Ian Ross v Australian Clinical Labs

[2021] FWC 519

[2021] FWC 519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Ross
v
Australian Clinical Labs
(U2021/336)

COMMISSIONER BISSETT MELBOURNE, 5 FEBRUARY 2021

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed

[1] This decision concerns an application by Mr Ian Ross (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant’s employment with Australian Clinical Labs (Respondent) was terminated with effect from 22 September 2020. The unfair dismissal application was lodged on 13 January 2021.

[3] Section 394(2) of the FW 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 period of 21 days ended at midnight on 13 October 2020. The application was therefore filed 92 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.

[4] The FW 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

[5] 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.

[6] 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 the Application.

Reason for the delay

[7] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[8] The FW Act does not specify what reason for 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. 5

[9] The Applicant cited several matters as reasons for the delay in lodging the application. The Applicant said that on 6 October 2020 he contacted a law firm (Gorval Lynch) and spoke to an employee named ‘Chris’. Chris advised the Applicant that he didn’t have much time to file an unfair dismissal application, that there is a 21 day time limit for making such an application and that he should send all the relevant paper work to Gorval Lynch.

[10] The Applicant said that on 8 October 2020 he emailed the appropriate paperwork to Chris. The Applicant says he received a costs agreement from Gorval Lynch on 13 October 2020. He contacted Chris by email on 14, 15 and 16 October 2020 but said he received no reply.

[11] On 20 October 2020 the Applicant went to New South Wales to assist his uncle with contract harvesting. While the Applicant was away his daughter attempted to contact Chris on 22 and 28 October 2020. Chris apparently informed his daughter that it was too late for him to file his unfair dismissal claim. On 3 November 2020 the Applicant says he again emailed Chris but did not receive a reply.

[12] On 13 January 2020 the Applicant contacted his current representative in relation to proceedings he wished to commence in relation to matters associated with the termination of his employment. His current representative advised that he could make an application for unfair dismissal and seek an extension of time in which to do so. The application was lodged that day.

[13] The Applicant therefore submits that representative error was the cause of the delay although concedes it does not explain the full period of the delay.

[14] I accept that representative error may be a relevant factor in considering if exceptional circumstances exist such that an extension of time may be warranted. The error on the part of the Applicant’s first representative only takes the Applicant so far. By 28 October 2020 (or 3 November 2020 when he made his last contact) the Applicant knew his first representative was not going to lodge his unfair dismissal application – this information had been clearly conveyed to the Applicant’s daughter and, on his evidence, understood by the Applicant.

[15] I do not consider that the explanation given by the Applicant provides an acceptable explanation for the totality of the delay in making his application. I accept that, up until 28 October 2020, the Applicant believed that his application was being handles by Chris from Gorval Lynch. It is apparent, on its face, that from this time the Applicant knew that nothing was being done to progress his application. The evidence does not support a conclusion that the Applicant had entered into a costs agreement with for Gorval Lynch to act for him. However, beyond the 28 October 2020 (or at best 3 November 2020) the Applicant took no action to determine if there was anyway he could proceed with an application to the Commission in relation to the termination of his employment. The Applicant cannot hold his first lawyer responsible for inaction once the Applicant knew that lawyer was taking no action on his behalf. Certainly he cannot hold the first lawyer responsible for the period from early November 2020 until 13 January 2021. There was no representative error for this period.

[16] I note that no evidence has been called from Gorval Lynch. I have not drawn any conclusion of their conduct but rather have accepted, on its face and for the purpose of determining this application, the evidence of the Applicant.

[17] Even if I accepted the delay up until 3 November 2020 when the Applicant last attempted to contact Chris I find that there is no satisfactory reason for the delay from that date until 13 January 2021. I do not accept that the difficulty the Applicant had with Chris provides an acceptable or reasonable explanation for the totality delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[18] The Applicant became of aware of the termination of his employment on 22 September 2020. This is a neutral consideration.

Action taken to dispute the dismissal

[19] Beyond the lodgement of this application and his early contact with Gorval Lynch the Applicant has taken no other action to dispute his dismissal. I consider this a neutral consideration. I accept that he did take early action but note that he has taken no action since early October 2020.

Prejudice to the employer

[20] The Respondent in this matter says that it is prejudiced by the grant of an extension of time. In particular it submits that it has not had a timely opportunity to gather witness evidence from those effected by the conduct of the Applicant and those involved in investigating the matter. The Respondent further submits that the delay may affect the accurate recollection of witnesses and a delay of 3 months must give rise to a general presumption of prejudice.

[21] The Applicant submits that I should not accept the submissions of the Respondent and that it is the Respondent’s responsibility to put evidence of prejudice before the Commission. In any event the Applicant the Respondent stated in the termination letter that it had undertaken a thorough investigation of the matter. Further, the employees of the Respondent involved in the investigation both remain employed by the Respondent.

[22] I accept that there may be some prejudice to the Respondent if an extension of time was granted. I do not consider it be insurmountable. This factor does not weigh heavily in my consideration.

Merits of the application

[23] The FW Act requires me to take into account the merits of the application in considering whether to extend time. I note that there is a dispute as to whether the Applicant was dismissed or he resigned and this matter would need to be determined prior to the merits of the application.

[24] On this matter I cannot conclude that the Applicant has a particularly strong case. The Applicant was subject to an investigation in relation to harassment. He participated in an interview with his employer as part of its investigation on 18 September 2020. At that interview the Applicant says that his regional manager said to him “These allegations are very serious and you will be better off resigning so you don’t have to put up with the shit that’s going to follow.” On 22 September, prior to a further meeting in relation to the allegations the Applicant resigned his employment. On the Applicant’s own evidence there is little to support his claim that he was forced to resign such that he is protected from unfair dismissal. The delay of 4 days from the investigation meeting until the time he submitted his resignation letter does not suggest that he had little choice but to resign.

[25] On the question of the pure merits of the case (putting aside the question of whether the Applicant was, in fact, dismissed) I am satisfied that there are contested matters of fact which would need to be resolved at a hearing of the merits which cannot be determined by me on the basis of the materials filed to date. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case on the merits, to which the Respondent raises an apparent defence.

[26] I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[27] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[28] The test of exceptional circumstances in s.394(3) of the FW Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time. 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).

[29] The application for an unfair dismissal remedy is therefore dismissed. An order 6 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

J. Alldis, for the Applicant.

B. Wing Shing, for the Respondent.

Hearing details:

2021.
Melbourne.
1 February.

Printed by authority of the Commonwealth Government Printer

<PR726614>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40].

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31] as cited in McClelland v New Horizons Pty Ltd t/a New Horizons [2020] FWC 5075.

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 6   PR726641