Matthew Gardner v Redlands Distributors Pty Ltd T/A Conti's Dairy

[2020] FWC 4869

[2020] FWC 4869

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Gardner
v
Redlands Distributors Pty Ltd T/A Conti’s Dairy
(U2020/10684)

COMMISSIONER BISSETT MELBOURNE, 11 SEPTEMBER 2020

Application for unfair dismissal – application filed out of time – circumstances not exceptional – extension of time refused – application dismissed.

[1] This decision concerns an application by Mr Matthew Gardner (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant’s employment with Redlands Distributors Pty Ltd T/A Conti’s Dairy (Respondent) was terminated with effect on 15 July 2020. The unfair dismissal application was lodged on 6 August 2020.

[3] Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3) of the FW Act. The period of 21 days ended at midnight on 5 August 2020. The application was therefore filed 1 day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the FW Act. The Respondent opposes this request.

[4] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, 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

[5] Section 394(3) of the FW 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;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[6] 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

[7] The FW 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

[8] The Applicant says that his application was late because he did not know how to use a computer to send the application to the Commission and it was not until he got help that he could make the application. The Applicant said he rang the Commission a couple of times to get help making the application prior to the expiration of the 21 day period.

[9] The Applicant also said that felt depressed about losing the job that he loved and was lacking motivation to leave the house or even talk to anyone. He said that some friends persuaded him to make the unfair dismissal application.

[10] The Applicant said that he was aware of the 21 day time limit for making an application within a couple of days after his dismissal.

[11] I do not consider that the matters raised by the Applicant, individually or together, prove be an acceptable or reasonable explanation for the delay.

[12] For a person who has lost a job they loved to feel depressed is not an unusual reaction to the loss of employment. However, it is expected of those who consider that they have been unfairly dismissed to lodge an application within 21 days. The Applicant has not provided any medical information to support his feeling of depressions such that it might provide some explanation for the delay in making his application until 6 August 2020.

[13] The Applicant said during the hearing of the application for an extension of time that he had been in touch with the Commission and attempted to make his application within time. Further information in relation to this was sought from the Applicant and through Commission systems and the parties were given time to respond to that material. Ultimately neither party made any further submissions.

[14] A review of the material provided by the Applicant and a review of the Commission’s records indicates that:

•  On 5 August 2020 at 10.31am Mr Gardner received an email from the Fair Work Ombudsman containing a link to the unfair dismissal form on the Commission website and advice to contact the Commission in relation to lodgement difficulties;

•  On 5 August 2020 at 12.21pm Mr Gardner telephoned the Commission. The content of the call is not known as it was not recorded although there is a record of the incoming call;

•  On 6 August 2020 at 2.07pm Mr Gardner sent a document to the Commission by email (presumably his unfair dismissal application) in a format that could not be opened by the Commission;

•  On 6 August 2020 at 2.12pm the Commission wrote to Mr Gardner and advised him that the material he had filed contained attachments in a form the Commission could not open and that if it was an application of some type it would not be accepted as having been lodged;

•  On 6 August 2020 at 2.24pm Mr Gardner filed his application for unfair dismissal with the Commission.

[15] Whilst this information indicates some engagement by the Applicant on the 21^st day after his dismissal (that is, 5 August 2020), it does not show that the Applicant attempted, on 5 August 2020, to file his application with the Commission. Rather, the information provided by the Applicant shows that he did not attempt to lodge his application until 6 August 2020. His first failed attempt did not result in any greater delay in making the application as he responded quickly to the Commission’s email of 2.12pm and resent his application in a proper form.

[16] Whilst the period of delay in making the application is 1 day it is relevant, in these circumstances, to consider what the Applicant was doing for the 21 days immediately following his dismissal. I have dealt with the claims of feeling depressed above. There is otherwise no explanation of any reason for not taking any action for the 20 days after his dismissal. In circumstances where the Applicant agrees he was aware of the 21 day time limit for making an application soon after his dismissal it is inexplicable that he took no action on 5 August to lodge the form sent to him by the Fair Work Ombudsman’s office. There is no reason as to why the application could not have been made within 21 days. The failure to explain the delay of 1 day is compounded by the lack of any reason to explain the first 21 days.

[17] I would also note that, immediately following his dismissal the Applicant posted on Facebook on 21 July 2020 that “I have the ball rolling to drag Tony Conti through the mud…My friend has a niece at a very good law firm, so I’m going to get some advice on how to go about this!...”

[18] On 20 July 2020 the Applicant said, in a text message to Mr Conti of the Respondent, “I suggest you change that misconduct lying bullshit you have put out there Tony, because I’m going to sue you for defamation…i will pursue this and clear my name…”.

[19] The Applicant provides no reason as to why he did not take action prior to 6 August 2020 to access assistance in making an application other than a general, unsupported, claim of being depressed. There is no evidence of any attempt being made to lodge the application prior to 6 August 2020. If the Applicant had, in fact, sought assistance in lodging his application on 5 August 2020 in his contact with the Ombudsman’s office and the Commission, there is no obvious reason as to why he did not proceed to lodge the application in circumstances where he was aware of the 21 day time limit for making an application. In these circumstances a discovered problem in using a computer to make an application only on the day the application was due does not assist in seeking to provide a satisfactory explanation for the delay – albeit of only 1 day – in making his application.

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

[20] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[21] The Applicant has taken no action other than this application to dispute his dismissal. I consider this a neutral consideration.

Prejudice to the employer

[22] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[23] The FW Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out briefly in the application (Form F2) and in more detail in the Respondent’s response to that application (Form F3). I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits at this stage. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I therefore consider the merits to be a neutral consideration.

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

[24] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.]

Conclusion

[25] The test of exceptional circumstances in s.394(3) of the FW Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time. The application was late because the Applicant apparently did nothing until the day the application was due (the 21^st day). Even then there is nothing to suggest that he actually attempted to lodge the application on the day it was due – rather, he sent the application the following day, 1 day late. Whilst the application was only 1 day late and the Applicant says it was because he could not use a computer very well, his lack of computer skills was not something unusual or out of the ordinary for him. Knowing this and that there is a 21 day time limit within which to make the application the Applicant chose to do nothing until the day the application fell due. This does not create an exceptional circumstance. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time and I therefore decline to grant an extension of time under s.394(3) of the FW Act.

[26] The application for an unfair dismissal remedy is therefore dismissed. An order 4 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

M. Gardner on his own behalf

O. Lai for the Respondent

Hearing details:

2020.
Melbourne by telephone
September 7

Printed by authority of the Commonwealth Government Printer

<PR722684>

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

 2   Ibid.

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

 4   PR722685.