Karl Schmidt v Westgold Resources Limited
[2024] FWC 3404
•9 DECEMBER 2024
| [2024] FWC 3404 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karl Schmidt
v
Westgold Resources Limited
(U2024/12522)
| DEPUTY PRESIDENT DEAN | CANBERRA, 9 DECEMBER 2024 |
Application for an unfair dismissal remedy – extension of time not granted.
This decision concerns an application made by Mr Karl Schmidt (Applicant) pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy involving his alleged dismissal from Westgold Resources Limited (Respondent).
Section 394(2) of the Act provides 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 application in the present matter was filed 17 days outside the 21-day period and can only proceed if the Commission grants a further period for the application to be made.
The application was listed for hearing on 6 December 2024 to determine whether to extend time. The Applicant appeared his own behalf and Mr D Cuthbertson appeared for the Respondent.
Extension of time
The Commission may exercise its discretion to allow a further period within which an unfair dismissal application to be made 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 onus of establishing exceptional circumstances lies with the Applicant, and the test of ‘exceptional circumstances’ establishes a high hurdle
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.
Reason for the delay
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]
The reasons given by the Applicant were that he was waiting to view the footage from the camera from a vehicle he was driving, which related to an allegation that led to his dismissal. He says it took multiple emails to the Respondent which were not answered, and eventually it was confirmed he could view the footage on 3 October 2024. After viewing the footage, he then contacted the Commission to inquire about making an application because 3 October was 1 day outside the 21-day time limit.
He also says he was unaware of the 21-day time limit, and was concerned about repercussions for his wife if he made an application as his wife also works for the Respondent.
Having considered the reasons provided, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging this application.
First, the Commission’s website makes it clear that applications must be made within 21 days. The email reply from the Commission to the Applicant on 11 October states “please don't wait for us to respond if it means your application will be late”, and then referred the Applicant to the Commission’s website for information about dismissals and the process for making an application.
Second, viewing the footage was not a prerequisite for making this application.
Third, having viewed the footage on 3 October 2024, it still took the applicant until 20 October to make this application.
Fourth, the Commission has found on many occasions that ignorance of the timeframe is not exceptional.
As a result, I am not satisfied the Applicant has made out an acceptable explanation for the whole period of the delay.
Whether the person first became aware of the dismissal after it had taken effect
There is no dispute that the Applicant was made aware of his dismissal on the day it took effect and was therefore afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
The Applicant made requests of the Respondent to view the footage that related to his dismissal and corresponded with the Respondent about this from 14 September through to 3 October when he viewed the footage.
A request to view the footage is not of itself action taken to dispute the dismissal but does give the Respondent some indication that the dismissal might be disputed. I consider this to be a neutral consideration.
Prejudice to the employer
I do not consider that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I find this to be a neutral consideration.
The merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.
The Respondent says the camera footage makes clear that the Applicant deliberately adjusted the camera (which is considered to be a safety device) in an effort to remove himself from the camera view, and that tampering with the camera constituted a valid reason for his dismissal.
The Applicant says the footage shows that he only slightly adjusted the camera, but did not tamper with the camera as alleged by the Respondent. He says he was fully visible in the cab of the machine and had only adjusted it slightly because the machine which he was operating was ‘bouncy’ and the camera had been moved as a result.
This case will turn on contested facts which cannot be resolved in this context.
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 a similar application. However, cases of this kind will generally turn on their own facts.
The Applicant asserted that there were other employees who adjusted a camera in a similar way but were not dismissed. The Respondent said they were not aware of who those persons were as the Applicant had not disclosed this information.
Conclusion
Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. Accordingly, the application for an unfair dismissal remedy is dismissed.
An order giving effect to this decision is separately issued.
DEPUTY PRESIDENT
Appearances:
K Schmidt on his own behalf.
D Cuthbertson for Westgold Resources Limited.
Hearing details:
2024.
By telephone:
December 6.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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