McClelland v New Horizons Pty Ltd t/a New Horizons

[2020] FWC 5075

[2020] FWC 5075

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean McClelland
v
New Horizons Pty Ltd T/A New Horizons
(U2020/9097)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 21 SEPTEMBER 2020

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

Introduction

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

[2] The Applicant’s employment with New Horizons Enterprises Limited (Respondent) was terminated with effect from 11 June 2020. The unfair dismissal application was lodged on 3 July 2020.

[3] Section 394(2) of the 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). The period of 21 days ended at midnight on 2 July 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).

[4] The 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] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) 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.

[7] 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

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[9] 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. 5

[10] The Applicant’s application was lodged at 2:24am on 3 July 2020. The Applicant dated his application 2 July 2020 and included the following comment in his application in relation to the difficulties he had encountered in lodging it electronically:

“Please be advised there is a lot of additional information in regards to this application and we have been having an extremely difficult time for many hours now attempting to upload all the necessary information needed to support this application. Please be advised we are happy to provide any additional information that may be requested.”

[11] The Applicant gave the following written explanation in relation to the reason for his delay in filing his application: 6

“On the evening of July 2nd, 2020 I was in the process of completing my online application for Unfair Dismissal and when I reached the ‘document uploading’ section of this process and encountered ‘technical difficulties’, when attempting to upload the documents the system would receive only some of the pages and when waiting for the final pages to upload (in excess of 10 minutes) the system would shut down or ‘kick’ me off the site and I would need to refresh and attempt the process again.

I honestly lost count of how many attempts I made to get the needed documents accepted by the system but I know that it took me over 4 hours to achieve this in the end due to the time of night that my wife and I were up to in our desperation to have this application received in time. By 0230 we were drained, emotional, exhausted and distraught due to the troubles we had experienced during the application process.

I would also like to mention that I honestly thought that my application had been received without penalty up until Tuesday 1^st September 2020 when I received the email from the Chamber of Members of Commission advising me of this error…”

[12] At the hearing of his extension of time application, the Applicant gave oral evidence that he only made his decision to make an unfair dismissal application on the day before he attempted to lodge it and the first time he attempted to lodge his application was on 2 July 2020. The Applicant also explained that, prior to about 2 July 2020, he did not have finances available to have the internet connected at his home. He had the internet connected to his home on about 2 July 2020 and used it to lodge his application. The Applicant further explained that he and his wife only have one telephone and his wife takes it with her to work when she is working her rotating shifts. I accept the truthfulness and accuracy of this oral evidence given by the Applicant.

[13] Although I have sympathy for the Applicant, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay. The Applicant did not commence attempting to lodge his application in the Commission until the last day of the 21 day period provided for under the Act. It is not unusual or uncommon for people to experience technical or other computer related difficulties when attempting to upload or send documents electronically. The Commission’s rules cater for such difficulties by providing a range of means by which applicants can lodge applications in the Commission, including by telephone, email, fax, post or using the Commission’s electronic lodgement facilities. The Applicant could have used his telephone (when his wife was not at work), or any of the other means which were available to him, to lodge his application in the 21 day period following his dismissal.

[14] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

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

[15] The Applicant was notified of the dismissal on 11 June 2020 and the dismissal took effect on the same day. The Applicant 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

[16] The Applicant does not contend that he took any ‘action to dispute the dismissal’. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[17] 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

[18] The 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 unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The Respondent contends that after the Applicant’s lengthy period of absence from work and his attendance at an independent medical examination, it made a decision to dismiss the Applicant because he was unable to perform the inherent requirements of his position. The Applicant contends that he was fit to perform the inherent requirements of his position and a number of the duties on which the Respondent relied to form its view that he was unable to perform the inherent requirements of his position were not requirements contained in his position description.

[19] The outcome of the Applicant’s unfair dismissal application would depend on the evaluation of evidence to be given by the Applicant and other relevant witnesses in relation to the inherent requirements of his position and whether he was able to undertake such work at the time of his dismissal or would have been likely to be able to undertake such work within a reasonable period after the date of his dismissal. In all the circumstances, the merits of the Applicant’s unfair dismissal application are a neutral consideration in relation to the question of whether there are exceptional circumstances.

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

[20] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. 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

[21] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr McClelland on behalf of himself

Mr Miles, Employee Relations Specialist of the Respondent, on behalf of the Respondent

Hearing details:

2020.
Newcastle (by telephone):
15 September.

Printed by authority of the Commonwealth Government Printer

<PR722971>

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

 2   Ibid

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

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

 6   Ex A1