Mr Aaron John Hellawell v Dixon (Asia Pacific) Pty Ltd
[2024] FWC 2981
•28 OCTOBER 2024
| [2024] FWC 2981 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Aaron John Hellawell
v
Dixon (Asia Pacific) Pty Ltd
(U2024/11695)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 28 OCTOBER 2024 |
Application for an unfair dismissal remedy – extension of time – delay attributable to seeking information from Fair Work Ombudsman and confusion between Ombudsman and Commission – whether exceptional circumstances – extension refused – application dismissed
On 1 October 2024, Aaron Hellawell (Mr Hellawell or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy in relation to a dismissal by Dixon (Asia Pacific) Pty Ltd (Dixon Asia, the respondent or the employer) which took effect on 9 September 2024.
The application is one day outside the statutory 21-day period for making unfair dismissal claims. Mr Hellawell seeks an extension of time. The respondent opposes an extension.
This decision determines that question.
I issued directions on 11 October 2024 and heard the extension matter (by video) on 23 October.
Mr Hellawell and Dixon Asia were self-represented. I heard evidence from Mr Hellawell.
The facts are largely not in dispute.
Facts
Dixon Asia is involved in the distribution and sale of industrial fittings such as hoses, pipes and valves.
Mr Hellawell is a resident of Adelaide. He commenced employment as a salesperson in March 2018.
He was dismissed on 9 September 2024 from the position of Territory Manager, effective that date. He was dismissed for alleged underperformance and unsuitability in the role. He was paid five weeks in lieu of notice. He was given a letter of termination.[1]
Mr Hellawell was permitted to use a company provided motor vehicle during those five weeks. He did so and returned the car on 4 October 2024.
At the time of dismissal and thereafter, Mr Hellawell considered the dismissal unfair.
In the first two weeks after dismissal, Mr Hellawell spoke to friends about his options and searched both the Fair Work Ombudsman (FWO) and the Commission websites. The information he gathered was that he was eligible to challenge the dismissal by making an unfair dismissal claim, and that a claim needed to be made within 21-days of his dismissal taking effect.
Mr Hellawell counted when the twenty-one days would expire and (correctly) identified that he had until and including 30 September 2024 to make an unfair dismissal claim if he decided to do so.
At about this same time (a week prior to 30 September) Mr Hellawell opened an online account with the FWO (via its web site enquiries facility) in case he needed to seek more specific information or make a claim. Despite opening an account, he did not ask for any information or make an enquiry at that point.
In the week that followed, Mr Hellawell decided that he would make an unfair dismissal claim. He did not immediately do so because he had until 30 September .
On the late afternoon of 30 September 2024 (about 5.58pm), Mr Hellawell logged into the account he had earlier opened with the FWO. He filled out an online page that was headed “Enquiries”. After entering his details he identified (via a menu of options) that his enquiry was about “unfair dismissal”. He completed other information required by the enquiries form (such as date of dismissal) and submitted his enquiry. Although the form activated a link to information about “unfair dismissal” he did not click that link.
Mr Hellawell erroneously believed that filling out the FWO online enquiries form at 5.58pm on 30 September 2024, and identifying that his enquiry concerned unfair dismissal, meant that he had made an unfair dismissal application within time.
From his earlier online searches, Mr Hellawell knew that unfair dismissal applications needed to be made to the Fair Work Commission. However, because both the Commission website and the FWO website provided similar information, he believed that the Commission and the FWO were one and the same.
Mr Hellawell was contacted over the phone by an officer of the FWO at about 11.47am the following day (1 October). He was informed that his enquiry was not an unfair dismissal application and that if he intended to have brought such an application it needed to have been made in the requisite form and to the Fair Work Commission.
Mr Hellawell did so that same day, at 1.29pm 1 October 2024, by going onto the Commission web site and lodging an online unfair dismissal application (form F2).
The application form stated that the application was made within 21 days.
Mr Hellawell’s evidence was that he realised he had filed one day late soon after lodging the application.
Submissions
Mr Hellawell
Mr Hellawell submits that an extension should be granted because he sought to make an application on the twenty-first day (30 September) but had incorrectly contacted the FWO and not the Fair Work Commission and did not realise that the FWO enquiries form he completed was not an unfair dismissal application.
