Joel John v JobCo. Employment Services Inc

[2020] FWC 4690

[2020] FWC 4690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joel John
v
JobCo. Employment Services Inc.
(U2020/10290)

DEPUTY PRESIDENT MASSON MELBOURNE, 8 SEPTEMBER 2020

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

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

[2] The Applicant’s employment with JobCo Employment Services Inc. (Respondent) was terminated with effect from 6 July 2020. 1 The unfair dismissal application was lodged on 28 July 2020.

[3] Section 394(2) of 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 27 July 2020. The application was therefore filed 1 day 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] Determination of the extension of time application was conducted, pursuant to s 398 of the Fair Work Act 2009 (the Act), by way of a conference on 8 September 2020 to determine the extension of time application. The Applicant appeared on his own behalf and gave evidence while the CEO of the Respondent, Mr S Guy appeared and gave evidence for the Respondent. Ms K Doer also appeared for the Respondent.

[5] The 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. 2 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

[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[7] 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.

[8] 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 turn to consider these matters in the context of the Application.

Reason for the delay

[9] The 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. 4

[10] The Applicant cited the following matters as reasons for the delay in lodging the application. The Applicant states that his dismissal occurred at the peak of the Covid 19 pandemic in Victoria and that he was, following his dismissal, dealing with family responsibilities including the care and home schooling of two young children. The Applicant also says that he was trying to get Covid 19 testing and attending medical appointments. The combination of these factors led to the delay in filing of the application according to the Applicant.

[11] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. Significantly, there was no evidence as to the number of medical appointments attended or the particular efforts made to undertake Covid 19 testing. I accept that the community health and economic consequences of the Covid 19 pandemic are unprecedented in recent history and this has placed particular pressure on parents of school age children. There was however no evidence adduced that the Applicant’s family responsibilities, medical appointments and Covid 19 testing attempts were so time consuming and onerous as to leave him no time for on-line completion and filing of his unfair dismissal application within the 21 day period.

[12] I do not accept the explanation 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 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

[13] The Applicant confirmed in his evidence that he was notified of the dismissal on the same day that it took effect. Consequently, he had the full 21 days within which to file his application. In the circumstances, I regard this as a neutral consideration.

Action taken to dispute the dismissal

[14] The Applicant submitted that he had advised his Area Manager Ms Maria Berkis that he would fight the dismissal although the means by which he intended to challenge the dismissal was not made clear. I do not consider the mere foreshadowingof a challenge to the dismissal as constituting ‘action to dispute the dismissal’.

[15] The Applicant took no action to contest his dismissal, other than lodging his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[16] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[17] The Act requires me to take into account the merits of the application in considering whether to extend time. The Applicant contends that his dismissal was a sham redundancy, that there was no consultation meeting, that there was no apparent consideration or offer of re-deployment and that the Respondent was actively recruiting new staff in the period. The Respondent denies the Applicant’s contentions and submits that the business development role of the Applicant was genuinely redundant.

[18] It is evident to me that 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. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. 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

[19] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[20] 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

[21] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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). Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

J. John on his own behalf

S. Guy on his own behalf

Hearing details:

2020
Melbourne
September 8

Printed by authority of the Commonwealth Government Printer

<PR722429>

 1   Exhibit R1, Letter of termination dated 6 July 2020

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

 3   Ibid.

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters[2018] FWCFB 901 at [39]