Michael Rominski v M & S Fabrications Pty Ltd

[2020] FWC 1894

[2020] FWC 1894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Rominski
v
M & S Fabrications Pty Ltd
(U2020/214)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 9 APRIL 2020

Unfair dismissal application – refusal of application to extend time – application dismissed.

Introduction

[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Michael Rominski a further period for his unfair dismissal application (Application) to be made against M&S Fabrications Pty Ltd (MS Fabrications).

Hearing

[3] On 7 April 2020, a hearing, by telephone, was conducted in relation to Mr Rominski’s application for an extension of time. Mr Rominski gave oral evidence in support of his application for an extension of time, as did Mr Cory Wright, Organiser of the Australian Manufacturing Workers’ Union (AMWU).

[4] MS Fabrications tendered two documents and cross examined Mr Rominski and Mr Wright, but did not call any witnesses to give evidence on the extension of time issue.

Legislative scheme

[5] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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 similar position.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”   

Consideration

Paragraph 394(3)(a) - reason for the delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] 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. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 7 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,8the Full Bench explained (at [31]) the correct approach by reference to the following example:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[10] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s 394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 9

“[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.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[11] As to acceptable explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 10

[12] Mr Rominski relies on representative error on the part of the AMWU for the delay in filing his Application. A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 11 In Clark v Ringwood Private Hospital,12 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

•  Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

•  A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

•  The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

•  Error by an applicant’s representatives is only one or a number of factors to be considered in deciding whether or not an out of time application should be accepted.

[13] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 13

Relevant chronology of events and reasons for delay

[14] Mr Rominski was employed by MS Fabrications as a leading hand boilermaker. He was employed on a casual basis, but usually worked significant hours each week. Mr Rominski was employed by MS Fabrications on 13 September 2018 and dismissed on 9 December 2019.

[15] On the same day as his dismissal (9 December 2019), Mr Rominski called his union Organiser, Mr Wright, by telephone. Mr Wright had previously assisted Mr Rominski in relation to a “pay query”. Mr Wright did not answer Mr Rominski’s call on 9 December 2019, so Mr Rominski left a voicemail message saying, “It’s Mick Rominski, I’ve been dismissed so I need your help, Give me a call”. Mr Rominski wanted Mr Wright’s help to file an unfair dismissal claim.

[16] Mr Rominski did not receive a reply from Mr Wright, so he called again on 13 December 2019, leaving a voicemail message asking for help and a call back.

[17] By 30 December 2019, Mr Rominski had still not received any contact from Mr Wright or any other person from the AMWU, so he called Mr Wright again and was put through to Mr Wright’s voicemail. Mr Rominski then called the AMWU Newcastle office and could not get through to anyone. Mr Rominski also called the AMWU helpdesk line, but could not speak to anyone. Mr Rominski thought that everyone from the AMWU must be on holidays and he would have to follow the matter up once they had returned.

[18] Mr Rominski contacted the AMWU Newcastle office when they re-opened on 6 January 2020. He spoke with another Organiser, Mr Todd Nickle. Mr Rominski told Mr Nickle that he had been dismissed and needed help. Mr Nickle arranged for Mr Rominski to attend the Newcastle office of the AMWU on 7 January 2020, which Mr Rominski did. At that meeting Mr Nickle told Mr Rominski there was a 21 day time limit for filing an unfair dismissal application. Mr Rominski had not been aware of that time limit. Mr Nickle also told Mr Rominski that he could have filed his own unfair dismissal claim. Mr Rominski believed that as a union member he had to go through the union to make an unfair dismissal claim.

[19] Mr Rominski relied on his union to help him fight his dismissal. Mr Rominski thought that his Organiser would follow up the issue and file a claim for him.

[20] The Application was filed in the Commission on 7 January 2020.

[21] Mr Rominski’s evidence concerning his attempts to contact Mr Wright in December 2019 was supported by the evidence given by Mr Wright. In particular, Mr Wright recalls that he missed a call from Mr Rominski on about 9 December 2019. Mr Wright assumed that Mr Rominski was calling about the “pay query”, which was not an urgent issue.

