Kshaur Ramesh-Kumar v Nissan Financial Services Australia Pty Ltd

[2019] FWC 8137

[2019] FWC 8137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kshaur Ramesh-Kumar
v
Nissan Financial Services Australia Pty Ltd
(C2019/4063)

DEPUTY PRESIDENT CROSS SYDNEY, 29 NOVEMBER 2019

Application to deal with contraventions involving dismissal - out of time.

[1] On 1 July 2019, Mr Kshaur Ramesh-Kumar (the “Applicant”) lodged an application (the “Application”) pursuant to s.365 of the Fair Work Act 2009 (the “Act”). The Applicant’s Form F8 provided that he had commenced employment with Nissan Financial Services Australia Pty Ltd (ABN 701 300 467 94) (the “Respondent”) on 29 January 2019, and his employment had been terminated by the Respondent on 7 June 2019.

[2] General Protections applications involving dismissal must be made within 21 days after a dismissal took effect or in such further time as the Fair Work Commission (the “Commission”) may allow. As the dismissal took effect on 7 June 2019, an application for a remedy should have been lodged by no later than 28 June 2018. The Application was therefore three days late.

[3] The section that determines the permissible time limit for a general protection’s application is s.366 of the Act:

“366 Time for application

An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).”

[4] The Act is interpreted consistently with the Acts Interpretation Act 1901 (Cth) (the “Interpretation Act”). One rule relevant to the interpretation of s.366 of the Act is laid out in s.36(2) of the Interpretation Act, which states:

“If:

(a)  an Act requires or allows a thing to be done; and

(b)  the last day for doing the thing is a Saturday, a Sunday or a holiday;

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.”

[5] Section 36(2) of the Interpretation Actoperates to provide leniency to an applicant whose ordinary 21 day timeframe finishes on a Saturday, Sunday or public holiday. In such a case, s.36(2) of the Interpretation Act has informed a reading of s.366 of the Act which allows the Applicant to submit their application the next day that is not a Saturday, Sunday or Public holiday. In the facts at hand, the first day of the Applicant’s ordinary 21 day timeframe fell on a Saturday. In the interest of fairness, I have explored whether s.36(2) of the Interpretation Act could provide similar leniency to an applicant whose first day of a timeframe is a Saturday, Sunday or holiday.

[6] Concerning whether s.36(2) of the Interpretation Actcan be used to extend a statutory timeframe in circumstances other than when the last day of the timeframe falls on a Saturday, Sunday or a public holiday, Williams J in Associated Dominions Assurance Society Pty Ltd v Balmford [1950] HCA 30, said at p.181

“If a period complying with s. 55 of the Life Insurance Act had been specified which ended on a Sunday, s. 36 (2) of the Acts Interpretation Act would have enlarged the period until the following Monday. But the last day of a period of at least fourteen days from the day of the service of the notice would have expired on a Monday and not on a Sunday, and s. 36 (2) would not have come into operation.” 1

[7] Section 36(2) of the Interpretation Actwas amended in 2011. Thus, the provision that Williams J was interpreting was not identical to the the Interpretation Act as it stands today. Regarding the effect of the 2011 amendment Bell, Keane and Gordon JJ in Minister for Immigration and Border Protection v Kumar [2017] HCA 11 said at [20]:

“Where an Act has expressed a particular idea in a form of words and a later Act appears to express the same idea in a different form of words for the purpose of using a clearer style, the ideas are not to be taken to be different merely on that account.”

[8] The Interpretation Act’sExplanatory Memorandum clearly expresses that the amendment to Section 36(2) was intended to clarify the Act without changing its operation. At [225], the Explanatory Memorandum states:

“The rationale for the amendment is to make section 36 more user friendly. It does not substantively change the existing policy.”

[9] It follows that the first day of the Applicant’s timeframe falling on a Saturday, Sunday or holiday does not affect the date of the final day of the ordinary statutory period.

[10] As the Application was lodged outside of the twenty-one-day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed.

[11] Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) states:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[12] It is clear from the structure of s.366(2) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[13] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances.

