Mathew Fleming v Superior Pak Pty Ltd T/A Superior Pak

[2015] FWC 8844

[2015] FWC 8844

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mathew Fleming
v
Superior Pak Pty Ltd T/A Superior Pak
(U2015/13399)

COMMISSIONER JOHNS SYDNEY, 23 DECEMBER 2015

Application for relief from unfair dismissal – whether to extend time for lodging the application.

Introduction

[1] On 15 December 2015 the Fair Work Commission (Commission) issued an Order 1 refusing an application for an extension of time by Mr Matthew Fleming (applicant) and dismissing his application for an unfair dismissal remedy.

[2] On 16 December 2015 the applicant requested reasons for that decision. These are those reasons.

[3] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 2 However, the Commission may allow a further period for lodgement in exceptional circumstances.3

[4] This decision is about whether the Commission should allow the applicant a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his

a) application was lodged on 7 October 2015,
b) that being 35 days after his employment was terminated by Superior Pak Pty Ltd T/A Superior Pak (respondent) on 2 September 2015.

The jurisdictional objection

[5] On 12 October 2015, the Commission wrote to the applicant, outlining the matters the Commission was required to consider by the FW Act and asked him to provide a statement addressing those matters within 14 days.

[6] Accordingly, the matter proceeded by way of a jurisdictional hearing because the application was 14 days late.

[7] On 26 October 2015 and 3 November 2015 the applicant sent correspondence to the Commission providing reasons for the delay in lodgement. In short the applicant says that, although the termination took effect on 2 September 2015:

a) He thought he had completed the application using the Commission’s eFiling system on 22 September 2015;

b) It was not until he contacted the Commission on 7 October 2015 to discuss the progress of his application that he realised there had been a problem and the application was not lodged on 22 September 2015.

[8] On 16 November 2015 the respondent filed its submissions in relation to the applicant’s application for an extension of time. In short, the respondent says:

a) The Commission’s website gives clear instructions about the process for making an application online;

b) The applicant’s inability to follow clear instructions does not constitute an exceptional circumstance and no extension of time should be granted.

The jurisdictional hearing

[9] The applicant and respondent consented to the matter being dealt with on the papers.

Legislative scheme

[10] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

[11] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  5

Consideration
Paragraph 394(3)(a) - The reason for the delay

[12] The applicant submits the termination occurred on the 2 September 2015, the respondent submits that it occurred on 1 September 2015. On the applicant’s submission there were 35 days between when the termination of the applicant’s employment took effect and when a proper application was filed with the Commission, on the respondent’s submission there were 36 days.

[13] The applicant says that he intended to lodge his application within 21 days and was fully aware of the requirement to do so. The applicant says that he thought he had done so using the eFiling system. He received an email from the Commission acknowledging registration as an eFiling user on 22 September 2015 and he says that considering he had registered and lodged the application in one session he thought the application had been successfully lodged. The applicant says he did not become aware of the fact that his application was not successfully lodged until he had a conversation with Commission staff on 7 October 2015.

[14] As the respondent makes clear in its submission, the Commission’s website gives clear instructions about the process for validly lodging an unfair dismissal application. The applicant did not do so. He was not entitled to treat himself as having lodged a valid application. There is nothing exceptional about a failure to properly understand that more was required to lodge a valid (in time) application.

[15] This factor weighed against granting the applicant an extension of time.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[16] The applicant submits he was notified of his dismissal on 2 September 2015. The respondent submits that the applicant was notified of his dismissal on 1 September 2015. The application is either 14 or 15 days out of time.

[17] This factor weighed against of granting the applicant an extension of time.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[18] The applicant did not indicate that he took any action to dispute the dismissal aside from the filing of this application.

[19] His lack of action weighed against granting him a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[20] The Respondent did not disclose that it would suffer any prejudice as a result of the delay in the filing of the application.

[21] Prejudice to the employer was a neutral consideration.
Paragraph 394(3)(e) - The merits of the application

[22] In the matter of Kornicki v Telstra-Network Technology Group 6the 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:

“The merits of the substantive application. 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.” 7

[23] The Commission, as presently constituted, notes that, for the purpose of determining whether to grant an extension of time to the applicant to file his application, it “should not embark on a detailed consideration of the substantive case.” 8

[24] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[25] The substantive factual contest between the applicant and the respondent is whether the grounds relied upon by the respondent to terminate the applicant’s employment were reasonable and whether the applicant was afforded procedural fairness throughout the termination process.

[26] If the applicant can establish that there was no valid reason for the dismissal and he was not afforded procedural fairness then he may be able to establish that the termination of his employment was harsh, unjust or unreasonable and, consequently, unfair. In this regard the applicant’s case is not without merit or lacking in any substance.

[27] Because the applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[28] The Commission, as presently constituted is satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.

[29] Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[30] For the reasons set out above, on balance, the Commission, as presently constituted, in the exercise of its discretion was not satisfied that there were exceptional circumstances warranting the applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

[31] The application for an extension of time was refused. The jurisdictional objection was upheld and the substantive application for an unfair dismissal remedy was dismissed.

[32] An Order to this effect was issued on 15 December 2015. 9

COMMISSIONER

 1   PR575097.

 2 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 3 Section 394(3) FW Act.

 4 [2011] 203 IR 1

 5 Above note at [13].

 6   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 7   Ibid.

 8   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 9   PR575097.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575317>