Lachlan Orringe v Protek Carpentry & Fencing Services Pty Ltd
[2024] FWC 2501
•17 SEPTEMBER 2024
| [2024] FWC 2501 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Lachlan Orringe
v
Protek Carpentry & Fencing Services Pty Ltd
(U2024/7447)
| COMMISSIONER LIM | PERTH, 17 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed.
What is this decision about?
On Thursday 6 June 2024, Mr Lachlan Orringe was dismissed by his employer, Protek Carpentry and Fencing Services Pty Ltd, for breaches of workplace policies. On Friday 28 June 2024, Mr Orringe filed an unfair dismissal application with the Commission under s 394 of the Fair Work Act 2009.
An unfair dismissal application must be made within 21 days after the dismissal took effect;[1] or, within such further period as the Commission allows.[2] In Mr Orringe’s case, the period of 21 days ended at midnight on Thursday 27 June 2024. His application is one day out of time.
Mr Orringe seeks an extension of time for his application. Protek opposes this.
The Commission may extend the period to lodge an unfair dismissal application if satisfied that there are exceptional circumstances that justify doing so. To determine whether there are exceptional circumstances, I must consider the factors in ss 394(3)(a)–(f) of the Act.
I conducted a determinative conference via Microsoft Teams on Wednesday 4 September 2024. I granted permission for Protek to be represented by Ms J Beeson.
Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that Mr Orringe’s circumstances are not exceptional. His application must be dismissed.
The detailed reasons for my decision follow.
Should an extension of time be granted?
The Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.[3]
It is well established that:
Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon.[4]
The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[5]
Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[6]
In determining whether there are exceptional circumstances, I must consider the criteria in s 394(3) of the Act. I set out my consideration below.
2.1 Reason for the delay
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[7]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[8]
Mr Orringe’s evidence is that on Tuesday 4 June 2024, he called a law firm for advice about his impending dismissal. He did this before he was terminated. Mr Orringe did not hear back from this law firm, and so proceeded to file his application by himself.
Mr Orringe says that he was not aware of the deadline for filing, but also that he thought he had made his application within time.
It is also well established that lack of awareness about the law, without more, is not a satisfactory explanation or an indicator of exceptional circumstance.[9]
I find that Mr Orringe has not provided that ‘more’. I accept that he either did not know about the 21-day deadline or miscalculated the 21-days. I am not persuaded that this is a satisfactory reason for the delay. This is a factor that weighs against a finding of exceptional circumstances.
2.2 Whether the person first became aware of the dismissal after it had taken effect
On Thursday 6 June 2024, Ms Vigar sent Mr Orringe’s termination letter to his personal email address. She also sent a text message to Mr Orringe. Mr Orringe agreed with this. I find that Mr Orringe became aware of the dismissal when it took effect. I find that this is a neutral consideration in this matter.
2.3 Action taken to dispute the dismissal
Mr Orringe did not take any action to dispute his dismissal. I find that this is a factor that weighs against a finding of exceptional circumstances.
2.4 Prejudice to the employer (including prejudice caused by the delay)
Given that the delay was only one day, I find that there is no prejudice to Protek. However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[10] In these circumstances I treat this consideration neutrally.
2.5 Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[11] Further, the primary consideration is whether Mr Orringe has an arguable case.[12]
It was difficult to understand the timeline of events that led to Mr Orringe’s dismissal. This was because Mr Orringe did not lead much evidence and Protek did not lead any evidence at all, instead making submissions on the events.
From Mr Orringe and Ms Beeson, I understand the following:
(a)Prior to Monday 20 May 2024, Mr Orringe was stood down under investigation into a separate issue. Mr Orringe’s responses in that investigation had been accepted by Protek.
(b)Neither Mr Orringe nor Ms Beeson could satisfactorily explain whether Mr Orringe had been given a return-to-work date or instruction.
(c)On Monday 20 May 2024, Mr Orringe was told that he would be required to pass a random drug and alcohol test.
(d)Mr Orringe advised that he would not pass the drug and alcohol test as he had used cannabis on the weekend.
(e)Mr Orringe then took a drug and alcohol test at an unspecified time, which showed prior use of cannabis.
(f)Protek asked Mr Orringe to show cause as to why his employment should not be terminated given the drug test result and three written warnings on his personnel file. Mr Orringe did not participate in the show cause process.
(g)On Thursday 6 June 2024, Protek dismissed Mr Orringe.
The submissions from Protek were not helpful in understanding the matter. However, as the applicant, the onus is on Mr Orringe to make out his case and he provided limited evidence.
Given the limited evidence provided and the contested nature of the relevant events, I am unable to make any merit findings at this preliminary stage. I find that this is a neutral factor in assessing whether there are exceptional circumstances.
2.6 Fairness as between the Applicant and other persons in a similar position
The parties did not make any submissions on this point. I find that this is a neutral consideration.
Conclusion
I have found that the considerations in s 394(3) of the Act in this matter are either neutral or do not support a finding of exceptional circumstances.
Having considered all the circumstances of this matter and the factors in s 394(3), I am not satisfied that there are exceptional circumstances.
As Mr Orringe’s application was lodged beyond the initial period provided by s 394(2)(a) of the Act and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis I order that Mr Orringe’s application be dismissed.
COMMISSIONER
Appearances:
L Orringe, Applicant.
J Beeson for the Respondent.
Determinative Conference details:
2024.
Perth by Video using Microsoft Teams:
4 September.
[1] Fair Work Act 2009 (Cth) s 394(2).
[2] Ibid s 394(2)(b).
[3] Ibid ss 394(2)–(3).
[4] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[5] Ibid.
[6] Ibid.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[8] Ibid at [40].
[9] Nulty v Blue Star Group[2011] FWAFB 975 and Miller v Allianz Insurance Australia[2016] FWCFB 5472.
[10] Jovcic v Coopers Brewery Limited [2023] FCA 797.
[11] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[12] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32]–[34].
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