[14] On 29 July 2019, I convened a Directions Hearing to outline how the Commission would determine whether the Applicant be granted a further period to make their application. By consent, the Applicant and the Respondent agreed to a timetable for filing their Outlines of Submission, any witness statements and other documentary material on which they intended to rely. The Applicant and the Respondent also agreed that the Application would be determined upon the materials filed. In the Directions Hearing, I directed the Applicant and the Respondent to the five factors that must be taken into account pursuant to paragraphs (a) to (e) of subsection 366(2) of the Act as outlined below.

The Applicant’s Case

[15] The Applicant filed an outline of submissions by an email at 15:59 on 15 August 2019. The Applicant refiled his submissions at 16:24 on 15 August 2019. The Applicant cited minor errors as the reason for the resubmission. The Applicant’s amended submissions stated:

“I, Kshaur Ramesh-Kumar of 23 Cobbler Grange, Lynbrook, Victoria 3975 make this statement in support of my application to deal with contraventions involving dismissal:

1. My name is Kshaur Ramesh-Kumar. I am 28 years of age and reside at 23Cobbler Grange, Lynbrook, Victoria 3975.

2. I believe that my application for hearing of my out of time application should be accepted due to exceptional circumstances present in that I:

3. Contacted the Fair Work Commission via Phone at 13:53 of 28/06/2019.During the course of the conversation we discussed my deadline for lodgement with reference to the page 134 General Protections Benchbook. We spoke in relation to the fact that if the final day of the 21 day period falls on a weekend that the last day for the deadline would be the following Monday; confusion here led me to believe that my deadline for submission was 1/07/2019

4. My former employer failed to provide my Employment Separation Certificate (which I believed I required for my Application) until 1/07/19, despite my previous requests (see Appendix A); once recieved I lodged the Application immediately.

5. The Respondent only provided their F8A in response to my Application on August 5th 2019, rather than 7 calendar days after served with my F8 per the Fair Work Commission’s instructions (Appendixes B & C)

6. My Application was lodged only 1 business day after the deadline due to a simple and honest misunderstanding of verbal FWC instructions on my part. I believe that so short a period of lateness will have caused negligible hindrance to the Respondent’s ability to reply to my Application. To dismiss my application based on 1 business day’s lateness yet at the same time allow the Respondent greater than 7 days to respond to the F8 would, I believe, show prejudice in favor of the employer.”

(Submissions appear in their original form)

The Respondent’s Case

[16] The Respondent filed an outline of submissions by an email dated 3 September 2019 that stated:

“The below statement is provided in response to the Applicants out of time submission received on the 15th August, 2019. As requested by Deputy President Cross during the Directions meeting held on the 29th July 2019, our response captures and addresses the five exceptional circumstances.

“Exceptional circumstances” has been defined in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975. There the Full Bench said at para 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.”

1. Reason for the delay; the Applicant stated in his submission that he contacted the Fair Work Commission via phone at 13:53 on the 28th June, 2019 in regards to the deadline of his lodgement. Nissan Financial Services Australia (NFSA) is confident that the representative at the Fair Work Commission would have understood the statutory time limit for the submission of the application and would have advised the applicant accordingly during his call on the 28th June, 2019.

The Applicant’s termination date was the 7th June, 2019 and this was communicated clearly to the Applicant both verbally and in writing. As outlined in the General Protections Benchbook (referenced by the Applicant), the 21 days for lodgement does not include the date that the dismissal took effect. This means that day one commences the day following the dismissal. The General Protections Benchbook also clearly states that Public holidays or weekends that fall during the 21 days will not extend the period of lodgement. The Applicant was required to submit his application by the 28th June, 2019. The Applicant notes that his submission was one business day past deadline, failing to recognise and acknowledge that his submission was actually three calendar days late. Despite the Applicant stating that the short period of lateness was a simple and honest misunderstanding of the Fair Work Commission’s instructions, in the case of C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, Deputy President Gostencnik concludes that:

“Applications seeking relief from unfair dismissal must be made within 21 days after the dismissal takes effect. Only in exceptional circumstances should the Commission consider allowing a further period. Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances. Weighing all of the matters set out in s 394(3), there is nothing in the evidence before me to establish that there are exceptional circumstances warranting consideration of the exercise of my discretion to allow a further period within which the Applicant may lodge an unfair dismissal remedy application.”

The Applicant refers to the failure of NFSA to provide an Employment Separation Certificate “which the Applicant believed he required for the application”. The termination letter was provided to the Applicant in person. This document clearly outlines the final date of employment, an employment separation certificate was not required for submission.

