Ian Buxton v Annex Foods
[2024] FWC 2290
•29 AUGUST 2024
| [2024] FWC 2290 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ian Buxton
v
Annex Foods
(U2024/8697)
| COMMISSIONER MIRABELLA | MELBOURNE, 29 AUGUST 2024 |
Application for an unfair dismissal remedy – application filed out of time – extension of time not granted.
On 26 July 2024, Mr Ian Buxton (the Applicant) filed in the Fair Work Commission (the Commission) an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).
The Applicant was dismissed on 28 June 2024, and this is not a disputed matter. 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 20 July 2024; however, the application was 7 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 earlier today at which the Applicant gave evidence in support of his application. Ms Erin Molinaro, Human Resources Manager for the Respondent, gave evidence for 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 as a result of the dismissal, he experienced ‘excessive high blood pressure and anxiety’ and that this resulted in the delayed lodgement of the application. In support of his application, he further gave evidence at the determinative conference that the dismissal exacerbated his high blood pressure, that he had a burst blood vessel in his eye and could not drive for around two weeks, that he was ‘on the verge of having a stroke’ and that he had to see a psychologist because he had ‘trust issues’.
While I accept that stress accompanies dismissal and that the Applicant may have experienced high blood pressure, anxiety and some, if not all, of the other medical issues asserted during some or all of the period of the delay, absent any medical evidence detailing the impact these illnesses had on the Applicant’s capacity to lodge the application, I do not accept the reasons given as preventing the Applicant from lodging the application on time or at a time earlier than the date on which this application was lodged.
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. The Respondent submits that the Applicant was on notice that he would be dismissed from at least 15 September 2023, the date on which a meeting was scheduled to advise the Applicant his employment could be terminated. 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 on the day of his dismissal verbally told the Respondent he would ‘appeal [the Respondent’s] decision on the grounds of it being unfair and unjust’.[2] On the same day, the Applicant also sent an email to the Respondent advising, amongst other things, that he ‘will be lodging a Claim for Unfair Dismissal in that I was bullied and harassed for several days by a fellow employee.’[3]
I am satisfied the Applicant took some action to dispute the dismissal. Advising the Respondent on the day of dismissal that the Applicant believed his dismissal was unfair and that he would be ‘lodging’ with the Commission is an expression of intention to challenge the dismissal.
In my view, given the limited attempts to progress the issue, this is a neutral factor. In the alternative, it counts in favour of the Applicant.
Section 394(3)(d) – Prejudice to the Respondent
The Respondent concedes that it would not suffer prejudice if an extension of time were to be granted in this matter. They submit, however, that the mere absence of prejudice is an insufficient basis to grant an extension of time as per the decision in Brodie-Hanns v MTV Publishing Ltd.[4] The Applicant made no submissions regarding this factor.
Accordingly, 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 submits the Applicant was dismissed for serious misconduct. The Respondent submits that, following a workplace investigation, they substantiated allegations that the Applicant spoke aggressively to a colleague and threatened that colleague with violence.
The Applicant submits that he was the victim of bullying and harassment by this colleague, who he submits instigated the incident that led to his termination.
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
The Applicant made no submissions regarding fairness as between him and other persons in a similar position.
The Respondent submits that this is not a relevant consideration and is therefore a neutral factor.
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
Appearances:
The Applicant on his own behalf.
Ms N. Raymond for the Respondent.
Hearing details:
Melbourne (by video)
29 August
[1] Nulty v Blue Star Group[2011] FWAFB 975 (Nulty), [13].
[2] Exhibit A1 of the Court Book.
[3] Exhibit R3 of the Court Book.
[4] (1995) 67 IR 298, 299-300.
[5] Nulty at [13].
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