John Swan v AQC Dartbrook Management Pty Ltd
[2025] FWC 534
•21 FEBRUARY 2025
| [2025] FWC 534 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Swan
v
AQC Dartbrook Management Pty Ltd
(U2025/607)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 21 FEBRUARY 2025 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Mr John Swan (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, AQC Dartbrook Management Pty Ltd (Respondent).
The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).
The Applicant’s dismissal from his employment with the Respondent took effect on 20 December 2024. The Applicant lodged his unfair dismissal application in the Commission on 17 January 2025.
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 10 January 2025. The application was therefore filed seven 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 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]
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.
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.
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 will now consider these matters.
Reasons for the delay
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]
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.[5]
Relevant facts and submissions
In an email to the Commission sent on 7 February 2025, the Applicant provided the following information in support of his request for an extension of time:
“To Chambers of Deputy President Easton,
Thank you for your response. I note that the application was 7 days late. However, there were extenuating circumstances relating to my termination which I hope you will take into consideration and permit an extension of time.
The first notice of the termination was sent via email on 17 December 2024 at 11:00PM, which is the date that the termination became effective.
I did not see the email on the 17th December as I was asleep.
On the 18th December 2024 I opened the email as I was waiting at Sydney International Airport Departures for my 2.2 week holiday that my wife surprised me with as a belated birthday present.
On the 20 December 2024, I then received a second email advising a confirmation of release, effective immediately of my employment with Australian Pacific Coal. Request for Company property to be returned.
As I was overseas at this time I could not return Company Property. I did not return from overseas until the 6th January 2025.
I was aware that if the termination was due to the role becoming redundant that I would not be entitled to challenge the termination.
However, if the termination was for other reasons, then I was aware that I had certain rights, including the right to be provided with a warning before the termination took effect.
There was no previous verbal or written notice given to me that my role would be terminated. In fact, my supervisor, Mr Theo Renard (Chief Financial Officer) was also not aware that my role was being terminated until after the termination took effect. My AQC Muswellbrook colleague Clare Thrift made contact on the 21st of December with me regarding the emails as she had received a termination email as well.
Clare attempted to contact Mr Craig McPherson on the 19th and 20th of December to enquire the reasons for the termination. He did not respond to Clare’s email or phone calls.
From the period 21 December to 6 January the office was closed for the Christmas break and there was no one whom I could speak to about the reasons for the termination as I was out of country.
I believe that the two weeks of office closure significantly impacted on my ability to file an application as I remained uncertain about the cause of the termination.
I also discussed the termination with Mr Renard, who was also not aware of the reason for the termination. However, Mr Renard was of the view that the role was not redundant and that they still needed the role filled.
I had been in the role since 2021 and was a Statutory employee with mandatory responsibilities and great work ethics.
Therefore, on 15th January 2025, I sought personal advice and decided to file an unfair dismissal claim.I am of the view that the notice of termination was deliberately sent during the week before Christmas at 11PM on the 17th December as it would not give me an opportunity to discuss or challenge the termination. I believe this has prejudiced my position in respect of the termination and that the employer did this knowingly and intentionally. This was not a fair and proper way to inform me of the termination of my employment.
Without the necessary information it was difficult for me to challenge the dismissal directly with the employer. This is why I referred the matter to the Commissioner and filed for an unfair dismissal claim as I was not provided with any reason for the termination.
I hope the above gives a clear outline of the circumstances and the reasons why the application was filed outside of the 21day limit. I would greatly appreciate your kind consideration of these extenuating circumstances and provide the necessary extension for my matter.”
Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the seven day delay in filing his unfair dismissal application. The letter of termination did not inform the Applicant of the reasons for the decision to terminate his employment. However, I consider that the Applicant was in a position on 20 December 2024 to form an opinion as to whether his dismissal was unfair. The Applicant believed that he “was a statutory employee with mandatory responsibilities and great work ethics”. The dismissal came as a shock to the Applicant and he has not suggested that he was aware of any proposal to make his role redundant. The Applicant returned from overseas on 6 January 2025, four days before the 21 day time limit expired. He had sufficient time to lodge an application in the Commission by midnight on 10 January 2025.
The absence of an acceptable or reasonable explanation for the seven day delay in lodging the application on 17 January 2025 weighs against the Applicant’s contention that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his dismissal on the day it took effect because he accepts that he received an email on 20 December 2024 advising of the immediate termination of his employment. It follows that the Applicant had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
It is apparent from the information set out in paragraph [11] above that the Applicant made some enquiries about his dismissal and the potential reasons for it, but I do not consider that the Applicant took action to dispute his dismissal, other than filing his unfair dismissal application in the Commission. This is a neutral consideration.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent 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
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
The Applicant says that he has “great work ethics” and no reason has been provided for his dismissal.
The Respondent provided the following response to the Applicant’s contentions in its Form F3 Response:
“The applicant was employed under an agreement which provided for three months’ notice of termination of such arrangements. The application was provided such notice and has been paid out the relevant notice period.”
Compliance with contractual obligations may be relevant to whether a dismissal was unfair or not, but it is not determinative. For example, an employer may have a contractual right to terminate an employee’s employment on the giving of a particular period of notice. But if there is no valid reason for the dismissal and no procedural fairness was afforded to the employee prior to their dismissal, it is likely that the dismissal will be found to be unfair.
The Respondent also contends that the Applicant earned well more than the high income threshold and was not covered by an award or an enterprise agreement.
The Applicant was employed by the Respondent in the position of Mine Manager/General Manager. The coverage of Schedule B – Staff Employees of the Black Coal Mining Industry Award 2020 extends to Undermanagers and Undermanagers (in charge) but not to the position of Mine Manager/General Manager. The position of Undermanager or Undermanager (in charge) would normally report to the position of Mine Manager/General Manager, but the mine at which the Applicant worked was in care and maintenance mode, with the result that there were no Undermanagers employed to work at the mine. The Applicant undertook the statutory functions at the mine.
I consider that the Applicant has a weak argument that he was covered by the Black Coal Mining Industry Award 2020 in his position of Mine Manager/General Manager. The Applicant certainly earned more than the high income threshold. It follows, in my opinion, that although the failure to provide the Applicant with any reason for his dismissal was unfair, the Applicant would be unlikely to succeed in an argument that he was protected from unfair dismissal. Accordingly, the merits of the Applicant’s unfair dismissal case weigh against a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
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.
Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.
Conclusion
Taking into consideration 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, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. The Applicant does not have an acceptable or reasonable explanation for the seven day delay in lodging his unfair dismissal application in the Commission. The merits of the application also weigh against a finding of exceptional circumstances. The other relevant factors are neutral or of little weight. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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.
DEPUTY PRESIDENT
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[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]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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