NFSA does not consider ignorance of legislation to constitute exceptional circumstances. The Full Bench also confirmed this to be their opinion in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (para 14).

2. Any action taken by the person to dispute the dismissal; NFSA confirms that there was no attempt by the applicant to dispute the dismissal.

3. Prejudice to the employer (including prejudice caused by the delay); NFSA confirms that there was no prejudice to the employer. However, it should be noted that the Applicant raised the F8A form submission date as the 5th August 2019. It is important to highlight that during the Directions meeting held on the 29th July, 2019, at which the Applicant was present, it was agreed with Deputy President Cross that NFSA would provide the F8A form no later than the 6th August, 2019. This was ahead of the 15th August, 2019, the date by which the Applicant was required to submit his application, providing the Applicant with ample time to complete his submission.

4. Merits of the application; NFSA strongly dispute that Discrimination on the grounds of Disability (s.351) has occurred and therefore believe the application has no merit. As the Applicant was terminated within his probation for failure to meet the performance and behavioural expectations, there has been no breach of the general protections provisions (s.340).

The Applicant was well aware that he was failing to achieve the necessary standards relating to core activities of his Settlements role and that he was not meeting expectations as it related to organizational behavioural standards. As demonstrated in the F8A form submitted by NSFA, feedback was provided on numerous occasions. The Applicant had frequent informal and formal discussions with Team Leaders and the Settlements Manager during his tenure.

The Banking and Finance Industry is highly regulated and all staff activities are closely governed by policies/procedures, laws and regulatory guidelines. Accuracy is an imperative part of the Settlements role and despite the provision of additional training/support over and above that of other team members, the Applicant’s deficiencies in this area continued. The Applicant also had low performance relative to his team/peer group.

The Applicant was repeatedly provided feedback around his punctuality with lateness equating to 7+ hours over his tenure with NFSA. He was frequently late to work, late back from breaks and also late returning from lunch. The Applicant requested a fixed rostered start time of 9.30am, the business agreed by way of showing support for improvement. Unfortunately this support saw no change in behaviour.

The Applicant was provided access to a company lease vehicle as a salary package benefit, after a car accident on the 1st May, 2019 the Applicant neglected to provide the necessary Police Report as support documentation as per company policy and direction. This needed to be followed up on a number of occasions and was only received post termination on the 17th June, 2019. The Applicant again demonstrated a lack of regard for guidelines and directions when following his termination he failed to return his company vehicle on the 14th June, 2019, instead returning the vehicle 3 days late. NFSA gave the Applicant the opportunity to hold onto his vehicle for an additional week post his termination date to aid his transition/exit from the business. These are other behavioural examples, evidence of the Applicant’s inability to follow instructions provided to him.

There were multiple examples of performance deficiencies along with behavioural challenges that were consolidated for a dismissal determination, as demonstrated by the support documentation submitted in conjunction with the F8A form.

5. Fairness as between the person and other persons in a like position; NFSA can confirm in the last 5 years it has not received a late application submitted to the Fair Work Commission.

In conclusion, NFSA does not deem the reasons provided by the Applicant to fit the exceptional circumstances as defined by the Act.

Additionally, it is important to highlight that the Applicant made an amendment to his out of time submission paperwork after the 4:00pm deadline on the 15th August, 2019. The Applicant also failed to follow the instructions of the Deputy President in providing his submission in a manner/structure which addressed each of the five considerations. These examples again demonstrate a pattern whereby the Applicant has a lack of regard for timeline adherence, instructions and attention to detail. All of which were repeatedly displayed during his tenure at NFSA as a Settlements Officer and considerations in his termination during probation.”

(Submissions appear in their original form)

The Applicant’s Reply

[17] The Applicant filed an outline of submissions in reply by an email dated 18 September 2019 that stated:

“The below statement is provided with respect to the Respondent’s outline of submissions received on the 3rd of September, 2019. As requested by Deputy President Cross during the Directions meeting held on the 29th July 2019, this submission addresses the five categories which constitute exceptional circumstances as per the Fair Work Benchbook; I offer sincere apologies if formatting of my previous submission was inadequate (as the Respondent suggests); this process is new to me and I was acting in accordance with directions as I understood them. I have made my response via a series of dot-points relating to each of the five categories; I hope that this will be sufficient in the eyes of the Commission.

