Mr Benjamin Boyd v Pirtek Australia Pty Ltd

[2020] FWC 4848

[2020] FWC 4848

FAIR WORK COMMISSION

DECISION

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

Mr Benjamin Boyd
v
Pirtek Australia Pty Ltd
(U2020/11369)

COMMISSIONER CIRKOVIC MELBOURNE, 15 SEPTEMBER 2020

Application for an unfair dismissal remedy - application for extension of time.

Introduction

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 7 September 2020.

[2] Mr Benjamin Boyd (the Applicant) commenced employment with Pirtek Australia Pty Ltd (the Respondent), on or about 2 March 2017. He was employed in the position of a Mobile Service and Sales Technician.

[3] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the Act). There is no dispute that the application was lodged on 21 August 2020.

[4] The Respondent contends the Applicant was not dismissed, but instead resigned.

Application was filed outside the statutory timeframe

[5] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

[6] There is no dispute between the parties that the effective date of termination was 12 June 2020. I note that payment in lieu of notice was received by the Applicant on 30 June 2020. As a general rule, the date that the dismissal takes effect is the date on which the payment is made in lieu of the notice, and not the date of the expiry of the period of the notice. In the circumstances before me, the effective date of termination is in my view 30 June 2020. In the event that I am wrong, and the effective date of termination is 12 June 2020, for the reasons I will outline, I would reach the same conclusion with respect to the Applicant’s extension of time application.

[7] Based on a termination date taking effect on 30 June 2020, the application for a remedy should have been lodged by no later than 21 July 2020.

[8] The application was therefore lodged outside of the time prescribed. The application was made, in effect, 31 days after the last date on which it could have been made.

[9] The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[10] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[11] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay;

•  whether the Applicant first became aware of the dismissal after the date it took effect;

•  any action taken by the Applicant to dispute the dismissal;

•  prejudice to the Respondent including prejudice caused by the delay;

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[12] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[13] 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 or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

[14] I now consider these matters in the context of the Application.

a) Reason for the delay

[15] 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.

[16] In essence, the Applicant cites the following reasons for the delay:

•  He was waiting for information from the Respondent regarding alleged outstanding payments;

•  He was trying to sort out many issues relating to being underpaid at work and the costs for tools;

•  He suffers anxiety and depression;

•  He was dealing with a “family crisis”; and

•  His sister (Ms Lisa Boyd), who was assisting with the matter, failed to lodge the application on time.

[17] I note that there is no evidence before the Commission by way of medical reports as to the Applicant’s medical condition. I also note that the details of the “family crisis”, including the time period over which it occurred, was not provided to the Commission. There is no suggestion that the Applicant was not aware of the 21-day time limit. To the contrary, the Applicant gave evidence that he accessed the Commission’s website on or around 19 June 2020 at which time he was aware of the time limit. He also gave evidence that it was around this time that he and/or his sister had made contact with JobWatch.

[18] Further, I note that the correspondence which the Applicant submits he was awaiting in order to make his application for unfair dismissal appears to only relate to issues of alleged underpayment which the Applicant has pursed via the Fair Work Ombudsman.

[19] I have taken into account the explanation of the Applicant’s sister that she was “responsible" for the delay but note that there was none the less no credible reason offered for the delay.

[20] I also note that an invalid application was made on 3 August 2020. On 4 August 2020, the Commission advised the Applicant that this application was defective and not accepted. There was no credible reason or explanation provided as to the reason for the delay between 4 August 2020 and the date of filling on 21 August 2020 beyond Ms Boyd’s submission that it was her “fault”.

[21] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

b) Whether Applicant first became aware of the dismissal after the date it took effect

[22] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the Applicant accepted that he signed a resignation letter on 12 June 2020 which stated his employment would end that day “giving 3 weeks notice”. In the circumstances, that is a matter that is a neutral consideration.

c) Action taken by the Applicant to dispute his dismissal

[23] Turning next to the question of the action taken by the Applicant to dispute his dismissal. There is no dispute that the Applicant corresponded with the Respondent regarding a number of issues relating to his employment. In particular, I note a screenshot of a text message in which the Applicant specifically contests the circumstances surrounding his termination. In this matter, I consider this factor to weigh slightly in favour of the Applicant.

d) Prejudice

[24] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The Respondent submitted “The prejudice Ben has shown toward myself in his claim and harm this would cause the business in allocating time and resources whilst trading through these difficult and extraordinary times.” The Applicant made no submissions on this issue.

[25] I cannot identify any prejudice that would accrue to the business 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.

e) Merits of the application

[26] 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. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

f) Fairness as between the Applicant and other persons in a similar position

[27] As to fairness between the Applicant and other persons in a similar position, 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 Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[28] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly in order to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[29] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[30] As I have indicated, there is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.394(3), except the Applicant’s disputing of his dismissal, weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[31] Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Mr B. Boyd for himself

Mr M. Little for the Respondent

Hearing details:

7 September 2020 (via telephone)

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