Jorden Best v Heathcote Pty Ltd T/A Ultratune

[2021] FWC 5911

[2021] FWC 5911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 – Unfair dismissal

Jorden Best
v
Heathcote Pty Ltd T/A Ultratune
(U2021/5681)

DEPUTY PRESIDENT LAKE BRISBANE, 14 SEPTEMBER 2021

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

[1] Jorden Best (theApplicant) lodged an application with the Fair Work Commission (theCommission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Heathcote Pty Ltd T/A Ultratune(theRespondent).

[2] The Applicant began his employment on 13 May 2020. The Applicant’s employment was terminated on 24 May 2021, effective immediately, and that his application was lodged with the Commission on 29 June 2021. The Applicant accepted that this was outside the 21-day period prescribed by s.394(2) of the Act. For the Applicant’s application to proceed, the Commission would have to exercise its discretion to allow further time pursuant to s.394(3) of the Act.

[3] It was determined that these objections would be dealt with by oral hearing on 6 September 2021, prior to which both parties had the opportunity to file written submissions and statements. The Applicant appeared and gave evidence on his own behalf. Ian Naylor (advocate from the Motor Traders Association) and Karen Heath (the Respondent’s owner) appeared for the Respondent.

Consideration of whether a further period should be granted

[4] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made:

“(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 like position.”

[5] The test of ‘exceptional circumstances’ establishes a high barrier for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),2 the Full Bench of Fair Work Australiastated that:

“[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.”

[6] Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

[7] For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. For that to occur, I must be satisfied there are “exceptional circumstances” taking into account each of the matters in s.394(3) of the Act.

[8] Given the Applicant was unrepresented at the hearing, I specifically asked him to address each of the factors set out in s.394(3) of the Act.

[9] The Applicant’s submissions may be summarised as follows:

(a) When he first became aware that the dismissal of his employment was being contemplated, the Applicant tried to explain that he was not only trying to do his own job, but he was also trying to train very junior staff, manage stock orders and deal with other business matters;

(b) He was very stressed from the moment he was dismissed because he had to find work to satisfy his visa requirements and stay in Australia;

(c) Most of his time and attention was consumed by attempts to seek employment. This involved calling various companies, making online applications and researching how his visa conditions would be affected. He had emailed potential employers in Brisbane, Perth and Cairns, and attended a couple of interviews;

(d) At the time he was dismissed, he was not aware that he could make an application for unfair dismissal. He only became aware of this possibility in late-June and, after a couple of days of research, he lodged the application;

(e) He was incredibly stressed following his dismissal. He was often upset and just trying to work out how to survive without an income;

(f) The stress and anxiety he felt was heightened because of his being on the other side of the world from his family. This was exacerbated by the news on or around 23 July 2021, that a family member had passed away;

(g) There would be no prejudice caused to the Respondent if the extension was allowed; and

(h) He agrees that his workmanship was affected but says this was because of the chaos of the business. Consequently, the dismissal was harsh because he had been trying to do his own tasks, while managing and training others and dealing with other business matters. He also disputes how long the Respondent says it took, and how costly it was, to fix the damage he allegedly caused.

[10] The Respondent claims that there are no exceptional circumstances in this case. The Applicant’s ignorance of the possibility of lodging an unfair dismissal claim is no excuse and, in any event, is not exceptional. The Respondent tried to suggest that the Applicant was simply “rolling the dice” by making this application. The Respondent also pointed to the Applicant’s failure to respond in a timely way to correspondence from the Commission following the lodging of his application. The Respondent claims that the Applicant simply has not taken responsibility for his own actions. Consequently, the Respondent asserts that the Commission should not exercise its discretion to extend time for the filing of this application.

Consideration

Reason for the delay (s.394(3)(a))

[11] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,5 the Full Bench noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

[12] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. It is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 6

[13] The Applicant was unfamiliar with existence of the unfair dismissal application at the time of his dismissal and only discovered it a few days before he lodged the application after he searched on the internet. I accept the Applicant did not research unfair dismissal until several weeks after his dismissal, however, there was no particular reason why he did not take this action earlier other than he was otherwise occupied with finding other employment and researching his visa obligations. His evidence made clear that he had been using the telephone and computer to search for jobs and have interviews during the 21 day period following his dismissal and that he prioritised finding work over pursuing a claim with the Commission. This would indicate that he had the ability to make a three page online application during this period. While I have considerable sympathy for the Applicant, who clearly had many things competing for his attention and time. That said, unfortunately these reasons are not out of the ordinary course, unusual, special, or uncommon. Consequently, based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.

Whether the person first became aware of the dismissal after it had taken effect & action taken to dispute the dismissal (s.394(3)(b) and (c))

[14] The Applicant was aware that his employment had been terminated on 13 May 2021, effective immediately. He did not dispute the reasons given for dismissal, but attempted to offer an explanation: that is, that his workmanship was affected but because of the chaos of the business. That explanation was rejected by the Respondent. Consequently, these factors weigh against an extension of time.

Prejudice to the employer (s.394(3)(d))

[15] The Applicant said there would be no prejudice to the Respondent if he were allowed to continue with his application. The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 7 I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

[16] In Kornicki v Telstra-Network Technology Group, 8 the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the

Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”

[17] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’ 9

[18] Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

[19] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 10

[20] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

[21] Having regard to all the matters I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

[22] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733783>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

 2   [2019] FWC 25.

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

 5   [2018] FWCFB 901.

 6   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 8   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 9   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

 10   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].