1. Reason for the delay:

•  The Respondent seems to contend that because I did not fully understand the procedure for calculating statutory deadlines by the Commission that I should be penalized; I however disagree that I should have to forfeit my Industrial Rights because I am not familiar with the ins-and-outs of Industrial Relations Laws or the Fair Work Act - legislation which is not immediately relevant to conducting the duties of my primary occupation nor my fields of study.

•  I waited until a Separation Certificate was provided to me before lodging my claim with the Commission as I doubted that the Respondent was acting in good faith so I wanted to have an official document stating reasons for my dismissal (as no reasons had been provided per my Termination Letter which was signed only by my Line Manager; not a HR representative, nor an Executive). I will note that the Separation Certificate provided by the Respondent did not indicate the reason for Termination as ‘underperformance’, even though there was a checkbox present for such a circumstance, but that instead, the Respondent wrote in that I was simply ‘Terminated during Probationary Period’ with no further elaboration. I contend that the reason for this is that the Respondent intended to retroactively manufacture a history of ‘poor performance’ where there was never one present. I make reference to the graph provided by the Respondent with no data to back up the figure in question.

2. Any action taken by the person to dispute the dismissal:

I can confirm that I did not attempt to dispute the dismissal, outside of my objections raised during my termination meeting on June 7th, 2019, attended by Mrs Samantha Senn and Ms Angela Corbitt. The reason for this is that objections raised during the meeting were summarily dismissed by Ms Corbitt, indicating to myself that this route for disputation was not feasible.

3. Prejudice to the employer (including prejudice caused by the delay):

•  In addition to my initial submission (dated the 15th of August, 2019) wherein I raised the delay in the Respondent’s submission of their F8A Form, I would like to highlight that during the July 29th Directions meeting, I did not raise objection to the Respondent’s failure to submit this document in a timely manner. I did not object to the Respondents delayed submission schedule during the course of this meeting as I believed it vital that Deputy President Cross be provided with all relevant information in relation to the matter so that he may make a valid decision rooted in knowledge of the ‘entire picture’, rather than seeking to dispossess the Respondent of the ability to provide this. Unfortunately this same courtesy has not been extended to me by the Respondent who sought to hinder my ability to submit this Statement which was delayed by the birth of my first child.

•  Further to the above, I would argue that lateness of submission would provide greater benefit to an organization of hundreds of individuals, with Corporate Counsel on payroll (i.e. the Respondent), than to an individual such as myself, attempting to navigate this process (foreign to myself) on my own; a greater number of manhours could potentially be devoted to the task by the Respondent for each day over deadline, than the amount that I am physically able to muster as an individual.

4. Merits of the application:

•  Despite the Respondent’s claims, no mention of underperformance, nor any issue relating to my handling of my lease vehicle, were ever made to myself in relation to my termination - rather, the sole reason was given as ‘lateness’.

•  Prior to commencing by role with Nissan FInancial Services in January 2019, I was hired by Mercedes-Benz Financial Services (MBFS) in May 2017 (an organisation I hold to be infinitely more professional in their dealings than NFSA). I had initially applied for a ‘Contract Administrator’ role, however another Applicant was hired for the job; nevertheless MBFS saw fit to create a Temporary Settlements Officer Role in order to bring me aboard the organisation. The duties of this position correspond directly with the role I would later perform at NFSA, falling under the same Financial Sector Regulations and Legislation mentioned by the Respondent. I was made permanent within 6 months of commencement and remained on staff for 1 year 7 months with no complaints in relation to my performance whatsoever; this demonstrates my ability to adhere to guidelines and timeframes in an almost identical setting to my role at NFSA, contrary to what the Respondent would have you believe. I resigned from my role with MBFS, of my own volition, in late December 2018 inorder to pursue the opportunity with NFSA.

•  I was never given the opportunity to supply any kind of documentation from my doctor in relation to my disability, despite the Respondent’s claims. In past, I have routinely submitted such documents to my University (Monash University, Clayton Campus) and was also registered with the Disability Liaison Unit at the University based upon advice provided by my doctor. Had a similar opportunity to provide advice from my doctor been afforded to me by the Respondent, nothing would have hindered my provision of said documentation; no opportunity as such was extended by the Respondent.

