Mr Andrew Southern v Apple Marketing Group Pty Ltd

[2014] FWC 9283

[2014] FWC 9283

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andrew Southern
v
Apple Marketing Group Pty Ltd
(U2014/10079)

DEPUTY PRESIDENT ASBURY BRISBANE, 22 DECEMBER 2014

Application for relief from unfair dismissal - Jurisdiction - Extension of time

[1] Mr Andrew Southern applies for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment by Apple Marketing Group Pty Ltd. Mr Southern states in his Form F2 Application for an unfair dismissal remedy that he was notified of his dismissal on 6 May 2014 and that it took effect on that date. The application was made on 16 June 2014.

[2] By virtue of s.394(2) of the Act 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 under s.394(3). Mr Southern’s application was made twenty days outside the time required in s.394(2). It is necessary to determine whether a further period should be allowed under s.394(3) for the application to be made. That sub-section provides as follows:

(3) The FWC may allow a further period 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

[3] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[4] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2 Each of the matters in s.394(3) is considered below.

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Mr Southern to make his application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine with respect to any statements provided by the other party. The parties did not request cross-examination of the statements provided. For reasons which will be apparent, it is not necessary to hold a hearing for this purpose and I have determined the matter on the basis of the material on the file.

[6] The reason given by Mr Southern for the delay in making his application is that he incorrectly believed that it was the correct procedure to approach the Fair Work Ombudsman (FWO) regarding making an application for unfair dismissal

[7] Mr Southern indicates that he was aware that he needed to file an application within 21 days of the date of his dismissal. The applicant further contends that he sent an email and made a subsequent follow up call to the FWO regarding his dismissal. The Applicant argues that it is only after the subsequent telephone call to FWO that he was made aware that FWO and the Commission are not the same organisations and that he should have contacted the Commission.

[8] Mr Southern also states that additional reasons for the delay in filing his application were that he was suffering from anxiety arising from the way in which he had been treated at work; he was dealing with a special needs child; and was busy starting a new job. No evidence was provided by Mr Southern in relation to the reasons why these matters prevented him from making his application within the required time.

[9] It is not in dispute that Mr Southern was aware of his dismissal on the date that it took effect. Other than contacting the Fair Work Ombudsman, Mr Southern did not take any step to dispute his dismissal.

[10] There is no evidence of any prejudice to the Apple Marketing Group if an extension is granted other than the usual prejudice associated with being required to defend the application. I am also unable to be satisfied that the merits of the application are such that this factor should be given greater weight than the other factors I am required to consider.

[11] I do not consider that Mr Southern has established that there are exceptional circumstances so that the discretion to allow him an additional period to file his application should be exercised. There is nothing exceptional about the reasons he gives for his failure to file his application within the required time. That he was ignorant of the appropriate organisation to dispute his dismissal is not an exceptional circumstance.

[12] There is no evidence provided by Mr Southern regarding his contact with FWO and the information that was provided to him. Further, it is Mr Southern’s submission that he first made contact with FWO regarding his dismissal on 13 June 2014 and by this date he was already outside of the required time in which to make an application for an unfair dismissal remedy.

[13] In the absence of exceptional circumstances, it would be unfair to other persons in similar circumstances who have not been allowed a further period to make an unfair dismissal application, to allow a further period for Mr Southern’s application to be made.

[14] For these reasons, I am not satisfied that the discretion to allow a further period for Mr Southern’s application to be made should be exercised. Mr Southern’s application for an unfair dismissal remedy U2014/10079 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

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