Lachlan Robinson v Bolt Up Mining Pty Ltd

[2024] FWC 1009

[2024] FWC 1009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lachlan Robinson
v

Bolt Up Mining Pty Ltd

(U2024/2459)

DEPUTY PRESIDENT DEAN CANBERRA, 18 APRIL 2024

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances.

1. Mr Lachlan Robinson (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed by the Bolt Up Mining Pty Ltd (Respondent).

1. 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 Applicant states in the application that his dismissal took effect on 7 February 2024 and the application was made on 4 March 2024, which is 5 days outside the 21 day period.

1. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

1. The matter was listed for hearing on 17 April 2024. The Applicant appeared on his own behalf and Mr M Borghero appeared for the Respondent.

2. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only 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]

1. The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

1. 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.

1. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

Reason for the delay

1. The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 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]

1. The reason given for the delay by the Applicant was that he was actively trying to resolve a dispute about his final payment directly with the Respondent. Briefly, the Applicant had resigned on 29 January 2024 giving two weeks’ notice. The Respondent said it notified the Applicant on 7 February 2024 that he was not required to work the remaining notice period and the last four days of his notice period was waived. The Applicant was not paid for this four-day period.

1. In addition, the Applicant gave evidence that he was forced to relocate to live with his parents as he could not afford to pay rent, and his new role in Sydney meant he was leaving home at 4am and not returning home until 7:30pm each day, leaving no time to make this application.

1. Finally, the Applicant gave evidence he was unsure if he had a legal right to challenge the matter and it took time to ascertain his rights.

1. In the circumstances, I am not satisfied that the reasons for the delay advanced by the Applicant are exceptional. While it is understandable that the Applicant would want to resolve the issue directly with the Respondent, this is not an acceptable reason that would excuse making the application within the statutory time frame. Likewise, there is nothing out of the ordinary or unusual about long working days or being unsure about legal rights.

1. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

1. There is no dispute the Applicant resigned and was aware of the date his employment ended. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

1. The Applicant sought to engage with the Respondent about his final payment and it is clear he disputed the correctness of this payment. However, there is no evidence the Applicant took action to dispute any dismissal.

1. Overall, I consider that this criterion does not weigh in favour of finding that there are exceptional circumstances.

Prejudice to the employer

1. While I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

1. 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 her application, the Commission should not embark on a detailed consideration of the substantive case.

1. The Applicant resigned his employment. He contends the Respondent’s interpretation of the applicable enterprise agreement about notice periods is incorrect, and that by refusing to pay him out the balance of his notice period it may constitute a termination of his employment at the initiative of the employer.

1. The Respondent contends it was able, in accordance with the terms of the enterprise agreement, to ‘waive’ the period of notice beyond what an employee is required to provide, and this does not constitute a dismissal.

1. The merits of the application turn on contested legal issues which would need to be properly examined if an extension of time were granted and the matter were to proceed. As a result, it is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

1. 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 an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

1. Neither party made any submission about this criterion and as such I consider this to be a neutral consideration.

Conclusion

1. Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

L Robinson on his own behalf.
M Borghero for Bolt Up Mining Pty Ltd

Hearing details:
2024.
By telephone:
April 17.

[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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