Michael Grant v Bridgestone Australia Ltd
[2022] FWC 268
•15 FEBRUARY 2022
| [2022] FWC 268 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Grant
v
Bridgestone Australia Ltd
(U2022/893)
| DEPUTY PRESIDENT MANSINI | MELBOURNE, 15 FEBRUARY 2022 |
Application for an unfair dismissal remedy.
This decision concerns an application by Mr Michael Grant (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
The application was filed 37 days outside the statutory timeframe. Taking into account the matters at s.394(3), I am not satisfied that the circumstances are exceptional. Accordingly, the application is dismissed. The reasons for this decision follow.
Application filed outside the statutory timeframe
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).
It is not contentious that the Applicant’s employment with Bridgestone Australia Ltd (Respondent) came to an end effective 22 November 2021.
The period of 21 days ended at midnight on 13 December 2021. This unfair dismissal application was not lodged until 19 January 2022. The application was therefore filed 37 days outside the 21 day period.
The Applicant asked the Commission to grant a further period for the application to be made under s.394(3). In support, the Applicant sought to rely on: the application; his own statement; oral evidence and submissions made at the hearing. The Respondent opposed and sought to rely on: its F3 response; a statement of a Mr Jon Tamblyn (General Manager Retail Operations of the Respondent); an outline of submissions; oral evidence of Mr Tamblyn and submissions made at the hearing.
The ‘exceptional circumstances’ test
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]
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.
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.
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
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]
The Applicant offered the following explanation for his delay in filing this application:
· On 22 November 2021, the Applicant’s employment with the Respondent ended by reason of his role being made redundant. The Applicant experienced personal distress on account of the timing of this decision, being in the weeks prior to Christmas.
· On 8 December 2021, the Applicant learned that a former colleague was performing duties for the Respondent which he believed to be his former role.
· On and from 8 December 2021, the Applicant began researching in an endeavour to ascertain his rights, which efforts initially included contacting the Fair Work Ombudsman and the Fair Work Commission. He said that he was firstly gathering information about the legitimacy of the redundancy in order to see if this claim was worth pursuing.
· The Applicant did not identify a specific date but said that, after having done some research and realising that the time for bringing this claim had already lapsed, he “spoke to the Fair Work Ombudsman and they said ‘You can apply for an extension’”. He then began looking for some legal assistance to help him pursue the claim. At around 21 days following his dismissal, the Applicant first contacted a legal firm to get some advice.
· On 22 December 2021, the Applicant spoke to a legal firm and was informed that the timeframe for filing had already lapsed and they would help the Applicant to lodge this claim after their office reopened in the new year. The Applicant did not seek alternate representation given the time of year and because he “was quite comfortable with the advice that [he] was given from this particular firm and [he] wanted to stay with them after speaking to a few different firms, well trying to speak to a few different firms” but said that “the time of the year plays a very big part where a lot of places are closed over the Christmas break”.
· On 16 January 2022, the Applicant signed and dated the application form. That form was not ultimately lodged until 19 January 2022 on account of the Applicant being located at that time in a remote area which caused some delays in responding to communications.
I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay.
The new information which gave rise to the Applicant’s concern that his dismissal was not a case of genuine redundancy was obtained by the Applicant on 8 December 2021 which was within 21 days after his dismissal took effect. The Applicant’s evidence was that he immediately started researching his options on 8 December 2021 yet he did not attend to filing this claim until 19 January 2022.
Although the evidence relating to the periods 8 December 2021 until the expiry of the 21-day statutory timeframe at midnight on 13 December 2021 and from then until the discussion with a legal advisor on 22 December 2021 was vague and not specific as to dates or times, the Applicant has acknowledged that he was capable of and did access appropriate sources of information during those periods. That the Applicant desired to ensure that any claim filed was worth pursuing is perhaps commendable but does not reasonably or acceptably explain the delay in this case. The jurisdiction is designed to accommodate the unrepresented and unfair dismissal applications can be made without legal or other professional advice. Material to assist the general public in preparing and lodging applications is available on the Commission’s website. These matters are not, in my view, uncommon or unusual. To the extent that the Applicant was not aware of the statutory timeframe before it elapsed and/or proceeded on the mistaken belief that there was no urgency even after he identified the 21 days had lapsed, mere ignorance is not sufficient to justify the delay.
I accept that the Applicant experienced personal difficulty on account of being made redundant in late November. Whilst unfortunate, I am not persuaded that these particular circumstances are exceptional.
The representative named on the original application was not contacted until 9 days after the statutory timeframe had lapsed (on 22 December 2022) and ceased to act on 24 January 2022, but there was no suggestion of representative error as an explanation for the delay. For completeness, on the evidence before the Commission, the Applicant did not give clear instructions to file this claim until 16 January 2022 at the earliest (when he signed the application form). Therefore, even if it was alleged, I would not be satisfied that representative error reasonably explains the delay.
In the circumstances, the absence of an acceptable, reasonable or credible explanation for the delay weighs against a conclusion that there were exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of the dismissal by the date it took effect on 22 November 2021.
This factor would ordinarily weigh against an applicant because they had the full benefit of the 21 days to lodge the unfair dismissal application.
In the present case, I consider it a neutral consideration.
Action taken to dispute the dismissal
The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future.[4] The Commission may also have regard to whether such action constitutes a genuine effort to resolve the dispute.[5]
There was no evidence of action taken to dispute the dismissal with the Respondent prior to filing this application.
This factor does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the company 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.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend the time for filing.
The Respondent defended its decision to dismiss the Applicant as a “genuine redundancy” within the meaning of the Act and brought some evidence of an operational restructure in support. The Applicant strongly contested this defence and maintained his dismissal was not a case of genuine redundancy, including because the organisation’s overall headcount remained the same as prior to the restructure. Whilst the merit appeared weak, with the benefit of counsel the Applicant may be able to articulate a stronger case on the merits.
The merits of the application 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.
I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
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.
Other cases involving similar, but not identical, facts were brought to the Commission’s attention. I am unaware of any relevant matter within the meaning of this provision and I therefore consider this to be a neutral consideration.
Conclusion
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. The absence of an acceptable or reasonable explanation weighs strongly against and all other factors weigh at best neutrally towards a finding of exceptional circumstances in this case. 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 M Grant on his own behalf.
Ms E McCarthy for the Respondent.
Hearing details:
2022.
Melbourne (By Video).
8 February.
[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] Wilson v Woolworths[2010] FWA 2480 at [19]-[21].
[5] Butterly v Boldstate Corporation T/A Kalamunda Patisserie[2014] FWCFB 7474.
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