Jackson Chung v Travel Compensation Fund
[2015] FWC 7660
•11 NOVEMBER 2015
| [2015] FWC 7660 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jackson Chung
v
Travel Compensation Fund
(U2015/13100)
COMMISSIONER JOHNS | MELBOURNE, 11 NOVEMBER 2015 |
Application for relief from unfair dismissal.
[1] On 28 October 2015 the Fair Work Commission (Commission), as presently constituted, issued an Order dismissing the applicant’s application for an extension of time.
[2] On 3 November 2015 the applicant requested reasons for the decision. These are those reasons.
[3] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for lodgement in exceptional circumstances.2
[4] Mr Chung (Applicant) made application for a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 23 September 2015, that being 55 days after his employment was terminated by Travel Compensation Fund (Respondent) on 30 July 2015.
The jurisdictional objection
[5] I wrote to the Applicant on 25 September 2015 outlining the matters I was required to consider by the FW Act and asked him to provide a statement addressing these matters within 14 days.
[6] On 7 October 2015 the Applicant filed a submission. He was then asked to specifically address the extension of time issues outlined in my earlier correspondence.
[7] On 19 October the Applicant filed a further submission. In short the Applicant says that he:
a) He had been in a state of confusion, frustration, stress and was mentally incapable of comprehending what had happened;
b) He was not aware of his legal rights; and
c) He also states that he submitted a letter of resignation that he was coerced into signing on 30 July 2015.
Legislative scheme
[8] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. 4
Consideration
Paragraph 394(3)(a) - The reason for the delay
[10] The Applicant submits that there were 55 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.
[11] The Applicant says the reason for the delay were that:
a) he was not aware of the 21 days filing period; and
b) he was not mentally in a position to comprehend the effects of his dismissal.
[12] The reasons advanced by Mr Chung were not out of the ordinary, unusual or uncommon. In fact it is routinely the case that people dismissed from their employment feel a sense of loss and confusion about what has happened to them. This is not an exceptional circumstance. Further, ignorance of the 21 day time limit has long been held not to be an exceptional circumstance.
[13] This factor weighed against granting the applicant a further period for lodging his unfair dismissal application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[14] The Applicant submits that he first became aware of the dismissal on 30 July 2015.
[15] However, it is the Respondent’s position that the Applicant voluntarily resigned his employment.
[16] This factor weighed against granting the applicant an extension of time.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[17] Mr Chung disputed his dismissal by lodging this application, albeit late.
[18] The action taken by the Applicant weighed against granting him a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[19] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Chung’s application being listed now than there would have been had it been lodged in time.
[20] For present purposes, I treated the likely prejudice as a neutral factor.
Paragraph 394(3)(e) - The merits of the application
[21] In the matter of Kornicki v Telstra-Network Technology Group 5the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 6
[22] The Commission, as presently constituted, adopted this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[23] It is an accepted practice in jurisdictional matters that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional matter the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[24] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.
[25] If the Applicant can establish to the satisfaction of the Commission that there was a constructive dismissal then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
[26] Because the Applicant’s case was not without merit or lacking in any substance, it weighed in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[27] There was no issue of fairness in relation to any other person in a similar position.
Conclusion
[28] For the reasons set out above, on balance in the exercise of its discretion, the Commission as presently constituted was not satisfied that there were exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).
COMMISSIONER
1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Section 394(3) FW Act.
3 [2011] 203 IR 1
4 Above note at [13].
5 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
6 Ibid.
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