Herbert Fernando v Weatherbeeta Pty Ltd
[2024] FWC 3176
•18 NOVEMBER 2024
| [2024] FWC 3176 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Herbert Fernando
v
Weatherbeeta Pty Ltd
(U2024/12540)
| COMMISSIONER MIRABELLA | MELBOURNE, 18 NOVEMBER 2024 |
Application for an unfair dismissal remedy
On 21 October 2024, Mr Herbert Fernando (the Applicant) filed in the Fair Work Commission (the Commission) an application for an unfair dismissal remedy (application U2024/12540) pursuant to s.394 of the Fair Work Act 2009 (the Act).
It is not a disputed matter that the Applicant was dismissed on 13 September 2024. Section 394(2) states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or such further period as the Commission allows pursuant to s.394(3). For his application to have been filed within time, the Applicant needed to file before 3 October 2024; however, the application was 19 days late. In order for the application to proceed, the Applicant requires an extension of time.
The Commission may only allow a further period within which to file if it is satisfied that there are exceptional circumstances, taking into account:
· The reason for the delay,
· Whether the person first became aware of the dismissal after it had taken effect,
· Any action taken by the person to dispute the dismissal,
· Prejudice to the employer (including prejudice caused by the delay),
· The merits of the application, and
· Fairness as between the person and other persons in a similar position.
In deciding on whether there are exceptional circumstances, I must consider and give appropriate weight to each of the matters in s.394(3). These are circumstances that are ‘out of the ordinary course, or unusual, or special, or uncommon’ but that ‘need not be unique, or unprecedented, or very rare’.[1]
The matter was dealt with by way of determinative conference on 14 November 2024 at which the Applicant was legally represented. He gave evidence in support of his application. Ms Catherine Stephens, made submissions on behalf of the Respondent.
Relevant factors
Section 394(3)(a) – The reason for the delay
The reason for the delay is one of the factors in s.394(3) that I need to weigh up in assessing whether there are exceptional circumstances in this matter, and the reason itself need not be an exceptional circumstance.
The Applicant submits that the reason for the delay in filing his application originates with a conversation on 2 October 2024 with a customer service officer of the Commission.
The Applicant's evidence is that after having filed a General Protections application, the C2024/7006 application, against Weatherbeeta Pty Ltd (Weatherbeeta) on 30 of September 2024, he received advice on 1 October from legal advisors Marshalls Dent Wilmoth, that he had submitted the incorrect application. They advised that he should have filed an application for an unfair dismissal remedy.
The Applicant says that he consequently made a phone call to the Commission on 2 of October 2024. Further, that during this telephone call, he informed a Commission customer service officer that he had filed the C2024/7006 application in error and advised that it be immediately withdrawn by the Commission. The Applicant’s evidence is that the unnamed person from the Commission on the other end of the phone call replied with words to the effect of ‘we will sort that out for you Mr Fernando.’[2]
At the determinative conference, the Applicant said that he had made the telephone call at about 1pm. In his witness statement he says that subsequent to the telephone call, he filed with the Commission his first unfair dismissal application, the U2024/11742 application. The Commission’s records show that the first unfair dismissal application was filed on 2 October 2024 at 1.04pm.
When questioned at the determinative conference about the time on 2 October 2024 that he filed the C2024/7006 application, the Applicant gave contradictory answers. At first he said it was at around 4pm, then he said at around 1 pm. When he was asked to clarify his response, he said he could not remember what time he had filed it.
The Applicant’s credibility was not assisted by his various responses purporting to explain why he sent an email to the Commission on 9 October 2024 (9 October email), in which he advised that ‘I wanted to withdraw case C2024/7006.’[3]
In his witness statement, the Applicant says that he sent the email because he wanted to:
‘ ..proceed with the First UD Application and that I wanted the GP Application to be withdrawn (on 2 October 2024) and was surprised that the representations made in the 2 October 2024 Call had not been actioned by the FWC.’ [4]
In the 9 October email, the Applicant does not mention the 2 October 2024 telephone conversation. When questioned at the determinative conference about his reasons for sending the 9 October email, the Applicant said words to the effect that during the 2 October phone call he was told by the Commission that he could only withdraw the C2024/7006 application when it had been listed. At first the Applicant contended that this suggested cause of action was included in his witness statement, but later conceded that it was not.
At the determinative conference the Applicant’s representative advised that the Applicant’s telephone records indicate that he had called the Commission on 2 October 2024. Even if this document had been tendered, and assuming the phone number was one connected to the Commission, it is not evidence of any conversation or the contents of any purported conversation.
I do not find the Applicant’s evidence regarding the 2 October 2024 telephone conversation in any way credible and find that he was not advised by the Commission on 2 October 2024 that his C2024/7006 application would be withdrawn, or in the alternative that it could only be withdrawn when it had been listed.
