Mathew Hrestak v Bulk Fuel Australia Pty Ltd

[2024] FWC 1177

[2024] FWC 1177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mathew Hrestak
v

Bulk Fuel Australia Pty Ltd

(U2024/3230)

COMMISSIONER YILMAZ MELBOURNE, 7 MAY 2024

Application for an unfair dismissal remedy – application lodged out of time – application dismissed.

1. Mr Mathew Hrestak (the Applicant) lodged a s.394 application under the Fair Work Act 2009 (the Act) for unfair dismissal remedy in relation to the termination of his employment with Bulk Fuel Australia Pty Ltd (BFA or the Respondent). 

1. Mr Hrestak commenced employment in the position of Fuel Delivery Driver on 5 July 2023 and was dismissed in writing on 23 February 2024 and a further email dated 26 February 2024 confirmed the dismissal. The unfair dismissal application was lodged on 20 March 2024, 5 days after the statutory 21-day time limit. The hearing for an extension of time was held on 23 April 2024. Both parties were self-represented, and no witness evidence was called.

1. Mr Hrestak acknowledges that his application is late but seeks an extension of time and submits that the dismissal took effect from 26 February 2024. BFA submit that there are no exceptional reasons to grant an extension of time.

1. The Act allows for an extension of time by the Commission if it is satisfied that there are exceptional circumstances. 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. Section 394(3) of the Act 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; 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.

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 the Application.

Reason for the Delay

1. The Act does not specify what reason for 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 period of the delay is from midnight of the 21-day deadline until the date of the application. In this matter the delay is a period of 5 days.

1. Mr Hrestak submits that his dismissal took effect on 26 February 2024. However, the undisputed evidence is that on 20 February 2024, Mr Hrestak was stood down after there was a fuel discrepancy identified on his truck. On 21 February 2024 he was given a show cause letter with a response due by midday 23 February 2024. As no response was received by BFA by the required time, a letter of termination for serious misconduct was sent attached to an email on 23 February 2024 at 4.03pm. At 5.35pm a response from Mr Hrestak was received by BFA, but Mr Hrestak contends it was sent by him just after the midday deadline. Relevantly the letter of termination states that BFA “finalised its decision based on the information currently available and has determined your employment is to be terminated with immediate effect.” The letter again emphasises that the employment was terminated immediately and directs Mr Hrestak to return his uniforms, PPE and mobile phone by Monday 26 February 2024 at the latest.[4]    

1. On Monday 26 February 2024 further correspondence from BFA to Mr Hrestak was sent which confirmed the decision made to terminate the employment.[5]  The email acknowledges receipt of the late response to the show cause letter and states that while his response was considered, the decision to terminate of 23 February 2024 remains unchanged. This language is used twice in the email. On the basis of the statements together with the correspondence tendered, the dismissal took effect on 23 February 2024 and not 26 February 2024 as the Applicant contends.

1. On the matter of reason for delay, Mr Hrestak submits that his application is late as he “recently lost” his father and had moved back in with his mother all at a time when he was going through a difficult time with losing his job.[6]  

1. A signed statement from Mr Hrestak’s mother was tendered in support of the extension of time application. I observe that the statement refers to the “sudden and unexpected death in the family” and during the period of grief the application date was missed. I further observe that the statement nor the outline of submissions provides the date of the unfortunate loss to the family. During the hearing Mr Hrestak advised that the loss of his father occurred in October/ November 2023. Correspondence from Mr Hrestak to BFA on 23 February 2024, confirms the loss 3 months prior to the dismissal.[7] In the same email, Mr Hrestak while referencing the loss in the family states that it is not an excuse for failing to manually dip the fuel gage in the truck. He further states on 27 February 2024 that he will be “speaking to the Fair Work Commission”[8] regarding his dismissal.  

1. Mr Hrestak advised during the hearing that he did make inquiries and understood there was a timeframe for applications, but mistakenly thought it was 28 and not 21 days to file an application. I am satisfied that Mr Hrestak was aware of his dismissal on 23 February and challenged the decision in the following days, he was also aware of his entitlement to lodge an unfair dismissal application but did not do so within the 21-day timeframe. While understandably Mr Hrestak was still grieving for the loss of his father, there is no evidence that this grief directly attributed to the delay, rather it was his mistaken assumption that there was a 28-day timeframe. It is unclear how this assumption was made when Mr Hrestak took proactive steps to inform himself of his entitlements by the Commission’s website which clearly stipulates the 21-day timeframe for lodging applications. In any event, mere ignorance of the statutory time limit is not an exceptional circumstance.[9]

1. While the reason for the delay is not in itself required to be an exceptional circumstance, it is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[10]  On the matter of reason for delay having considered the evidence tendered I am not satisfied that the reasons for delay weigh in favour of an extension of time. 

