Mr Brae Anderson v McDowall Motors Pty Limited T/A Sunshine Toyota

[2014] FWC 6027

[2014] FWC 6027

FAIR WORK COMMISSION

DECISION

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

Mr Brae Anderson
v
McDowall Motors Pty Limited T/A Sunshine Toyota
(U2014/4613)

DEPUTY PRESIDENT ASBURY BRISBANE, 1 SEPTEMBER 2014

Application for unfair dismissal remedy - Jurisdiction - Extension of time.

[1] Mr Brae Anderson 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 McDowall Motors Pty Limited t/a Sunshine Toyota. Mr Anderson states that he was notified of his dismissal on 20 January 2014 and that it took effect on that date. The application was made on 13 February 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 Anderson’s application was made three 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 Anderson to make his application. Mr Anderson was required to file his material by 4 April 2014. He did not comply with this direction and after a number of attempts by my Associate to contact him, sent an email on 30 June 2014 setting out his grounds for seeking a further period of time. The Respondent did not file a Response to the Application until 9 July 2014, but maintained that until Mr Anderson filed his material it had nothing to respond to. 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 Respondent has not indicated that it wishes to cross-examine the Mr Anderson with respect to his statement, and accordingly I have determined this matter on the basis of the material on the file.

[6] The reason given by Mr Anderson for the delay in making his application is that he was seeking independent legal advice to pursue the possibility of resolving the matter by agreement, and the process took longer than he anticipated. There is no evidence about what steps Mr Anderson took in this regard. It appears that Mr Anderson attended a meeting with his former employer after the dismissal took effect but insufficient information has been provided to enable me to draw any conclusions about what if any action he took to dispute his dismissal.

[7] Mr Anderson also states that he was not aware of the dismissal until after it had taken effect. No information about why this is the case was provided, and it is at odds with the information set out in Mr Anderson’s Form F2 Application for an unfair dismissal remedy, which does not evidence any doubt about when his dismissal took effect. Mr Anderson also states that he has suffered depression, stress and financial hardship as a result of his dismissal but provides no evidence about how this prevented him from making an application for an unfair in similar circumstances warnings during his employment.

[8] I am unable to be satisfied that any of the matters raised by Mr Anderson in relation to why a further period of time to make his application should be allowed, constitute exceptional circumstances. That he chose to attempt to resolve the matter directly is not exceptional. There is insufficient evidence upon which I could be satisfied that he was not aware of his dismissal until after it had taken effect, given the information he provided in his application. There is insufficient evidence about what if any action Mr Anderson took to dispute his dismissal and this is not a factor that supports an additional period to make the application being allowed.

[9] There is no evidence of any prejudice to the employer other than that which would flow from being required to defend the application if a further period of time was allowed. There is no basis upon which I could find that the application has merit sufficient to support an additional period of time to make the application being allowed.

[10] To allow an additional period for Mr Anderson’s application would be contrary to many decided cases where an additional period has been refused and would not be fair to persons whose applications have been dismissed in similar circumstances. I am also of the view that the discretion to allow an additional period in which to make the application should not be exercised in a case where the Applicant has not complied with Directions.

[11] Mr Anderson’s application for an unfair dismissal remedy U2014/4613 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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