Josef Horomia v Serco Australia Pty Ltd
[2023] FWC 1643
•11 JULY 2023
| [2023] FWC 1643 |
| FAIR WORK COMMISSION |
| EX TEMPORE DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Josef Horomia
v
Serco Australia Pty Ltd
(U2023/4125)
| DEPUTY PRESIDENT LAKE | BRISBANE, 11 JULY 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Josef Horomia (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Serco Australia Pty Ltd (the Respondent).
On the Form F2, the Applicant states that he commenced his employment with the Respondent around June 2017 and was notified of his dismissal on 25 May 2023.
The Applicant lodged his application on 16 May 2023. The application was lodged 6 days outside the statutory time limit prescribed by s.394(2) of the Act.
The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time.
Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file her application. A hearing was held before me on 5 July 2023.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal 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.”
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 Australia stated 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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
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, the Full Bench noted:
“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.” [5]
It is 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]
The Applicant states that there were exceptional circumstances as he sought to rely on Unfair Dismissal Experts and states that his employment ended on 24 April 2023. The Applicant states that he provided his termination letter and other documentation to Unfair Dismissal Experts that he was dismissed on 24 April 2023 or 4 May 2023. Unfair Dismissal Experts took Mr Horomia as a client on 25 May 2023 and the Applicant asserts that they made an error regarding his dismissal date and the application being lodged out of time.
The Applicant relies on Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347 stating that the Applicant’s representative had made a mistake.
The Respondent contends the date of dismissal stating that the Applicant was aware of his dismissal on 19 April 2023 as he attended a face-to-face meeting where he was informed of his immediate termination and was handed a termination letter confirming this as an outcome following an investigation. The Respondent concedes that the letter had an incorrect date in the header of the communication however it was pellucid that the termination had occurred. The Respondent states that the Applicant had failed to provide any evidence regarding the representational error. The Respondent states the Applicant had not informed his representative of the correct dismissal date and therefore did not commit a representative error, nor the reason why Mr Stephen Gaffney from Unfair Dismissal Experts provide a statement regarding any error.
In Giles v Coal Train Australia Pty Ltd, Deputy President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.[7]
The Applicant was put on notice regarding the threshold of establish a representative error as stated in Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347 at [27]:
“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted. (emphasis added)”
I find that the Applicant did not provide any material evidence which supported the representative error even though my Chambers had provided multiple opportunities to do so. The Applicant only provided evidence regarding a text message with Mr Stephen Gaffney, and Mr Gaffney lodging the application out of time. The Applicant did not provide any evidence from Mr Gaffney acknowledging that he had made an error, nor did the Applicant demonstrate he took active steps to try and lodge the application on time. The Applicant had not established a sufficient reason for delay.
This weighs against an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant provided evasive answers regarding the date when he was dismissed. The Applicant states that he was aware of his dismissal regarding the termination date from the termination letter date of 24 April 2023.
This consideration weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not take to dispute the dismissal. This consideration does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
The Respondent did not raise any submissions surrounding prejudice in granting an extension of time. I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
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.”
Without a hearing on the merits, 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))
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.[9] The Applicant did not establish enough evidence to establish the representative error. The Applicant must have taken steps to have lodged the Application on time rather than solely relying on the representative. Had the Applicant disclosed all the facts to the Representative, the Applicant could have been lodged on time. In this case, the Applicant was not blameless for the delay.
This consideration weighs against an extension of time.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J. Horomia for the Applicant
Mr P. Brown from Baker McKenzie appearing on behalf of the Respondent
Hearing details:
Brisbane
Hearing via MS Teams
5 July 2023
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at 38.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].
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