Mr Hellawell submits that this is a reasonable explanation for the delay because:
as a lay person, he has no technical understanding of the difference between the FWO and the Commission and cannot reasonably be expected to have such knowledge;
the FWO did not contact him until the following day. Had it responded on the same day of his enquiry and informed him of what he was told the following day, he would have made an application to the Commission within time;
he acted swifty on receiving the information concerning where to file a correct application, by filing that same day; and
at the time of filing the application he thought it was filed within time.
Mr Hellawell also submits that an extension should be granted because he has a genuine claim of unfairness, the dismissal caused financial hardship as a single father, and there is no prejudice to the respondent.
Dixon Asia
Dixon Asia submit that Mr Hellawell’s explanation for the delay does not amount to exceptional circumstances.
It submits that it provided clear information to Mr Hellawell on 9 September 2024 that he was dismissed effective from that day. There was no confusion.
Mr Hellawell had ample opportunity in the following three weeks to inform himself of his rights and make an in-time application but chose to wait until the late afternoon of what he knew to be the last day.
This is not a case where Mr Hellawell made an application to the wrong authority within time and then re-sent it to the correct authority the next day. His contact with the FWO on the late afternoon of 30 September 2024 was a general enquiry only, not an unfair dismissal application sent to the wrong agency.
Mr Hellawell’s lack of knowledge about unfair dismissal rights is not exceptional. There is plain English information on both the Commission and FWO web sites about how to challenge dismissals and where to do so.
Mr Hellawell was provided five weeks pay in lieu of notice and a substantial payout of accrued leave. He did not suffer any particular financial hardship because of those payments. At the time he returned the car he had secured a new job.
Dixon Asia should not be put to the time and expense of defending a late application.
Consideration
Unfair dismissal applications are required to be filed within twenty-one days of a dismissal taking effect. However, s 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
The application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[2]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[4]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[5]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[6]
The application is one day out of time.
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[7] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[8]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[9]
The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[10]
The reason advanced by Mr Hellawell is that he sought to make an application on the twenty-first day (30 September) but incorrectly contacted the FWO and not the Fair Work Commission and did not know that the FWO enquiries form he completed was not an unfair dismissal application.
This is what in fact occurred. However, for reasons that follow, it is at best only somewhat of an acceptable reason and does not materially point to exceptional circumstances.
Firstly, Mr Hellawell waited until the twenty-first day to assert his rights. He had the three weeks prior to do so. No reasonable explanation for not making a claim earlier has been provided.
There was no confusion on Mr Hellawell’s part that his dismissal had taken effect when it did.
There was no confusion on Mr Hellawell’s part that a claim needed to be made within twenty-one days. Mr Hellawell had correctly counted that he needed to file by 30 September 2024.
There was no incorrect or misleading information provided to Mr Hellawell about exercising unfair dismissal rights. Mr Hellawell had access to and obtained relevant information from both the Commission and FWO websites.
Mr Hellawell points to personal and family circumstances, as well as managing post-dismissal priorities. I accept the genuineness of those circumstances. However, it is not exceptional that a dismissed employee needs, upon being dismissed, to give priority to looking for other jobs or managing parental responsibilities. This is a common occurrence, and not one unique to Mr Hellawell.
It is somewhat understandable that Mr Hellawell, as a lay person, was confused about the Fair Work Commission and the Fair Work Ombudsman’s different roles given the similarity in each agency’s nomenclature. However, that consideration only goes so far. That Mr Hellawell was searching separate websites for the Commission and the FWO ought reasonably to suggest, even to a lay person, that the agencies are likely not the same.
Further, that confusion was capable of being cured in relatively straightforward ways. For example:
Mr Hellawell could have but did not carefully read the Commission and FWO websites about unfair dismissals. The FWO site expressly states that applications must be filed with the Commission and not the FWO. The Commission website has extensive information to that same effect and an online lodgement facility. Even on 30 September, when he populated an FWO enquiries form, Mr Hellawell could have, but did not, click a link for information. Had he done so, he may have been alerted to the error he was making; and
Mr Hellawell could have, but did not, speak to an enquiries officer of the Commission or the FWO during the three weeks to cure any confusion. He did not call the Commission. I accept Mr Hellawell’s evidence that about two weeks after being dismissed he phoned the FWO and that call rang out. However, he then opened the online enquiries account with the FWO yet made no enquiry at that time.