•  I was not offered training or feedback despite 6 requests for a progress report over the course of 5 months; other new starters being offered constant training.

•  NFSA’s own internal Workplace Behavioural Grievance Procedure (attached) was not followed after I made a verbal complaint about a potential conflict of interest in relation to my Team Leader, Brandon Todd, during the course of my employment. I made the complaint to Settlements Manager Samantha Senn that I had noticed that work allocated to me in Mr Todd’s absence (he was away on leave at the time) was not as complicated as work assigned to me by himself when present. Mr Todd had, in the past, made reference to the fact that he was close friends with a former colleague of mine who held a grudge against me in my former position at MBFS; I communicated to Mrs Senn that this fact made be feel paranoid and anxious as I could see a potential motive for sabotage were Mr Todd was concerned. Instead of following the attached policy, and informing HR of my complaint, Mr Senn delayed meeting with me for 4 weeks, until Mr Todd returned from holiday, and then proceeded to ‘ambush’ me, in a 2:1 meeting in which the individual I had initially raised concerns about was present. This solidified in my mind that management was acting in ‘bad faith’, where my rights as an employee were concerned. I believe this to be the primary reason that Mrs Senn and Mr Todd sought to summarily dismiss me from my role - that their own violation of Internal Policy would be exposed if I was allowed to communicate my experiences with HR.

•  0930 start times were offered to all staff, not just to myself (as management indicated that they wished to schedule two separate ‘shifts’ for members of the team; one commencing at 0830 and one at 0930). I therefore do not consider this to be an accommodation made by the Respondent to help me manage my disability but rather an option offered to all staff within the Team, which I, myself, chose to pursue in order to diminish the possibility of future ‘lateness’.

•  Respondent twice denied to accommodate for the recent birth of my first child delaying my ability to compile my outline of submissions by the original deadline. Instead, the Respondent contended that this was an example of my ‘inability to follow guidelines and timeframes’. It is important to note that the Respondent did not enquire as to the projected due date of the delivery (which they claim would have been known in advance), nor the circumstances of the labor: had they enquired, I would have informed them that we had a false alarm on the 8th of September (where we attended the hospital at 2am); presented at the hospital again at 9am on the 10^th of September for the labor (which lasted 11 hours, and also required an episiotomy to be performed on my wife); this means that rather than just grappling with parental duties post-delivery, I also had an obligation to nurture my wife in order to aid her in her own recovery. This solipsism and specious reasoning on the part of the Respondent is characteristic of NFSA’s attitude during my employment in relation to my illness; they assumed that all conditions surrounding the birth were perfect, disregarded the possibility of the presence of any complicating factors without even attempting to enquire (as they had done in relation to my disability) and designated my communication of circumstances to simply be fraudulent ‘excuse-making’ on my part.

5. Fairness as between the person and other persons in a like position:

The Respondent confirmed in their previous submission that in the last 5 years they had not received a late application submitted to the Fair Work Commission, however I do not have access to the necessary information to corroborate, nor refute this statement.”

(Submissions appear in their original form)

Consideration

[18] I will turn then to the particular matters to which regard must be had.

(a) The reason for the delay

[1] The Applicant’s submissions dated 15 August 2019 provides two explanations why his application was delayed. Firstly, the Applicant states that he mistakenly believed his ordinary statutory period finished on a Saturday and thus he believed that he was able to submit his application on the following Monday. Secondly, the Applicant claims he believed he needed his former employer to provide a Separation Certificate before he lodged his application.

[2] The Applicant’s submissions appear to contradict themselves. As provided above, his submissions detail two reasons why his application was late. Despite this, in the final paragraph of his submissions, he states, “My Application was lodged only 1 business day after the deadline due to a simple and honest misunderstanding of verbal FWC instructions on my part.” With this statement, the Applicant seems to submit that the singular reason for his delay was his mistaken belief that his ordinary statutory period was to finish on a Saturday and thus he believed that he was able to submit his application on the following Monday. This statement draws the credibility of the Applicant’s explanation for a delay into question.

[3] A full bench of the Commission in Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251 (Cheval)stated at [17] to [18]:

“[17] It is apparent from the Commissioner’s decision that in being satisfied there were exceptional circumstances, the Commissioner does not consider Ms Smithers’ failure to provide a credible reason for her delay between 8 and 21 January 2010 in making her unfair dismissal remedy application to FWA.