[22] I accept Mr Wright’s evidence that he was very busy in December 2019; two officials who ordinarily work in the Newcastle office of the AMWU were on leave in December 2019 and Mr Wright was negotiating five enterprise agreements. This meant that Mr Wright was not as diligent in returning phone calls as he normally would have been. Mr Wright tries to return phone calls within 24 to 48 hours. On this occasion Mr Wright overlooked the phone call from Mr Rominski on 9 December 2019. Mr Wright accepts that Mr Rominski may have left a voicemail message for him, but he is not sure because Mr Wright did not check his voicemail. Mr Wright also accepts that Mr Rominski may have called again and left further voicemail messages, but he did not check his voicemails.

[23] Mr Wright also gave evidence that the AMWU office in Newcastle was closed from 24 December until 6 January 2020. The AMWU helpline was also down during this period. Mr Wright was on leave during this period and was not answering work calls.

[24] I accept Mr Wright’s evidence that the AMWU office in Newcastle usually files unfair dismissal claims on behalf of its members within the 21 day timeframe.

[25] I have not given the documents tendered by MS Fabrications any weight in determining the application for an extension of time. MS Fabrications submits that those documents demonstrate that Mr Rominski tried to damage the reputation of MS Fabrications’ business in December 2019 and it was only after those attempts did not succeed that Mr Rominski turned to file his Application. I do not accept that submission because it is contrary to the evidence given by Mr Rominski, which I accept and which is supported by Mr Wright’s evidence, to the effect that Mr Rominski made a number of attempts in December 2019 to obtain assistance from the AMWU to complete and file his Application.

[26] The 21 day time period for Mr Rominski to make his Application expired on 30 December 2020. 14 Given that Mr Rominski filed his Application on 7 January 2020, the Application was filed 8 days late.15

[27] In accordance with the principles summarised in paragraphs [9]-[10] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 30 December 2019 to 7 January 2020. However, the circumstances from the time of the dismissal on 9 December 2019 must be considered when assessing whether there is an acceptable explanation for the delay, or any part of the delay, beyond the 21 day period.

[28] As stated above, Mr Rominski relies on representative error on the part of the AMWU for the delay in filing his Application. I accept that the AMWU is partly to blame for the delay in filing the Application. The AMWU should have returned Mr Rominski’s calls and voicemail messages in December 2019. It erred by not doing so. However I am also of the view that Mr Rominski is partly to blame for the delay in filing the Application. The circumstances of this case are to be contrasted with those of other cases in which an applicant gives explicit instructions to a lawyer or union to file an unfair dismissal application and the lawyer or union fails to act in accordance with those explicit instructions. In the present case, Mr Rominski did not give the AMWU any instruction prior to 7 January 2020 to file an unfair dismissal claim on his behalf. Indeed, Mr Rominski did not receive any communication from any person from the AMWU between the time of his dismissal on 9 December 2019 and his discussion with Mr Nickle on 6 January 2020. Mr Rominski left a voicemail message for Mr Wright on 9 December 2019, informing Mr Wright that he had been dismissed and asking for help. That voicemail message was not an instruction to file an unfair dismissal application on Mr Rominski’s behalf. Similarly, the voicemail message Mr Rominski left for Mr Wright on 13 December 2019 “asked for help and a call back”. 16 Mr Rominski’s further efforts to contact the AMWU on 30 December 2019 bore no fruit.

[29] That Mr Rominski did not either complete and file an unfair dismissal application on his own or engage a lawyer or paid agent to do so prior to 7 January 2020 arose as a consequence of two matters: first, Mr Rominski’s belief that he had to “go through the union” 17 to make an unfair dismissal claim; and secondly, the fact that Mr Rominski was not aware of the 21 day time limit to file an unfair dismissal application.18 The fact that Mr Rominski’s understanding as to the first matter was incorrect and he was not aware of the second matter does not persuade me that he had an acceptable explanation for the delay. In circumstances where Mr Rominski had not received any communication back from the AMWU during December 2019, it would, in my view, have been reasonable for him to contact the Commission or a third party for information as to how to file an unfair dismissal application.