Secondly, the contact Mr Hellawell made with the FWO on 30 September 2024 was a general enquiry, not an application for an unfair dismissal remedy. Whilst Mr Hellawell intended to make an unfair dismissal claim, he filled out an enquiries form, and one expressly titled as such. An enquiry is not an application and, had he taken more care, this ought to have been reasonably apparent to Mr Hellawell.
Thirdly, whilst I accept that it is likely that Mr Hellawell would have made an in-time application on 30 September if the FWO had responded to Mr Hellawell that same day, it was not unreasonable that the FWO did not do so. The online enquiry was logged with the FWO at 5.58pm on the last day; that is, in practice, after business hours. That an FWO officer returned the call the next day and Mr Hellawell was then armed with information about his error does not point to exceptional circumstances. A government agency logged with a general enquiry close to or after business hours and responding the next morning is timely conduct which does not suggest that it was responsible for any delay.
In Mr Hellawell’s favour is that he acted swifty once armed with information on 1 October 2024, and no longer delayed.
However, this is a matter where Mr Hellawell waited until the last hours of the last day to make an unfair dismissal claim and then made two related and avoidable errors; firstly, conflating the FWO with the Commission and secondly, believing that completing an FWO enquiries form was the same as making an application.
That a person waits until the twenty-first day to inform themselves of their rights or makes errors on that final day that result in a late application is a consequence of their conduct and not, of itself, an exceptional circumstance. It was observed in Shaw v Australia and New Zealand Banking Group Limited:[11]
“...a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation.”
For the abovementioned reasons, Mr Hellawell’s explanation for the delay is, at best, only somewhat of an acceptable reason, and does not materially point to exceptional circumstances.
Action taken to dispute dismissal (s 394(3)(c))
Dixon Asia was aware, at the time of dismissal, that Mr Hellawell considered it unfair. However, Mr Hellawell took no action to challenge the dismissal or put Dixon Asia on notice that he was intending to litigate its merits, until filing his application.
This is a neutral factor.
Prejudice to the employer (s 394(3)(d))
Dixon Asia would incur time and effort in responding to an unfair dismissal claim. That said, the prejudice to the employer has no unique feature.
However, the absence of prejudice would not itself be a reason to grant an extension.[12]
In the circumstances, this is a neutral consideration.
Merits (s 394(3)(e))
The merits of Mr Hellawell’s unfair dismissal application concern whether the alleged performance or suitability concerns were reasonably based and a valid reason for termination.
Not having heard evidence on these issues, it is not safe to express even a provisional view on the merits.
In this matter, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
This is not a case where an unfair dismissal application was made to the wrong agency within time and then re-sent to the correct agency the next day or at the earliest possible opportunity thereafter. In that circumstance the Commission has, in some past cases, considered a short delay to be exceptional.[13] However in other cases, more closely aligned to the facts of this matter, where a general enquiry has been made, but not an application sent, time has not been extended.[14]
This is, at best, a neutral consideration. It does not weigh in favour of extending time.
Conclusion
The one day period of delay is the shortest possible, but the FW Act requires the circumstances to be exceptional for time to be extended for even a short period such as this.
Whilst it was somewhat understandable that Mr Hellawell had no insight into the different roles of the FWO and the Commission, he waited until the last hours of the last day and made avoidable errors. The reason for delay does not count in favour of a finding of exceptional circumstances.
All other considerations are neutral.
That the dismissal caused distress or financial hardship is not, of itself, an unusual circumstance.
Disposition
There being no exceptional circumstances, the time for lodgement of application U2024/11695 cannot be extended.
Being out of time, the application must be dismissed.
An order[15] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
A. J. Hellawell, on his own behalf
T. Meritt, of and on behalf of, Dixon (Asia Pacific) Pty Ltd, with S. Glatz assisting
Hearing details:
2024.
Adelaide (Video);
23 October.
[1] R2
[2] Smith v Canning Division of General Practice[2009] AIRC 959
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21]
[4] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[5] [2011] FWAFB 975, [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251, [5]
[6] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954, [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167, [6]
[7] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [30] and [36]
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, [35]-[45]
[9] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[10] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[11] [2014] FWC 3903, [28]; see also Salauzzaman Khan v AKS Security [2020] FWC 5063
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
[13] For example, Dunstan v Routley’s (Vic) Pty Ltd [2021] FWC 5045 and cases cited at [15] – [16]
[14] Birch v Continental Tyres of Australia Pty Ltd[2022] FWC 891, [17] – [18]
[15] PR780649
Printed by authority of the Commonwealth Government Printer
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