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

1. Mr Hrestak was aware of the date of dismissal, this is evident in the correspondence outlined above. Therefore, he had the full benefit of the 21 days to file his application. In these circumstances this consideration does not weigh in Mr Hrestak’s favour.

Action taken to dispute the dismissal

1. Mr Hrestak clearly challenged his dismissal and put BFA on notice that he intended to take the matter up with the Commission. This consideration weighs in his favour. 

Prejudice to the employer

1. Mr Hrestak submits that BFA is not prejudiced by the delay, while BFA refers to the inconvenience to both the Operations and Human Resources Managers. While this application is an inconvenience, I do not consider it causes prejudice to the Respondent. In any event the absence of prejudice does not weigh in favour of an extension of time.  

Merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to grant an extension of time.

1. BFA submit that Mr Hrestak was dismissed for serious misconduct, specifically it contends that drivers including Mr Hrestak were instructed on several occasions to complete manual dips of the fuel truck. The purpose of the dip is to “ensure accuracy of recorded stock and acts to mitigate the risk of theft and loss of product through incorrect recording.”[11] Mr Hrestak was stood down while BFA conducted an investigation after finding the record of fuel was incorrect. Mr Hrestak admitted to failing to dip but argued that others failed to dip and were not dismissed, that he had evidence that he simply incorrectly recorded the fuel and challenged any loss of fuel or theft or conduct warranting dismissal for misconduct. Mr Hrestak also challenged the evidence that he was informed on multiple times to dip the truck, although he acknowledged that it was a requirement of his duties upon his commencement of employment. 

1. While Mr Hrestak challenged the evidence that drivers were repeatedly instructed to dip, much of the evidence is not in dispute. The instruction to dip is a lawful and reasonable direction for which Mr Hrestak had no justifiable reason for failing to do so. The situation Mr Hrestak found himself in where fuel could not be accounted for is the reason why BFA directs drivers to manually dip. I do observe that BFA dismissed Mr Hrestak for failing to follow reasonable and lawful direction, rather than any suggestion that the fuel unaccounted for was due to any serious conduct on the part of Mr Hrestak, unfortunately this distinction was lost on him as he vehemently denied any wrongdoing regarding loss of fuel. In this matter BFA determined Mr Hrestak failed to follow lawful and reasonable directions and admitting to failure to dip justified the dismissal.

1. On the material before me, and without the benefit of assessment of the evidence, Mr Hrestak’s submissions on merit are unlikely to favour an extension of time. However, taking it at its highest, due to contested facts and a question of balance of the summary dismissal as contended by Mr Hrestak, the merits of the application may best be characterised as a neutral consideration. 

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

1. Neither party addressed this consideration, therefore it is neutral in the assessment for an extension of time.

Conclusion

1. Having considered the submissions and material provided by the parties, I have taken them into account in my assessment of whether I can be satisfied of exceptional circumstances to justify an extension of time. As either a single matter or a combination of the factors, I am required to take into account my findings in relation to the considerations in s.394(3). Having considered the evidence and submissions, there is only one in favour of an extension (action taken to challenge the dismissal) but there is not a combination of considerations that tip the balance in favour of an extension of time. Therefore, I am not satisfied that there are exceptional circumstances to grant an extension of time.

1. Accordingly, the application for an unfair dismissal remedy is dismissed.

1. An order to that effect will be issued with this decision.

COMMISSIONER

Appearances:

M Hrestak, Applicant.
D Moloney and U Soltwedel for the Respondent.

Hearing details:

2024.
Melbourne (via Microsoft Teams):
April 23.

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[2] Ibid.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[4] Attachment BFA.1 - Termination Letter to Mr Hrestak dated 23 February 2024, Digital Court Book (‘DCB’), [87]-[88].

[5] Applicant’s Written Submissions, DCB, [19]-[22]; Witness Statement of Udo Soltwedel, General Manager – Operations, DCB, [80]; Attachments BFA.1 – BFA.6, DCB, [87]-[108]. 

[6] Applicant’s Outline of Argument: Extension of Time, DCB, [4].

[7] Attachment MH-1 - Email from Mr Hrestak to BFA dated 23 February 2024 at 12.13pm, DCB, [23].

[8] Attachment BFA.3 - Email from Mr Hrestak dated 27 February 2024 at 2.57pm, DCB, [90].

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[11] Respondent’s Outline of Argument: Objections, DCB, [1h.].

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