Joshua Spasaro v Race Media Pty Ltd

[2023] FWC 1226

[2023] FWC 1226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Spasaro
v

Race Media Pty Ltd

(U2023/3707)

DEPUTY PRESIDENT COLMAN MELBOURNE, 25 MAY 2023

Application for an unfair dismissal remedy – whether to extend time – application dismissed

1. Mr Joshua Spasaro (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Race Media Pty Ltd (respondent) objects to the application because it was filed out of time. Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant’s employment was terminated on 3 April 2023. The 21-day period ended on 24 April 2023. The application, which is dated 1 May 2023, was lodged in the Commission on that date. In order for the application to proceed, the applicant requires the Commission to grant an extension of time.

1. The Commission does not have a general discretion to extend the period within which to lodge an unfair dismissal application. Rather, the Act allows the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer, including prejudice caused by the delay; the merits of the application; and fairness as between the person and other persons in a similar position.

1. As to the reason for the delay (s 394(3)(a)), the applicant said that after his dismissal he sent a general enquiry to the Commission using the portal on its website, asking how to proceed with an unfair dismissal claim, but that no one replied to him. The applicant said that he was still waiting for a reply to his enquiry when he realised that he had only 21 days from the date of the dismissal to make his application. He also submitted that the Commission should take into account the one week off work that he had decided to take because of his stress and frustration with the company. The Act does not specify what types of reasons for delay might speak in favour of an extension of time however decisions of the Commission have referred to a good or acceptable reason. I am not satisfied that there is such a reason in this case. It was not necessary or reasonable for the applicant to delay the lodgement of his application while he waited for a response to a general enquiry. The applicant’s initial unawareness of the 21-day lodgement rule is not an acceptable reason for delay. The Commission’s website contains ample information about unfair dismissals, including the 21-day lodgement requirement. The webpage containing the enquiries portal also states that an unfair dismissal application must be made within 21 days of the dismissal and that applicants should not wait for an answer to their enquiry if this would result in the application being late. Further, I am not persuaded that the applicant’s stress or frustration seriously impeded the timely lodgement of an application, or that the week off that he had requested from his employer is relevant. In my view, there was no good or acceptable reason for the delay. This weighs against an extension of time.

1. As to s 394(3)(b), the applicant learnt of the employer’s dismissal notice on the day after it was sent. He therefore had one less day to file the application on time. This weighs in favour of an extension of time, but only marginally so. The matters in s 394(3)(c), (d) and (f) are neutral considerations: the applicant did not take other action to dispute his dismissal; there is no relevant prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people.

1. As to the merits (s 394(3)(e)), the applicant stated that his dismissal from his casual position as a horse and greyhound racing reporter was unfair for various reasons, including because it occurred without warning and for no good reason, after he told the company that he would be taking a week off to consider his future. He said that the company had not raised any issues with his performance, that he had been a top-rating employee, and that the notice of dismissal stated simply that he was not a good fit for the company. The respondent said that the dismissal was not unfair because the applicant had decided to absent himself for a week without any warning, which caused serious difficulties, as this was the busiest publishing week for the greyhound racing year. The company said that it is a small business and that it had spent a lot of time responding to the applicant’s objections to management decisions to make editorial changes to his articles or to reject them. Based on the information before me, I consider that the applicant has a reasonably arguable case on the merits, to which the company has a plausible response. I consider the merits to be a neutral factor.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking account of the matters in s 394(3), I am not satisfied that there are such circumstances in this case. There is no proper basis to grant an extension of time. The application is therefore dismissed.

DEPUTY PRESIDENT

Hearing details:

2023
Melbourne
25 May

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