Jeremy Charter v Ballarat Community Health
[2024] FWC 2171
•15 AUGUST 2024
| [2024] FWC 2171 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jeremy Charter
v
Ballarat Community Health
(U2024/8444)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 15 AUGUST 2024 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances found – additional time granted.
Introduction
On 20 July 2024, Mr Charter made an application to the Commission for an unfair dismissal remedy. He contends that he was unfairly dismissed by the Respondent on 28 June 2024.
Section 394(2) of the Fair Work Act (2009) (Cth) (the 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 19 July 2024. The application was therefore filed one day outside the 21-day period.
For the application to proceed, Mr Charter requires the Commission grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a hearing on 15 August 2024, at which the Applicant gave evidence in support of his application.
Extension of time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. 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 requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· 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 assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.
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.[3]
Relevant factors
Reason for delay:
The Act does not specify what reason for delay might justify 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 delay required to be considered 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.[5] 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.[6]
The Applicant was dismissed effective 28 June 2024, on the basis that his position as Brand Manager was redundant. He submits that he was clearly told there were no other employment options given his experience and skills. At this point, the Applicant did not intend to challenge the dismissal. However, on 20 July 2024 he became aware of a role advertised by the Respondent which he contends was similar to the role he was dismissed from. This convinced him that his redundancy was not genuine, and he decided to challenge it by making an unfair dismissal application. He did so that day.
I am satisfied that the Applicant has provided an acceptable explanation for the delay in lodging his application. Without any basis to dispute his employer’s stated reason for dismissal at the time, when he saw what appeared to be a similar position advertised on the 21st day after his dismissal took effect, he considered that he had been unfairly dismissed and sought to challenge his dismissal. He then acted promptly in making the application that day. This weighs in favour of a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect:
The Applicant agrees that he became aware of the dismissal before it took effect on 28 June 2024. Consequently, he had the benefit of the full 21-day period within which to lodge the application. It is not as though he discovered that his employment had ended after it took effect. In the circumstances of this matter, I consider this factor weighs neutrally.
Whether the Applicant took action to dispute the dismissal
If an applicant disputes a dismissal with his or her employer before lodging the application and after the dismissal takes effect, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal. In such circumstances the fact that there was notice of such a dispute is a matter which would weigh in the applicant’s favour, even though the application was lodged out of time.
Mr Charter did not take any steps, beyond lodging the application, to dispute his dismissal after it took effect. In circumstances where the Applicant had no basis to and thus did not intend to dispute the dismissal until he saw the job advertised, I consider this weighs neutrally.
Prejudice to the employer (including prejudice caused by the delay):
There is no evidence of any particular prejudice to the Respondent which is unsurprising given the period of delay is only one day. I consider this to weigh neutrally in considering whether there are exceptional circumstances.
Merits of the application:
The merits of the application are a relevant consideration in determining whether there are exceptional circumstances and whether it is appropriate to exercise the discretion to extend the timeframe. For example, a highly meritorious claim may persuade the Commissioner to accept an explanation for delay that would otherwise have been insufficient.
The purpose of the consideration here is to make a general assessment, and it is done in the context of, largely, uncontested, untested allegations that are made and it is not possible to make any final and substantive determinations.
The Applicant contends that his dismissal was unfair and was not a genuine redundancy because a role was advertised shortly after his employment ended, that involved the same objectives and tasks as his role as Brand Manager. The Respondent contends that the position of Communications Officer that was subsequently advertised is a low-level administrative role and very different to and a much lower-level role than the position the Applicant held. The position descriptions state that the Brand Manager position was Level 5 and the Communications Officer was a Level 2 position under the applicable enterprise agreement.
The merits or otherwise of the Applicant’s unfair dismissal claim will likely depend on whether it would have been reasonable in all the circumstances for the Applicant to have been redeployed to another role. Where the substantial merits of the application have not been fully examined or tested, it is not possible to reach a clear view on this issue, and my preliminary assessment on the limited material before the Commission, viewing the Applicant’s case at its most favourable, suggests that the Applicant has a reasonable basis to contend that his dismissal was not a case of genuine redundancy and the Respondent has an apparent defence. I consider that the merits of the application weigh slightly in favour of a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Mr Charter’s claim. However, cases will generally turn on their own facts.
No relevant matters were drawn to my attention regarding this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
Having regard to the matters I am required to take into account under s.394(3) of the Act and all of the matters raised by the Applicant and the Respondent, I am satisfied that there are exceptional circumstances in this case, when the various circumstances are considered together. I am satisfied that the circumstances of this matter are out of the ordinary course and are unusual.
I consider it appropriate to exercise my discretion and grant the Applicant an additional day to make the application.
An order to that effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
J. Charter, the Applicant appearing on his own behalf.
E. Hickson, appearing on behalf of the Respondent.
Hearing details:
2024
15 August.
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[5] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[6] 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].
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