Michael Stokes v Horgans Pty Ltd T/A Horgans

[2015] FWC 7470

[2015] FWC 7470

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Stokes
v
Horgans Pty Ltd T/A Horgans
(U2015/13179)

COMMISSIONER JOHNS MELBOURNE, 3 NOVEMBER 2015

Application for relief from unfair dismissal.

Introduction

[1] On 23 October 2015 the Fair Work Commission (Commission), as presently constituted, issued an Order dismissing the applicant’s application for an extension of time.

[2] On 23 October 2015 the applicant requested reasons for the decision. These are those reasons.

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

[4] Mr Stokes (Applicant) made application for a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 27 September 2015, that being 122 days after his employment was terminated by Horgans Pty Ltd (Respondent) on 29 May 2015.

The jurisdictional objection

[5] I wrote to the Applicant on 2 October 2015 outlining the matters I was required to consider by the FW Act and asked him to provide a statement addressing these matters within 14 days.

[6] On 9 October 2015 the Applicant’s representative filed a submission. In short the Applicant says that, although the termination took effect on 29 May 2015:

• It had been his hope that, after receiving his correspondence and collating the information as requested, that the Respondent would “realise the error of its ways” and seek to resolve the issues through a negotiated settlement.

Legislative scheme

[7] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

[8] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and 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. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[13] 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.  4

Consideration

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

[9] The Applicant submits that there were 122 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

[10] The Applicant says the reason for the delay was:

1. The Applicant’s New Zealand based representative attempted to resolve the issues through correspondence with the Respondent.

2. Information received by the Applicant indicated that the Respondent would be responding positively to those requests for information that had been made.

3. However, the Respondent subsequently chose to ignore the correspondence and made no further attempt to resolve the outstanding issues.

[11] The reasons advanced by Mr Stokes’ were not out of the ordinary, unusual or uncommon. Seeking to resolve a matter through negotiation is a regular occurrence. It does not mean an employee cannot file an application for an unfair dismissal remedy. The 21 day time limit in the Fair Work Act does not contemplate a negotiation period prior to the 21 day period commencing.

[12] This factor weighed against granting the applicant a further period for lodging his unfair dismissal application.

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

[13] The Applicant submits that he first became aware of the dismissal on 29 May 2015.

[14] However, it is the Respondent’s position that the Applicant voluntarily resigned his employment.

[15] This factor weighed against granting the applicant an extension of time.

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

[16] Mr Stokes disputed his dismissal by lodging this application, albeit late.

[17] The action taken by the Applicant weighs against granting him a further period to make his application.

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

[18] There is a considerable delay in this matter and as such there could be an increased prejudice to the respondent caused by Mr Stokes’ application being listed now than there would have been had it been lodged in time.

[19] However, for present purposes, I treated the likely prejudice as a neutral factor.

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

[20] In the matter of Kornicki v Telstra-Network Technology Group 5the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 6

[21] The Commission, as presently constituted, adopted this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[22] It is an accepted practice in jurisdictional matters that the Commission not embark upon a detailed consideration of the substantive case. In a jurisdictional matter the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[23] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[24] If the Applicant can establish to the satisfaction of the Commission that there was a constructive dismissal then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[25] Because the Applicant’s case was not without merit or lacking in any substance, it weighed in favour of granting him a further period to make his application.

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

[26] There was no issue of fairness in relation to any other person in a similar position.

Conclusion

[27] For the reasons set out above, on balance, the Commission was not satisfied that there were exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

COMMISSIONER

 1 Section 394(2)(a) FW 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) FW Act.

 3 [2011] 203 IR 1

 4 Above note at [13].

 5   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 6   Ibid.

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