Joshua Kingston-Lee v Bostik Australia Pty Ltd

[2020] FWC 5545

[2020] FWC 5545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Kingston-Lee
v
Bostik Australia Pty Ltd
(U2020/13373)

DEPUTY PRESIDENT MANSINI MELBOURNE, 29 OCTOBER 2020

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

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

[2] The Applicant’s employment as a Senior Research and Development Chemist with Bostik Australia Pty Ltd (Respondent) was terminated by reason of redundancy, with effect from 14 October 2019. The unfair dismissal application was not lodged until 8 October 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 4 November 2019. The application was therefore filed 339 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 Respondent opposes this request.

[4] Witness statements in relation to the jurisdictional question were filed by the Applicant and a Mr John Pigou (Operations Director, on behalf of the Respondent). At the hearing, the Respondent sought to be represented which was not opposed and permission was granted pursuant to s 596. The Applicant gave evidence at the hearing and both parties made oral submissions.

Are there exceptional circumstances in this case?

[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 or unprecedented, or 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

[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) of the Act 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 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. 3

[10] The Applicant cited the following matters as an explanation or reasons for the delay in lodging the application. The Applicant said that, until the evening of Friday 2 October 2020, when he saw the Respondent’s advertisement on for the role of “R&D Chemist Sealing and Bonding”, he had believed that his redundancy was genuine. The Applicant considered that the advertisement precisely described his former role with the Respondent and therefore he was no longer satisfied that his redundancy was genuine.

[11] The Applicant then waited to speak with his new employer, on Tuesday 6 October 2020, to check that there would be no conflict in pursuing an unfair dismissal claim. No issue was raised by the new employer but the Applicant was busy that evening with family responsibilities. At the hearing, the Applicant accepted that he had no explanation for the remaining two days but also said that he had researched and considered his options on Wednesday 7 and Thursday 8 October 2020 before ultimately filing the application at 10:05pm on Thursday 8 October 2020. The application was filed 339 days after the 21 day timeframe had expired.

[12] The Applicant accepted that there was no malice or sinister motive on the part of the Respondent, that a long period of time has elapsed since his employment came to an end and that things can change especially in recent times given the global pandemic (COVID-19). However he argued that 12 months is not a long time in the research and development (R&D) industry and this explained a large part of his delay because it was not until viewing the advertisement on 2 October 2020 that he became aware of his right to bring an unfair dismissal claim.

[13] For its part, the Respondent accepted that a person seeing an advertisement that resembled their former position may in some circumstances constitute an acceptable explanation for delay. However in this case the Respondent argued that, even if the advertised role was the same as the Applicant’s former role (which it denied), the period of time between the Applicant’s employment coming to an end and learning of the advertisement was just too long. Further, that the Applicant could not then explain the whole of the delay between learning of the advertisement and filing this claim.

[14] I am not satisfied that the Applicant has provided an acceptable explanation for the delay from 2 October 2020. After learning of the advertisement on the evening of 2 October 2020, the Applicant did not then act promptly and did not attend to the filing of this claim until the evening of 8 October 2020. The Applicant’s desire to first speak with his new employer is perhaps admirable but does not establish that the Applicant was prevented from lodging the application at an earlier time. I do not consider ignorance of the available options or the need to act promptly to be a reasonable or acceptable explanation in the circumstances of this case.

[15] In any event I am not persuaded that the explanation for the remainder of the delay, being a lengthy period of some 333 days, is reasonable in the circumstances.

[16] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[17] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge an unfair dismissal application. This is a neutral consideration in the circumstances of this case.

Any action taken by the person to dispute the dismissal

[18] The Applicant accepted that he took no steps or action to dispute the dismissal prior to lodging this claim as, until learning of the advertisement, he had no reason to believe that the redundancy was not genuine. The Applicant did not contend that any action was taken after learning of the advertisement on 2 October 2020 and prior to lodging this claim.

[19] The absence of any action to dispute the dismissal for a period might be understandable and at least a neutral consideration in circumstances where the Applicant subsequently learns of new information which gives rise to a claim. However, the absence of any step or action to dispute the dismissal after learning of the advertisement on 2 October 2020 weighs against a conclusion that there are exceptional circumstances.

Prejudice to the employer

[20] The Respondent broadly submitted that it would suffer prejudice if an extension of time were to be granted because a 12 month period has now elapsed, it has moved on with its business, its processes and its operations and the memories of individuals involved would naturally have faded. It contended the time limitation is important in terms of providing some stability for a party regarding its business plans, utilisation of resources and not having a liability beyond a certain period. However other than some evidence that the Applicant’s termination letter could not be located, there was no evidence of any specific prejudice the Respondent would suffer.

[21] I acknowledge the Respondent’s submission as cogent and valid in terms of the policy reasons for the statutory time limitation. However, in the absence of the identification of any particular prejudice, I consider this factor does not weigh against a finding of exceptional circumstances.

Merits of the application

[22] The Act requires me to take into account the merits of the application in considering whether to grant an extension of time.

[23] The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and were addressed at the hearing and I do not repeat them in any detail here. In summary, the Applicant gave evidence about his former role, and its likeness to the advertised role. He also contended, based on his experience in the R&D sector, that the new role must have been in the pipeline or under consideration as part of a business plan for some time and likely was in contemplation at the time of his redundancy. Whilst conceding that the advertisement could have been better drafted, the Respondent contended that the advertised role is new and distinct from that of the Applicant. Mr Pigou gave evidence in support, including of the “key” differences between the two roles. He also stated that the advertised role was not in contemplation at the time of the Applicant’s dismissal and therefore retraining for the advertised role (which Mr Pigou claimed would be necessary) was also not considered at the time of the Applicant’s dismissal.

[24] Having examined the filed materials and considered the evidence and oral submissions made at the hearing, it is evident to me that the merits of the application turn on contested points of fact which would properly need to be tested if an extension of time were granted and the matter were to proceed.

[25] It is not possible to make any firm or detailed assessment of the merits. The Applicant has at least an arguable case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to 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

[26] 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 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

[27] The time limit that applies to the exercise of a person’s right to bring an application under s 394 reflects the Parliament’s intention that this right be exercised promptly so as to bring about certainty. It is important to recognise that time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The Act provides that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[28] 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.

DEPUTY PRESIDENT

Appearances:

J. Kingston-Lee for himself.
L. Connolly of Connolly Law for the Respondent.

Hearing details:

2020.
Melbourne (by video).
October 21.

Printed by authority of the Commonwealth Government Printer

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

 2   Ibid.

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