Michael Russell Broadbent v Goulburn Flight Training Academy P/L

[2021] FWC 1151

[2021] FWC 1151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Russell Broadbent
v
Goulburn Flight Training Academy P/L
(U2020/16239)

COMMISSIONER JOHNS SYDNEY, 8 MARCH 2021

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

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

[2] The Applicant worked for Goulburn Flight Training Academy P/L (the Respondent) as its Head of Operations (HOO) and Chief Flying Instructor (CFI) from 21 October 2019. On 8 November 2020, the Applicant sent an email to Mr Attilio Ferrara, Director of the Respondent. The email is lengthy and raises a number of issues, which I do not repeat here, save for the final lines which read:

“Accordingly I tender my resignation from both the HOO of GFTA and CFI of GFTC effective from the last day of my leave owing which I believe is 24th November. I will Notify CASA and RAAus accordingly”

[3] The Applicant agreed that his last day of engagement with the Respondent was 24 November 2020. 1 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 Application for an unfair dismissal remedy was made on 21 December 2020 and is, therefore, 6 days out of time.

[4] The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[5] 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. 2 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.3

[6] 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.

[7] 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.

[8] 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

[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. 4

[10] The Applicant cited several matters as reasons for the delay in lodging the application. The first reason advanced was that the applicant was unaware of the 21-day timeframe for lodging an application for unfair dismissal remedy. 5 The second reason advanced by the Applicant was that the ‘tyranny of distance’ and the COVID-19 pandemic had contributed to the delay, though no specifics or further evidence was provided to substantiate these claims.6 Finally, the Applicant stated that he had been expecting that the matter was going to be resolved through direct dealings with Mr Ferrara.7

[11] Ido not consider these explanationsindividually or together, to be an acceptable or reasonable explanation for the delay. Ignorance of the time frame does not amount to exceptional circumstances.⁸ The Applicant has provided no evidence to explain that the ‘tyranny of distance’ and COVID-19, contributed to his delay. Online access to the Commission’s application process mitigates against ‘tyranny of distance’ issues. Finally, the fact that the Applicant preferred to use the time between the cessation of his employment and the filing of an application to deal directly with Mr Ferrara in the hope that some deal could be done (instead of filing an unfair dismissal application within time), is a matter for him. There is nothing exceptional about these explanations.

[12] This factor weighs against an extension of time being provided.

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

[13] The Applicant resigned from his position and, therefore, had the full period of 21 days to lodge the unfair dismissal application.

[14] This factor weighs against an extension of time being provided.

Action taken to dispute the dismissal

[15] As the Applicant resigned from his employment, this factor is a neutral consideration.

Prejudice to the employer

[16] 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. 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

[17] 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 Application are set out in the materials that have been filed and I do not repeat them here.

[18] Having examined these materials, it appears to me that the Application would face further issues of a jurisdictional nature if an extension of time were provided. First, the Applicant would bear the onus of proving that he did not resign voluntarily, but that the resignation was forced by the employer. 9

[19] During proceedings before me, the Applicant also made the admission that, throughout his engagement with the respondent, he was paid through a family trust. 10 It therefore appears that there may also be an arguable case that the Applicant was never an employee at all.

[20] In circumstances where the prospects of success for the Applicant seem limited by the above matters, I find that this factor weighs against an extension of time being granted.

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

[21] 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

[22] 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. An order to this effect [PR727579] has been issued with this decision.

COMMISSIONER

Appearances:

Mr M Broadbent for the Applicant.
Mr A Ferrara for the Respondent.

Hearing details:

2021
Sydney (via video)
15 February.

Printed by authority of the Commonwealth Government Printer

<PR727463>

 1   Transcript of Proceedings on 15 February 2021, PN92-PN93

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

 3   Ibid.

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

 5   Transcript of Proceedings on 15 February 2021, PN106-107

 6   Ibid, PN109-PN112

 7   Ibid, PN114

8 Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].

 9   See for example, Australian Hearing v Peary [2009] AIRCFB 680; O'Meara v Stanley Works Pty Ltd (PR973462).

 10   Transcript of Proceedings on 15 February 2021, PN136