Marjan Milojeski v Smeg Pty Ltd T/A Namiiss Gauge & Control

[2022] FWC 1424

[2022] FWC 1424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Marjan Milojeski
v

Smeg Pty Ltd T/A Namiiss Gauge & Control

(U2022/4320)

COMMISSIONER MCKINNON SYDNEY, 7 JUNE 2022

Application for an unfair dismissal remedy – application filed out of time – whether additional time should be allowed.

1. Mr Marjan Milojeski was employed by Smeg Pty Ltd trading as Namiiss Gauge and Control (Namiiss) from 26 October 2020 until 21 March 2022. Namiiss is a small business employer. On 13 April 2022, Mr Milojeski applied for an unfair dismissal remedy. The application was filed 2 days after the end of the 21-day statutory filing period. The question is whether additional time should be allowed for Mr Milojeski to make his application.

1. I have decided that the answer to this question is ‘No’. The application will be dismissed. These are my reasons.

Extension of time

1. Under section 394(2), additional time can be allowed to a person to make an unfair dismissal application if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.

1. The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:

“[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.”

1. The matters to be taken into account when deciding whether to grant additional time are set out in section 394(3) of the Act. These are:

• the reason for the delay

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

• any action taken by the person to dispute the dismissal

• prejudice to the employer (including prejudice caused by the delay)

• the merits of the application, and

• fairness as between the person and other persons in a similar position.

Relevant factors

1. Reason for delay: Mr Milojeski’s reason for the delay is that he first got in touch with the Commission’s Workplace Advice Service on 4 April 2022. He received an email from the Workplace Advice Service on 6 April 2022 advising that a lawyer from South West Sydney Legal Centre would contact him within 2 weeks. South West Sydney Legal Centre rang Mr Milojeski on 21 April 2022. Mr Milojeski did not answer or return the call. Mr Milojeski submits that he did not get a phone call. Even if that were the case, there is no evidence of any steps Mr Milojeski took to follow up by calling the number provided to him in the email of 6 April 2022.

1. Mr Milojeski submits that he thought the 21 days was 21 business days, not including weekends. However, the email of 6 April 2022 included the following information in a highlighted text box:

“Some applications, like dismissal applications, have strict 21-day time limits. If you were dismissed and are nearing the 21-day time limit, you should lodge your application to the Commission as soon as possible.”

1. Whether the person first became aware of the dismissal after it had taken effect: Mr Milojeski knew he had been dismissed on 21 March 2022 when the dismissal took effect immediately.

1. Any action taken by the person to dispute the dismissal: As noted above, Mr Milojeski contacted the Commission’s Workplace Advice Service on 4 April 2022. He received an email advising that he would be contacted by a lawyer within 2 weeks. He then waited to hear back and filed his application one week later on 13 April 2022.  There is no evidence of any other steps Mr Milojeski took to dispute the dismissal.

1. Prejudice to the employer (including prejudice caused by the delay): There is no apparent prejudice to Namiiss if the application is allowed to proceed.

1. Merits of the application: There is apparent merit in Mr Milojeski’s case on the basis of his submission that he was dismissed without warning after he reacted by throwing his pliers on the ground when he was yelled at by the tradesman. Mr Milojeski’s case also relies on harshness in relation to the dismissal, related to his personal circumstances including a mental health condition, the stress he experienced following dismissal and the recent loss of his wife. Namiiss has a different version of events, relying on Mr Milojeski’s apparent loss of licence to support its decision to dismiss. Namiiss submits that Mr Milojeski lost his licence after driving his own vehicle under the influence during a morning tea break. Namiiss says the licence was an inherent requirement of his role and as a small business, it could no longer support his ongoing employment. The letter of termination refers to ‘suspension’ of licence only. There is insufficient material before the Commission to assess whose version of events will prevail. The merits are a neutral consideration at this stage. A separate underpayment claim has been flagged by Mr Milojeski in relation to his former employment with Namiiss, but is not relevant for present purposes.

1. Fairness as between the person and other persons in a similar position does not appear to be a relevant consideration in the case.

Conclusion

1. There are no exceptional circumstances in this case. The reasons given for delay are unexceptional, and there are no other relevant facts or circumstances that are either out of the ordinary course, or unusual, or special, or uncommon. As a result, I cannot grant additional time to Mr Milojeski to make his application.

1. The application is dismissed.

COMMISSIONER

Appearances:

K Boshev of Bale Boshev Lawyers on behalf of the Applicant.
S Lane on behalf of the Respondent.

Hearing details:

2022.
Sydney (by video):
June 6.

[1] [2011] 203 IR 1 at [13].

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