[30] For the reasons stated and having balanced the contribution by the AMWU and Mr Rominski towards the delay, I am of the view that Mr Rominski did not have an acceptable explanation for the delay in filing the Application. Accordingly, this factor (s 394(3)(a)) weighs against a finding of exceptional circumstances and granting an extension of time

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[31] On 9 December 2019, Mr Rominski first became aware of his dismissal. That was the day on which the dismissal took effect. Accordingly, this factor (s 394(3)(b)) does not support the case for granting an extension of time.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[32] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 19

[33] I accept that Mr Rominski took a number of steps in December 2009 and on 6 January 2020 to contact the AMWU and seek the AMWU’s help to dispute his dismissal. Accordingly, this factor (s 394(3)(c)) weighs in favour of a finding that there are exceptional circumstances and granting an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[34] Prejudice to the employer will weigh against granting an extension of time. 20 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.21

[35] A long delay gives rise “to a general presumption of prejudice”. 22

[36] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 23 MS Fabrications did not adduce any evidence on the issue of prejudice.

[37] Noting that the delay was 8 days, I am satisfied that there would be no greater prejudice to MS Fabrications caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to MS Fabrications is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[38] The applicant contends that his dismissal was harsh, unjust or unreasonable and was not consistent with the small business fair dismissal code. The reason for dismissal stated on the Employment Separation Certificate was as follows:

“Work practices are unsustainable for a small business. Skills and ability are high and better suited to a large company.”

[39] Mr Rominski contends there was no valid reason for his dismissal and says MS Fabrications accepts that his “skills and ability are high”.

[40] Mr Rominski also submits that he had no opportunity to respond to the reason for dismissal prior to his dismissal taking effect, he was not given an opportunity to have a support person with him in the discussion concerning his dismissal, he was not given a warning or opportunity to address MS Fabrications’ concerns, and the reasons for dismissal given in the Form F3 which go beyond the reason for dismissal stated in the Employment Separation Certificate were not communicated to Mr Rominski prior to his dismissal and he had no opportunity to improve his performance to respond to any such concerns.

[41] MS Fabrications contends that Mr Rominski was spoken to on several occasions about reducing the amount of time/man hours spent to undertake particular tasks, where such work was not required. MS Fabrications submits that Mr Rominski was given ample time and opportunity to improve, but he did not do so.

[42] In the result, I am not able to say that Mr Rominski’s unfair dismissal claim is without merit. In all the circumstances, I consider this criterion (s 394(3)(e)) to weigh slightly in favour of a finding of exceptional circumstances and granting an extension of time.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[43] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 24 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[44] Mr Rominski submits that fairness as between him and other applicants who have been disadvantaged by reason of representative error in the filing of an unfair dismissal or other application out of time supports his application for an extension of time.

[45] In considering the issue of representative error and assessing whether Mr Rominski has an acceptable explanation for the delay in filing his Application, I have taken into account and applied the principles which have been consistently applied in the Commission in these types of cases. Those principles are summarised in paragraphs [12] and [13] above. The application of those principles to the particular facts of the present case gave rise to my determination that, on balance, Mr Rominski does not have an acceptable explanation for the delay in filing the Application.

[46] In all the circumstances, I consider this factor (s 394(3)(f)) to be a neutral consideration in determining whether to grant an extension of time.

Conclusion

[47] Having taken into account each of the factors referred to in s 394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting consideration of whether I should exercise my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by Mr Rominski. In reaching this conclusion, I am particularly (but not solely) influenced by the fact that, in my evaluative assessment, Mr Rominski did not have an acceptable explanation for the delay.

[48] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr N Grealy, on behalf of the applicant.

Mr Robinson, Operations Manager, on behalf of the respondent.

Hearing details:

2020.

Newcastle:

7 April.

Printed by authority of the Commonwealth Government Printer

<PR718191>

 1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) of the Act

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605

 7   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]

 8   [2016] FWCFB 349

 9   [2018] FWCFB 3288 at [35]-[45]

 10   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 11   See, for example, C. Davidson, Print Q0784, 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759; Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802

 12 (1997) 74 IR 413 at 418-9

 13   Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 at [17]

 14   That is, 21 days from 9 December 2019 (not including 9 December 2019) is 30 December 2019.

 15   7 January 2020 is 8 days after 30 December 2019.

 16   Ex A1 at [8]

 17   Ex A1 at [10]

 18   Ex A1 at [10]

 19   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 20   Ibid

 21   Ibid

 22   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 23   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 24   [2016] FWCFB 6963