Michael Fraser v Ventia Australia Pty Ltd

[2024] FWC 1253

[2024] FWC 1253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael Fraser
v

Ventia Australia Pty Ltd

(U2024/4118)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 MAY 2024

Application for an unfair dismissal remedy – application filed 1 day out of time – circumstances not exceptional – extension not granted – application dismissed.

1. On 11 April 2024, Mr Michael Fraser made an application for an unfair dismissal remedy, pursuant to s.394 of the Fair Work Act 2009 (the Act), by lodging a Form F2 – Unfair Dismissal Application (Form F2). The Respondent named in the Form F2 is Ventia Australia Pty Ltd (Respondent). The Form F2 lodged outlined that Mr Fraser was notified of his dismissal and that the dismissal took effect on 20 March 2024. The period of 21 days to make application for an unfair dismissal remedy provided for in s.394(2)(b) ended at midnight on Wednesday 10 April 2024. The application made by Mr Fraser was therefore filed 1 day outside this 21-day period. Mr Ventia therefore requires the Commission to allow him an extension of time (s.394(2)(b)).

1. I issued Directions to the parties on 18 April 2024 for the filing of material and caused a Notice of Listing to be sent to them. While the Respondent filed submissions on 8 May 2024 in accordance with my Directions, Mr Fraser did not file any material. Shortly after his material fell due, Mr Fraser was sent an email from my Chambers reminding him of the requirement to file and serve material. This correspondence received no response. The determinative conference was conducted on 14 May 2024, as listed. Mr Fraser did not appear despite two attempts by my Associate to contact him at the appointed time. Ms Leanne Ballard and Mr Alishan Megerdichian were present for the Respondent. At all times the Commission used the contact details that Mr Fraser provided when filing his unfair dismissal application. In these circumstances I was satisfied that Mr Fraser was on notice of the requirement to file and serve material in support of his application for an extension of time, and the time and date of the determinative conference. Noting that s.600 of the Act vests in the Commission a discretion to determine a matter before it in the absence of a person who has been required to attend before it, I proceeded with the determinative conference in Mr Fraser’s absence.

Legislation

1. 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]

1. 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.

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.

Reason for the delay – s.394(3)(a)

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 the circumstances must be considered.[3]

1. The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on Wednesday, 10 April 2024. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 1-day delay, or any part of that delay, beyond the 21-day period.[4]

1. In the Form F2, Mr Fraser gave the reason for the delay was that he had “been unable to access documentation regarding company policies and procedures for several weeks and have only just obtained said information. I really apologise for being a day late, I hope you can make an exception.” Mr Fraser asserts that the information he sought took several weeks to access but there is no explanation provided as to why Mr Fraser required such documentation in order to lodge an application. I do not consider waiting for documentation regarding company policies and procedures is an acceptable explanation. It was Mr Fraser’s choice to seek documentation regarding the policies and procedures ahead of making his application. He was not precluded from making application while awaiting receipt. Unfair dismissal applications can be and are routinely made without an Applicant having fully prepared their case. The Commission’s website material is designed to assist members of the public to prepare and lodge applications within time.

1. Having regard to the limited material before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an unfair dismissal application that provide a credible reason for the 1-day period of delay and nor do I consider there was an acceptable or reasonable explanation for the whole of the 1-day delay. The absence of an acceptable or reasonable explanation weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)

1. I am satisfied that on 20 March 2024, Mr Fraser became aware of his dismissal with immediate effect. Mr Burgess therefore had the full period of 21 days to lodge his unfair dismissal application. This consideration is a neutral consideration.

Action taken to dispute the dismissal – s.394(3)(c)

1. Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.[5] There are no particulars before me going to steps that Mr Fraser took, whether by dialogue or correspondence, to dispute his dismissal with the Respondent. The Respondent’s submissions include the statement that Mr Fraser did not take any steps to dispute the dismissal, aside from making the unfair dismissal application. Putting Mr Fraser’s case at its absolute highest having regard to the material before the Commission, one might be able to assume he may have been in contact with the Respondent if he was seeking copies of policies and procedures relating to his employment. That said, Mr Fraser has not filed any policy or procedure upon which he relies.

1. If Mr Fraser took some action to dispute his dismissal, this factor would weigh in favour of a finding that there are exceptional circumstances but having regard the material before me, this would not be to any material degree.

Prejudice to the employer – s.394(3)(d)

1. The Respondent does not allege, nor did it seek to lead any evidence that it would be prejudiced should an extension of time be granted. I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. The consideration is a neutral consideration.

Merits of the application – s.394(3)(e)

1. I am required to “take into account” the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

1. Based on the material before me, I am not able to form a concluded view about the merits of the application. Mr Fraser raises various matters in his Form F2 and its attachment in prosecuting the unfairness of his dismissal and the Respondent has raised a prima facie defence. While the material before me does not persuade me in relation to the merits of Mr Fraser’s case, I accept there is evidence that would need to be tested, including under cross-examination, if an extension of time were granted and the matter were to proceed, and this may enable Mr Fraser to develop his case further. The merits of the application would depend on factual findings made at the final hearing. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position – s.394(3)(f)

1. 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 has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. This consideration is a neutral consideration.

Conclusion

1. The requirement is that there be exceptional circumstances before time can be extended under s.394(3). This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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.

1. The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, outlined reasoning also applicable for applications for extensions of time for unfair dismissal applications:

“[38]     As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.”[6]

1. Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, 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, Mr Fraser’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

L Ballard and A Megerdichian for the Respondent.

Hearing details:

2024.
Melbourne (via Microsoft Teams):
May 14

[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] 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] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[6] [2018] FWCFB 901.

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