleton

Veida Pty Ltd

(U2022/10324)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 1 December 2022

Application for an unfair dismissal remedy – application made outside 21-day timeframe – circumstances not exceptional.

Mr Heath Andrew Middleton made an application for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 25 October 2022. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3). The respondent, Veida Pty Ltd, raised several objections to the application, including that the application was made outside the statutory timeframe. The respondent opposes the grant of an extension of time and contends that Mr Middleton has not demonstrated exceptional circumstances in support of his application.

For the reasons that follow, I am not satisfied that there are exceptional circumstances. The respondent’s jurisdictional objection is upheld and Mr Middleton’s application for an unfair dismissal remedy is dismissed.

Background

Mr Middleton commenced employment with the respondent on or around 6 October 2021 and held the position of Business Development and Sales Manager.[1]

On 30 September 2022, Mr Middleton was dismissed because his position was made redundant.[2] The redundancy followed a review of the respondent’s operational requirements which identified that the role of Business Development and Sales Manager was surplus to requirements, notwithstanding that Mr Middleton was competent in fulfilling the requirements of the position.

Mr Middleton was paid one week in lieu of notice. Mr Middleton contends that he was entitled to four weeks’ notice in accordance with his contract of employment.[3] This dispute underpins the application to the Commission.

Extension of time

Mr Middleton’s employment with the respondent ended on 30 September 2022. It follows that the 21-day statutory timeframe for filing an application for an unfair dismissal remedy expired on 21 October 2022. Mr Middleton’s application was received by the Commission on 25 October 2022 and was therefore made on the fourth day after the 21-day statutory timeframe had lapsed.

The Commission has the power pursuant to s 394(3) of the Act 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 the Full Bench in Nulty v Blue Star Group Pty Ltd.[4] 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 particular significance, when taken together can be considered exceptional.

Under s 394(3) of the Act, the matters the Commission must take into account in order to determine…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 3120
Decision Date: 1 December 2022

CaseChat Overview and Summary

In this case, Heath Andrew Middleton sought an unfair dismissal remedy against Veida Pty Ltd, the company that dismissed him. The dismissal was made on 30 September 2022, and the statutory 21-day period for lodging an application for an unfair dismissal remedy ended on 21 October 2022. Mr Middleton lodged his application on 25 October 2022, which was four days outside the statutory timeframe. The respondent, Veida Pty Ltd, raised objections to the application, primarily that it was made outside the statutory timeframe and that there were no exceptional circumstances justifying an extension of time. The Deputy President, Millhouse, was required to determine whether exceptional circumstances existed to warrant an extension of the statutory timeframe.

In assessing whether exceptional circumstances existed, the Deputy President considered several statutory factors, including the reason for the delay, whether Mr Middleton first became aware of the dismissal after it had taken effect, any action taken by Mr Middleton to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between Mr Middleton and other persons in a similar position. After considering these factors, the Deputy President concluded that none of them weighed in favour of a finding of exceptional circumstances. Mr Middleton's reason for the delay was not deemed acceptable, as he had not provided a credible explanation for the entire delay. Furthermore, Mr Middleton had the full statutory period to lodge his application, and he had not taken any action to dispute the dismissal prior to lodging the application. The merits of the application could not be assessed due to the interlocutory nature of the proceeding. The Deputy President found that none of the statutory factors supported a finding of exceptional circumstances, and therefore, the application for an extension of time was not granted.

As a result of the Deputy President's decision, Mr Middleton's application for an unfair dismissal remedy was dismissed due to the failure to meet the statutory timeframe, and the respondent's objection was upheld. The Deputy President's decision highlights the stringent nature of the exceptional circumstances test, which requires a high threshold to be met for an extension of time to be granted. In this case, the factors considered did not establish exceptional circumstances, and the application was consequently dismissed.

Orders