Jeffrey Williams v J&A Machines Pty Ltd T/A United Technology Services
[2024] FWC 1705
•2 JULY 2024
| [2024] FWC 1705 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jeffrey Williams
v
J&A Machines Pty Ltd T/A United Technology Services
(C2024/3196)
| DEPUTY PRESIDENT DEAN | CANBERRA, 2 JULY 2024 |
Application to deal with contraventions involving dismissal – extension of time – no exceptional circumstances.
This decision concerns an application made by Mr Jeffrey Williams (Applicant) pursuant to s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving his dismissal from J&A Machines Pty Ltd T/A United Technology Services (Respondent).
Section 366(1) of the Act requires that a general protections application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).
The Applicant’s employment was terminated by reason of redundancy on 25 March 2024. His general protections application, received by the Commission on 16 May 2024, was made 31 days outside the 21-day period prescribed by the Act and can only proceed if the Commission allows further time for the application to be made.
The application was listed for hearing on 1 July 2024 to consider whether further time should be allowed for the application to be made. The Applicant appeared and gave evidence on his own behalf and Ms C Koppman appeared and gave evidence for the Respondent.
Extension of time
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the Act provides:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:
“[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.”
The onus of establishing exceptional circumstances lies with the Applicant.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]
The Act does not specify what reason for the 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.[4]
The Applicant’s reason for the delay was that he was unaware of the 21-day time limit.
I am not satisfied that this is an acceptable explanation for the Applicant’s failure to file this application within the statutory timeframe. It has been well established that unawareness of this timeframe is not exceptional, in that it is not at all unusual for people not to be aware of this timeframe.
This weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
The Applicant did not take steps to dispute his dismissal, which weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I do not accept that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
In Nulty v Blue Star Group Pty Ltd[5], the Full Bench said:
“It would appear that this factor, described in the Act as ‘the merits of the application’ is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination.”
For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[6]
The Respondent contended that the Applicant’s employment ended due to genuine redundancy.
The Applicant contended that he was dismissed because he was a union delegate. He gave evidence that he had worked for the Respondent for 25 years without issue, until such time as he introduced the union to his workplace.
This case will turn on contested facts which cannot be resolved in this context. As such, I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[8]
The Applicant gave evidence that there was another person in the same position has him, who had also been involved with the union and was made redundant.
I find this to be a neutral consideration in the circumstances.
Conclusion
The onus is on the Applicant to demonstrate that his circumstances are out of the ordinary course, unusual, special or uncommon. Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. On this basis, no further time is allowed for the application to proceed and the application is dismissed.
An order giving effect to this decision is separately issued.
DEPUTY PRESIDENT
Appearances:
J Williams on his own behalf.
C Koppman for J&A Machines Pty Ltd.
Hearing details:
2024.
By telephone:
July 1.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] [2011] FWAFB 975.
[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[7] [2015] FWC 8885.
[8] Ibid at [29].
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