Firstly, there is no record in the Commission of a request to withdraw the C2024/7006 application on 2 October 2024. Secondly, the Applicant’s evidence is contradictory. In his witness statement he says that he was advised by a Commission customer service operator that ‘we will sort that out for you Mr Fernando’, but at the determinative conference he said that the advice he had been given by the customer service operator was that he could only withdraw the C2024/7006 application when the matter had been listed. It is difficult to believe that any Commission customer service operator would give information such as this that is clearly incorrect. In any case, I am of the view that the Applicant made this up in the course of giving evidence at the determinative conference.
On 21 October 2024, an email from Deputy President Clancy’s chambers (the 21 October email) advised the Applicant that the U2024/11742 application was not made in accordance with the Act, because it was a breach of s.725 of the Act. This is because he had made the C2024/7006 application on 30 September and had not withdrawn it until 9 October 2024. In the meantime, the Applicant had filed the U2024/11742 application on 2 October 2024. Of note, is that the Applicant did not respond to the 21 October email to deny that he had breached s.725 of the Act.
The 21 October email also includes information that the 21 day timeframe for lodging the application is subject to the Commission being satisfied that there are exceptional circumstances.
The Applicant says he acted on the advice in the 21 October email by withdrawing application U2024/11742 and lodged the second unfair dismissal application, the U2024/12540 application, out of time. The U2024/12540 application is the subject matter of this decision.
It is apparent to me that the Applicant lodged the U2024/11742 application, oblivious to the fact that he was breaching s.725 of the Act. The intention of the various versions of a purported telephone conversation on 2 October 2024 was to shift the blame for the late filing to an unnamed operator in the Commission as a way of explaining the reason for the delay.
The reason for the delay arose out of the Applicant’s ignorance of the law. That does not support a finding of exceptional circumstances.
The Applicant has not established an acceptable reason for any part of his delay in lodging his application. This factor weighs against the application for an extension of time.
Section 394(3)(b) – Whether the Applicant first became aware of the dismissal after it had taken effect
The Applicant does not dispute that he became aware of his dismissal when it took effect. I will treat this as a neutral consideration.
Section 394(3)(c) – Any action taken by the person to dispute the dismissal
Besides filing this late application, the Applicant disputed his termination by way of:
· An email to the Respondent on 16 September 2024 disputing his termination seeking clarification of the reasons for dismissal.
· Correspondence from the Applicant’s legal representative Marshalls, Dent and Wilmoth Lawyers between 20 September 2024 and 1 October 2024 and Weatherbeeta disputing his termination.
· Filing an application pursuant to s.365 of the Act on 30 September 2024 and filing an application for an unfair dismissal on 2 October 2024.
I am satisfied the Applicant took some action to dispute the dismissal.
This factor counts in favour of the Applicant.
Section 394(3)(d) – Prejudice to the Respondent
The Respondent has not made any submissions or put on any evidence regarding this factor.
The Applicant submits that the Respondent would suffer no prejudice because they had been on notice since 16 September 2024 that the Applicant disputed the dismissal and in the event the parties did not reach a settlement in the matter, the Applicant would take legal recourse.
I consider this to be a neutral consideration.
Section 394(3)(e) – The merits of the application
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested, but the merits are nonetheless a factor I am required to take into account in assessing whether there are exceptional circumstances.
The Respondent dismissed the Applicant for multiple acts of alleged serious misconduct, including for an allegation that the Applicant fraudulently claimed he was a victim of identity fraud.
Amongst other matters, the Applicant submits that he has not been dismissed for a valid reason, that he has not received any warnings regarding performance and that he was dismissed whilst on sick leave.
The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
I do not reflect on the merits of the matter in any certain way and, at their highest, they must be taken to be of neutral weighting in my consideration of all relevant factors.
Section 394(3)(f) – Fairness as between the person and other persons in a similar position
Neither the Applicant nor the Respondent made submissions regarding fairness as between him and other persons in a similar position.
In all the circumstances I will treat it as a neutral consideration.
Are there exceptional circumstances?
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.[5]
Having regard to all the matters in s.394(3) of the Act and the foregoing, I am not satisfied that there are exceptional circumstances in this case such that I allow the Applicant additional time within which to make his application.
Conclusion
Having found that there are no exceptional circumstances in this case, I cannot grant an extension of time to allow the Applicant to file beyond the statutory period. Accordingly, the application is dismissed.
An order to this effect will be issued with this decision.
COMMISSIONER
[1] Nulty v Blue Star Group[2011] FWAFB 975 (Nulty), [13].
[2] Exhibit A1 of the Court Book.
[3] Exhibit A1 of the Court Book.
[4] Exhibit A1 of the Court Book.
[5] Nulty at [15].
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