Luke Sullivan v Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements
[2018] FWC 2645
•31 MAY 2018
| [2018] FWC 2645 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Luke Sullivan
v
Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements
(U2018/472)
| Commissioner Cirkovic | MELBOURNE, 31 MAY 2018 |
Application for an unfair dismissal remedy, extension of time.
Mr Luke Sullivan (“the Applicant”) lodged an application with the Fair Work Commission (“the Commission”) alleging that the termination of his employment by Bestbar (Vic) Pty Ltd (“the Respondent”) was unfair. The Respondent denies the allegation.
Given the Applicant’s dismissal took effect on 15 December 2017 and that his Form F2 was lodged on 12 January 2018, his application was not made within 21 days of the date the dismissal took effect.
The application was lodged 7 days out of time.
The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Fair Work Act (“the Act”). Accordingly, the application will be dismissed.
Legislative scheme
Subsection 394(2) of the Act provides that an application under s.394 must be made within 21 days after the dismissal took effect:
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
Subsection 394(3) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances (emphasis added). The Commission in concluding whether exceptional circumstances exist must take into account the following factors:
(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.
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.” [Endnotes not reproduced]
Matters to be taken into account pursuant to s.394(3)
In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.
(a) the reason for the delay;
The Applicant relied on a combination of factors during the hearing and in his written submissions to explain the delay as follows:
· he was not aware of his rights;[2]
· the termination was a week before Christmas;[3]
· he has limited computer skills;[4]
· he contacted the Fair Work helpline but had difficulty obtaining assistance;[5]
· he was not told there was a 21 day time limit;[6]
· there were 3 days of public holidays during the relevant period.[7]
The Respondent submits that the Applicant’s claims are incongruous with his presentation to the Respondent as a potential “leader” and that a lack of knowledge about the time limit for making applications is not unusual.
Whilst I accept the truthfulness of the Applicant’s evidence as to the reasons for the failure to lodge his application, ultimately I am not satisfied that the reasons relied on by the Applicant either when considered alone or when considered together provide a reasonable explanation for the whole of the delay. This weighs against a finding that there are exceptional circumstances.
(b) whether the person first became aware of the dismissal after it had taken effect;
The Applicant was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.
(c) any action taken by the person to dispute the dismissal;
The Applicant stated in his application that on the day of his termination he tried to speak with his HR manager but did not receive a return phone call.[8]
Whilst I am satisfied that the Applicant attempted to call the HR manager, he took no other steps to dispute his dismissal. This weighs against a finding that there are exceptional circumstances.
(d) prejudice to the employer (including prejudice caused by the delay);
Prejudice to the employer will go against the granting of an extension of time.[9]
There was no evidence or submission about any prejudice to the Respondent. I consider this factor to be a neutral consideration in this matter.
(e) the merits of the application;
In the matter of Kornicki v Telstra-Network Technology Group[10] the Commission considered the principles applicable to the extension of time discretion under the former 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.”[11]
For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.”[12] I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.
(f) fairness as between the person and other persons in a similar position.
This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past.[13]
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[2016] FWC 6963 considered this criterion and said (at [41]):
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission on matters previously decided by the Commission.”
The Applicant submitted in his written submissions that his situation was less fair because of the “lack of availability of the assistance I needed over the Christmas period.” He made further submissions that had his “dismissal taken place at a different time of the year it would have been easier for me to get advice and assistance from either Fair Work Australia or from friends.”
I have considered the Applicant’s submissions but ultimately find it to be a neutral consideration.
Conclusion
I am not satisfied that there are exceptional circumstances warranting granting the Applicant an extension of time to lodge his application. I am not satisfied that the Applicant has a reasonable explanation for the delay in lodging his application.
The Applicant’s unfair dismissal application is therefore dismissed. An order to that effect will be published separately to this decision.
COMMISSIONER
Appearances:
Mr L Sullivan, Applicant
Ms H Goellner for the Respondent
Hearing details:
2018
Melbourne (by telephone)
1 May.
Final written submissions:
Applicant’s Outline of Argument: Extension of Time
Respondent’s Outline of Argument: Objections
<PR606998>
[1] [2011] FWAFB 975
[2] Applicant’s Outline of Argument: Extension of Time, [4].
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid [5].
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
[10] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[11] Ibid.
[12] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
[13] Wilson v Woolworths [2010] FWA 2480, [24]-[29].
Printed by authority of the Commonwealth Government Printer
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