Mr Benjamin Braack v Farmhouse Furniture Australia P/L T/A 1825 Interiors

[2018] FWC 7513

[2018] FWC 7513

FAIR WORK COMMISSION

DECISION

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

Mr Benjamin Braack
v
Farmhouse Furniture Australia P/L T/A 1825 Interiors
(U2018/10514)

COMMISSIONER JOHNS SYDNEY, 11 DECEMBER 2018

Application for an unfair dismissal remedy.

Introduction

[1] 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 Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Benjamin Jon Braack (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 11 October 2018, that being 29 days after his employment was terminated by Farmhouse Furniture Australia Pty Ltd (Respondent) on 12 September 2018 and, consequently, 8 days after the 21 day time limit provided for in the FW Act. To be within time the application should have been lodged on or before 3 October 2018.

The jurisdictional objection

[3] On 16 October 2018 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.

[4] On 19 October 2018 Deputy President Dean wrote to the Applicant seeking an explanation for the delay.

[5] On 26 October 2018 the Applicant sent an email to the Commission explaining that:

a) He had had a bicycle accident on the day of the dismissal. He wrote “the injuries for which, including aggravating the area concerned with surgery I was to have, were serious enough to delay any action relating to disputing my dismissal or for any kind for a week at least.”

b) Further that, “that week of the Monday the 10^th of September, my brother had had a serious fall and was in hospital having multiple seizures”. The Applicant wrote that he was in a “state of high anxiety”. His brother was cleared on 14 September 2018.

c) He had surgery on 2 October 2018 (20 days after the dismissal). He wrote, “the nature of the surgery I found to be daunting enough for concern for my health to be first and foremost in my mind. I had intended to move immediately on an unfair dismissal lodgement but the unforeseen effects of surgery again delayed this.”

[6] The Applicant conceded that he understood “ignorance of the time limit cannot be used as a reason for [an] extension of time.” He wrote:

“I would ask for understanding of the tumultuous period after the dismissal which reduced my capacity for move ahead with the clarity needed to lodge an unfair dismissal case; I had wanted to do it at a time when I could focus entirely on the matter and be ready to liaise without interruption or other serious concerns. As soon as I found out (on Tuesday, the 9th of October) that there was a time limit to lodge a case, I attempted to make lodgement as soon as I could ….”

[7] The matter was then allocated to me and on 2 November 2018 I issued Directions for the parties to file and serve any material they sought to rely upon and invited them to address each subsection in section 394(3) of the FW Act. The Respondent complied with this Direction. The Applicant did not file any additional material.

[8] The matter was listed for hearing on 14 November 2018. At the hearing, the Applicant represented himself and the Respondent was represented by Celeste Upton. For the reasons given in transcript, at the beginning of the hearing, I denied the Respondent permission to be represented by Andrew Bland from BlandsLaw.

Legislative scheme

[9] 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.

[10] 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

Facts leading up to and relating to the dismissal

[11] Based on the material filed in the matter and the evidence received on 14 November 2018 I make the following findings of fact:

a) The Applicant commenced employment with the Respondent on 30 August 2017.

b) He was paid an hourly rate of $20.79.

c) On 11 September 2018 the Respondent received a complaint about the Applicant’s behaviour towards another employee. The Applicant denies any wrong doing.

d) The Applicant was asked to attend the premises of Respondent on 12 September 2018.

e) On his way to the meeting the Applicant was involved in a serious bicycle accident.

f) It is alleged that the Applicant became agitated at the meeting.

g) His employment was terminated on 12 September 2018 with immediate effect.

h) The Respondent is a small business.

i) The Applicant underwent a surgical procedure on 2 October 2018.

j) The time for lodging an UFD application within time expired on 3 October 2018.

k) The Applicant lodged the present application on 11 October 2018.

Consideration of s.394 criteria

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

[12] It is undisputable that there were 29 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

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

a) His bicycle accident on 12 September 2018 and the injuries he incurred contributed to the delay (although I note he attended a meeting with the Respondent immediately afterwards and did not seek medical assistance in relation to the accident).

b) He further says that concern about his upcoming surgery was relevant.

c) Finally he says that his brother’s medical condition contributed to the delay.

[14] However, even if all of the Applicant’s evidence is accepted it seems that, as between when his brother was medically cleared (14 September 2018) and when the Applicant went in for surgery (2 October 2018), there are 18 other days on which the Applicant could have filed an UFD application. He says that he was worried about the upcoming surgery. However, that would not have rendered him unable to make an UFD application. The fact that he preferred to focus on preparing for surgery rather than lodge an UFD application is a matter he must take responsibility for. The fact that a person may have competing demands on their time or are worried about some aspect of their life is not something that is out of the ordinary course, or unusual, or special, or uncommon. On the contrary it is regularly, or routinely, or normally encountered.

[15] Further, although it is conceded the point in relation to his lack of knowledge about the 21 day timeframe, it is worth repeating that ignorance of the timeframe for lodgement is not an exceptional circumstance. 5

[16] Therefore this factor weighs against of granting the Applicant a further period to make his application.

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

[17] It is uncontested that the Applicant first became aware of the dismissal on 12 September 2018.

[18] Therefore this factor weighs against of granting the Applicant a further period to make his application.

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

[19] Other than lodge this application late the Applicant took no action to dispute the dismissal.

[20] The lack of 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)

[21] The Respondent submitted that,

“… it is entitled to rely on the certainty provided [and] will suffer the usual prejudice that accompanies any grant of an extension of time…. [and further] that granting an extension of time would be prejudicial because the Respondent will incur further legal costs to defend the claim.”

[22] The Respondent did not assert any exceptional prejudice.

[23] The prejudice asserted by the Respondent weighs is a neutral consideration in relation to granting the Applicant a further period to make his application.

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

[24] In the matter of Kornicki v Telstra-Network Technology Group, 6the 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.” 7

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

[26] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing 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.

[27] The substantive factual contest between the Applicant and the Respondent is whether the Applicant engaged in serious misconduct. There is also a contest about whether the Applicant was afforded procedural fairness. These are not factual disputes that can be resolved at a jurisdictional hearing.

[28] 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.

[29] If the Applicant can establish to the satisfaction of the Commission that he did not engage in the conduct alleged against him and that he was denied procedural fairness 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.

[30] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs 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

[31] The parties agreed that this factor is not relevant.

Conclusion

[32] Having considered all of the matters that I am required to consider under section 394(3) of the FW Act, in the exercise of my discretion, for the reasons set out above, on balance, the Commission, as presently constituted, is satisfied that there are not 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).

[33] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

The Applicant for himself.

Ms C Upton for the Respondent.

Hearing details:

14 November 2018

Printed by authority of the Commonwealth Government Printer

<PR703041>

 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 Ibid [13].

 5   Nulty v Blue Star Group Pty Ltd [2011] FWAFB at para 14.

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

 7   Ibid.