Lachlan Wignall v White Sneakers Pty Ltd T/A a Loft Story
[2018] FWC 3334
•7 JUNE 2018
| [2018] FWC 3334 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lachlan Wignall
v
White Sneakers Pty Ltd T/A A Loft Story
(U2018/2970)
DEPUTY PRESIDENT DEAN | SYDNEY, 7 JUNE 2018 |
Application for an unfair dismissal remedy.
[1] This is an edited version of a decision which was issued ex tempore on 7 June 2018.
[2] On 7 March 2018 Mr Lachlan Wignall attempted to lodge an application pursuant to s.394 of the Fair Work Act 2009 claiming that he had been unfairly dismissed by White Sneakers Pty Ltd T/A A Loft Story (Loft Story).
[3] After making inquiries with the Commission, Mr Wignall subsequently discovered that his application had not been received, and filed it via email. This application was received by the Commission on 22 March 2018, which was 2 days beyond the 21 day statutory time limit for the lodgement of unfair dismissal applications.
[4] On 27 April 2018, Loft Story filed its Employers Response, objecting to the application on the ground that Mr Wignall had filed his application outside of the prescribed 21 day time limit.
[5] On 24 May 2018, correspondence was sent by the Commission to Loft Story:
“….the Commission’s IT records indicate that Mr Wignall did attempt to lodge an unfair dismissal application on 7 March 2018, and the Commission received payment of the filing fee for his application at this time. Due to a system error, the application form was not received, despite the lodgement fee having been paid.
In light of this, the Deputy President advises that she intends to exercise her discretion and extend time for Mr Wignall, unless, within 7 days she receives a request from you to be heard on this issue.”
[6] Loft Story advised later that same day that they continued to press their jurisdictional objection.
[7] The matter was listed for hearing on 7 June 2018 to decide whether there were exceptional circumstances which would warrant the granting of an extension of time for Mr Wignall.
[8] At the hearing, Mr Wignall appeared on his own behalf. Ms Jane Wei appeared for Loft Story.
Extension of time
[9] Section 394(3) of the Act provides:
(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 similar position.
[10] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if I am satisfied that there are exceptional circumstances can I then exercise my discretion to extend time. The onus of establishing exceptional circumstances rests with the applicant.
[11] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:
“[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.”
[12] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[13] Mr Wignall attempted to lodge his application via electronic lodgement on 7 March 2018. Payment for the application was taken by the Commission from his credit card, however due to a technical issue the application was not received. Mr Wignall followed up with the Registry on 22 March 2018 as to the progress of his application. He then emailed a copy of the application that he had attempted to lodge on 7 March 2018.
[14] Ms Wei, in response, submitted that Mr Wignall ought to have taken steps at or around 7 March 2018 to ensure that his application was properly received.
[15] Having considered the evidence and oral submissions, I find that the matters addressed by Mr Wignall as reasons for the delay in lodging this application weigh in favour of granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[16] Mr Wignall submits that his dismissal took effect on 27 February 2018. Loft Story submits that Mr Wignall’s was notified of his dismissal on 28 February 2018. During the hearing, the parties were unable to clarify with certainty the last date that Mr Wignall performed work. However for the reasons set out below nothing turns on this issue.
[17] There is no dispute that Mr Wignall was aware of his dismissal after it had taken effect.
Any action taken by the person to dispute the dismissal
[18] Mr Wignall gave evidence that he took action to dispute his dismissal, by way of emails to Ms Wei in an attempt to resolve their differences and avoid an unfair dismissal application. I find that this weighs in favour of a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[19] There is no evidence of prejudice to Loft Story if I were to grant an extension of time.
[20] I am not persuaded that Loft Story would suffer prejudice if the extension of time were granted, given the period of the delay was two days. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[21] For the purpose of determining whether to grant an extension of time for Mr Wignall to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’2
[22] Overall, on the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[23] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4
[24] I do not consider that there are other relevant persons in a similar position to Mr Wignall, I therefore find this to be a neutral consideration.
Conclusion
[25] Having considered all of the matters to which my attention is directed by the Act, I am satisfied that Mr Wignall’s circumstances were not circumstances that are regularly or routinely encountered. The circumstances were uncommon in that due to a technical issue with the Commission’s on-line lodgement process, Mr Wignall’s application was not received at the time of attempted lodgement, and at the time the filing fee was paid.
[26] Accordingly, I am satisfied that the circumstances can be regarded as exceptional, and so I will exercise my discretion to extend the statutory time limit for the lodgement of this application.
[27] The application will be referred to another Member of the Commission for Arbitration.
DEPUTY PRESIDENT
Appearances:
Mr L Wiganll on his own behalf.
Ms J Wei for Loft Story.
Hearing details:
Sydney.
7 June:
2018.
Printed by authority of the Commonwealth Government Printer
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1 [2011] FWAFB 975.
2 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
3 [2015] FWC 8885.
4 Ibid at [29].
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