Matthew Guy v Jason While Trolleys Transport
[2023] FWC 145
•18 JANUARY 2023
| [2023] FWC 145 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Guy
v
Jason While - Trolleys Transport
(U2022/10795)
| DEPUTY PRESIDENT LAKE | BRISBANE, 18 JANUARY 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Mr Matthew Guy (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to a dismissal of his employment by Jason White – Trolleys Transport (the Respondent).
The Applicant began his employment on or around September 2019. It is uncontentious that the Respondent terminated the Applicant’s employment on 8 October 2022. The application was lodged with the Commission on 10 November 2022.
Was the application lodged within time?
Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.
The Applicant lodged his application on 10 November 2022. He accepts that his application was made some eleven days outside of the 21 days required under s.394(2) of the Act.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.
The Applicant’s submissions
The Applicant’s submissions may be summarised as follows.
The Applicant states he was not aware that there was a 21-day time limitation imposed by statute. The Applicant had contact with police following his dismissal and claims he was contacted and made a report of a workplace incident. A detective advised the Applicant to go to Mackay Community Legal Centre regarding his termination of employment. The Applicant did receive advice on his application and the 21-day time limit.
The Applicant asserts that he did not dispute his dismissal as he was going to leave anyway.
The Respondent’s submissions
The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions may be summarised as follows.
The Applicant worked for the Respondent from September 2019 to 20 January 2022. The Applicant then resigned from his role and was re-employed with the Respondent on 27 June 2022 until his dismissal on 8 October 2022.
The Applicant’s knowledge of the 21-day time limit does not qualify as exceptional.
Consideration of whether a further period should be granted
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(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 like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.394(3) of the Act.
Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
In consideration of the submissions of both parties, the Applicant received advice from the Mackay Legal Centre and was warned about the 21-day time limit. With this knowledge, the Applicant was eleven days late in filing his application. The Applicant did not provide any further reasons as to why he was late in filing his application.
I note that the Respondent attested that the Applicant had a broken period of employment. As this was untested, I make no finding on this.
In considering the totality of the matters raised by the Applicant, on balance I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant became aware of his dismissal on 8 October 2022 by way of text message. This consideration therefore does not weigh in favour of an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant noted that he did not intend to dispute the dismissal, causing a delay in seeking legal advice. Therefore, I consider this factor to not weigh in favour of an extension of time.
Prejudice to the employer (s.394(3)(d))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the
principles applicable to the exercise of the discretion to extend time under 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.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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