Kyle Nicholas Dobson v Supercheap Auto
[2023] FWC 3203
•6 DECEMBER 2023
| [2023] FWC 3203 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kyle Nicholas Dobson
v
Supercheap Auto
(U2023/8902)
| DEPUTY PRESIDENT LAKE | BRISBANE, 6 DECEMBER 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Mr Kyle Dobson (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 Supercheap Auto (the Respondent).
The Applicant commenced employment with the Respondent around December 2004 and was notified of his dismissal on 16 June 2023. The dismissal was effective on the same day.
The Applicant lodged his application on 15 September 2023. The application was lodged 70 days outside the statutory time limit prescribed by s.394(2) of the Act.
The question before me is therefore whether the Applicant should be granted an extension of time to lodge his application pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.
Directions were issued and material was filed by each party. A hearing was held before me on 29 November 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]
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 submitted the following reasons for the delay:
“Honestly, what I’m about to state was my main reason lodgement was outside of the allocated time frame. The Unfair Dismissal application F2 form in its downloadable / transferrable docx format was very inaccessible (I couldn’t get it to work at all. I couldn’t edit in my responses to any of the questions) After trying a few times to get the Microsoft Wordpad (Clunky and not very streamlined) to allow the edit of the form, I had to edit the original F2 form many many times as the original sentences, in their original layout, were running off the margins of the page. I didn't realize I was missing part of the question or my response at first until I proofread everything again. Which I had to also do quite a few times
Secondly (Not the fault of the form), I had to buy a new printer. At the time I couldn't afford to purchase a new printer, as I was unemployed and was trying not to spend money unnecessarily. Not long after I did so though. These would have to be my reasons as to why it took so long for me to file an "Unfair Dismissal application", claim in general, outside of the 21 days lodging period.
Those reasons alone and being fired from my job of almost 20 years, I took a gut punch to my confidence, self worth and my mental health. Only after speaking to family and gathering support from them, did they encourage me to file for an unfair dismissal claim. Again, I would have never quit my job at Supercheap Auto. I enjoyed it very much, but I was happy to potentially start a new chapter in my life being that I had been dismissed from my role at Supercheap Auto. Having a reason to learn a completely new set of skills and starting a new career somewhere else in the not too distant future.”
I am not satisfied with the Applicant’s first reason of delay which was that he was unable to complete the Form F2 form, or his second reason that he did not have access to a printer. He could have contacted the Fair Work Commission for assistance. The Applicant had not adduced any evidence regarding his technical difficulties of filing the form.
There are many Applicants who come to the Commission in person, call the Commission, send an email to the Commission regarding their unfair dismissal claim. The Applicant could have elected to use the Commission’s Online Lodgement service, accessible on the Commission's website, which would have removed the need for him to download a Microsoft Word version of the form at all.
Alternatively, the Applicant could have printed a physical copy of the form. While the Applicant stated that he did not have access to a printer following his dismissal, it does not appear that the Applicant took any steps to print the form via alternative means, such as with the assistance of family or by visiting a public library or attending a printing place such as Officeworks. The Applicant cannot ‘simply sit on his hands and do nothing’.[8]
Technical difficulties of filling out the form are not exceptional circumstances does not account for a 70-day delay. Being unaware of the requirement to lodge an unfair dismissal application within 21 days of the dismissal is not an acceptable reason for delay.[9]
I do accept that the Applicant being fired from a role from 20 years would affect his ‘confidence self-worth and mental health’ which could cause delay. However, the Applicant had been put on a Performance Improvement Plan from 6 January 2023, with follow up meetings on 7 February 2023, and was warned formally about his performance. On 29 March 2023, the Applicant was given a final warning regarding his poor performance. On 16 June 2023, the Applicant was called to meet regarding his performance.
The shock of the dismissal would not explain a 70-day delay considering that the Applicant was aware that dismissal could occur if he had continued to not perform to the required standard from at least March 2023. Furthermore, the Applicant has not adduced any medical evidence or evidence in support of the delay of lodging the application. Without such evidence, I do not consider this an acceptable reason for the delay.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant was aware of the dismissal on 16 June 2023. The dismissal took effect during a meeting between the Applicant and the Respondent’s Store Manager, Mr Nathan Ververka on 16 June 2023, where the Applicant was informed both verbally and in writing of his dismissal.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not take any action to dispute his dismissal.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
The Respondent submitted that it would suffer prejudice in defending the application, due to the disruption, expense and the period of time that has elapsed since the dismissal. The Applicant did not make any submissions regarding prejudice to the employer.
I consider this factor as a neutral consideration.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[10] 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. However, on the material before me, it appears that the Applicant was given multiple notices about his poor performance when he was put on a Performance Improvement Plan and given multiple warnings regarding his performance.
The main contention would be whether the Applicant was put on a Performance Improvement Plan due to a valid reason. This could only be determined through conducting a hearing to test the merits.
I consider this factor as a neutral consideration as it is sufficient for the Commission to establish the substantive application was not without merit.
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.[11]
Deputy President Colman found in McBride v JA Krieger Forestry Services that a person being unaware of the requirement to lodge an unfair dismissal application within 21 days of the dismissal is not an acceptable reason for delay.
In Cedric Moses Kato v Hub24 Management Services Pty Ltd,[12] Commissioner Ryan found in the instance of technological difficulties that the absence of an acceptable explanation without evidence to support the exceptional circumstance weighs against a conclusion of acceptable circumstances even when an application is 1 minute late.
This consideration does not weigh in favour of a finding of exceptional circumstances.
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:
K. Dobson for the Applicant.
J. McLaughlin from HR Assured on behalf of the Respondent.
Hearing details:
29 November 2023.
Hearing via Microsoft Teams.
Brisbane.
[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] Volchkov v Cantek Pty Ltd [2018] FWC 4710 at [7].
[9] McBride v JA Krieger Forestry Services[2021] FWC 6284 at [5] (Colman DP).
[10] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[11] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].
[12] [2023] FWC 1377 at [16] referring to Stogiannidis v Victorian Frozen Food Distributors Pty Ltd[2018] FWCFB 901 at [39].
Printed by authority of the Commonwealth Government Printer
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