[18] The Commissioner’s failure to take into account such a matter is an appealable error of the type set out in House v The King. Such a matter should have been a material consideration in the Commissioner’s decision as to Ms Smithers’ reasons for delay and whether she was satisfied there were exceptional circumstances.” (my underlining)

(reference omitted)

[4] I note that the Full Bench in Chevalrequires a credible reason for the delay. Even if I am to make a positive finding of the credibility of the Applicant’s explanation, the Applicant’s reasons for delay are to be given little weight when determining exceptional circumstances.

[5] The Applicant’s reasons for delay can be characterised as misunderstanding the correct application of s.366 (1) of the Act.

[6] A Full Bench of Fair Work Australia in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 stated at [14]:

“Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

[7] When applying the above authority, the facts at hand raise the issue of whether there is a distinction between being ignorant of the ordinary statutory timeframe and misunderstanding its application.

[8] In similar circumstances where an applicant claimed that the Commission’s registry provided misleading information, the Commission has found no such distinction. Deputy President Sams in Melissa Fagone v Hilton Hotels of Australia Pty Ltd t/as Hilton Sydney[2013] FWC 2513said at [65]:

“All of these explanations cannot withstand the scrutiny of being able to be characterised as ‘exceptional circumstances’ within the meaning of s 394 of the Act. The first three when viewed together, appear to constitute at least an ignorance of the law or, more properly its correct interpretation (See Nulty at para [14]).”

[9] The Applicant has provided a reason for the delay, however, by his own admission, it was due to a misunderstanding that he formulated himself. I am not persuaded that there is an acceptable reason for the delay and this weighs in the Respondent’s favour.

(a) Any action taken by the person to dispute the dismissal

[1] The Applicant’s submissions in reply acknowledge that outside of the objections they raised during their termination meeting, they made no attempt to dispute the dismissal. The Respondent confirmed that no action was taken to dispute the dismissal. No weight can be given to this consideration.

(a) Prejudice to the employer (including prejudice caused by the delay)

[1] The Applicant’s submissions and submissions in reply claim that the Respondent filed its Form F8A late. Further, the Applicant alleged that due to the size and sophistication of the Respondent, it would get more benefit from submitting its Form F8A late. The filing date of a Form F8A is not relevant to a determination of whether an applicant should be granted an extension to the ordinary statutory timeframe for submitting their originating application.

[2] The Respondent confirmed that there was no prejudice to the employer by the Application being filed late. No weight can be given to this consideration.

(a) The merits of the application

[1] This is a General Protections claim. In order to maintain such a claim, an applicant must show that an adverse action took place and that this action took place because of a protected reason. There is no dispute that adverse action in the form of a dismissal occurred.

[2] The Applicant’s Form F8 claims that he was dismissed because he exercised a workplace right, in that he asked for a support person to be present in a disciplinary meeting. The Applicant’s Form F8 further claims that the termination was due to his disability rendering him unable to be punctual.

[3] The Respondent’s submissions contest both of the Applicant’s allegations and provide an alternative explanation for the Applicant’s termination. The Respondent claims that the Applicant continuously underperformed and that this was the reason for their dismissal.

[4] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[5] As these matters are contested, I am unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(a) Fairness as between the person and other persons in a like position

[1] Neither party made any material submissions on this issue, nor did any party bring to my attention any relevant Decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[2] As discussed above, to grant an extension of time, I must satisfy myself that there were exceptional circumstances. A Full Bench of Fair Work Australia in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 stated at [13]:

“[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.”

[3] When making this determination, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[4] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis)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 (sic) 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 (sic) the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”

(Emphasis added)

[5] Although the Application was filed only three days late, the Applicant has not established that when viewed holistically the circumstances are out of the ordinary, unusual, special or uncommon. The appropriate weight assigned particularly to both the merits of the case and the reason for delay do not elevate the circumstances to the status of exceptional.

[6] Therefore, I am not satisfied that the Commission has jurisdiction to hear the claim and I order that the Application is dismissed.

DEPUTY PRESIDENT

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 1   Associated Dominions Assurance Society Pty Ltd v Balmford [1950] HCA 30; (1950) 81 CLR 161 at 181 per Williams J, 181-182 per Webb J, 186-187 per Fullagar J.