Mr Chris Christofileas v Freni and Doria Pty Ltd

[2021] FWC 5992

[2021] FWC 5992

FAIR WORK COMMISSION

EX TEMPORE DECISION

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

Mr Chris Christofileas
v
Freni and Doria Pty Ltd
(U2021/7736)

COMMISSIONER CIRKOVIC MELBOURNE, 27 SEPTEMBER 2021

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

[1] Mr Chris Christofileas, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Freni and Doria Pty Ltd (Respondent) whom I will refer to as the Respondent.

[2] Before granting a remedy, the Commission must be satisfied that the application was not made out of time.

[3] Having heard the parties, I now proceed to give these reasons for my decision ex tempore.

[4] This published decision reflects the decision I gave ex tempore on 27 September 2021 with corrections for grammatical, syntactical and any other insignificant errors.

[5] An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

[6] The parties agree, and I so find, that the dismissal took effect on 22 July 2021 and the application was made on 31 August 2021 some 40 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.

[7] The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:

(a) the reason for the delay;

(b) whether the Applicant first became aware of the dismissal after it had taken effect;

(c) any action taken by the Applicant to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the Applicant and other persons in a similar position.

[8] As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901,each of these matters must be considered in assessing whether there are exceptional circumstances.

The first matter is the reason for the delay

[9] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 August 2021. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287,the delay is the period commencing immediately after that time until 31 August 2021 although circumstances arising prior to that delay may be relevant to the reason for the delay.

[10] As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.

[11] As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.

[12] The Applicant submitted that the delay was for the following reasons:

•  His lack of knowledge of computers;

•  He did not check his emails regularly, and as such he did not see an email from the Commission advising him that the email of 5 August 2021, attaching a form F80 (a fee waiver application) was not a completed application form.

[13] Turning to the evidence, the Applicant’s evidence was that on 5 August 2021, he sent the Commission an email with a Form F80 (a fee waiver application) which his sister helped him complete and that he did not see the reply from the Melbourne Registry at 3:02pm that day advising that the email did not constitute a complete application form and that there were strict time limits for some application types. He stated that he opened the email a week or so later because he was busy attending to children. He further stated he was waiting for his niece to assist with IT and that she was busy due to her commitment as a worker with the State Government’s COVID-19 response.

[14] The Respondent’s evidence was that there is no credible reason for the delay in filing.

[15] Having considered that evidence, I find that the reason for the delay was the Applicant’s lack of familiarity with technology.

Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect

[16] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal

[17] In his outline of arguments at question 5, the Applicant ticked the relevant box to indicate that he took action to dispute the dismissal after he became aware of it. That said, there was no detail provided as to any actions he took to dispute the dismissal.

[18] I note that the Applicant requested an employment separation certificate on the day he was dismissed.

[19] The Respondent submitted that the Applicant did not take steps to dispute the dismissal as evidenced by his request for an employment separation certificate on the day he was dismissed.

[20] In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal.

I must now consider the prejudice to the employer (including prejudice caused by the delay)

[21] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

I will now turn to the merits of the application

[22] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

[23] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter” in an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.

[24] In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

[25] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position

[26] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings

[27] As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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 nor unprecedented, nor even very rare. Exceptional circumstances may 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 can be considered exceptional.

[28] As to the Applicant’s main reason for the delay being computer illiteracy, I firstly note that the Applicant submitted, via email, a Form F80 on 5 August 2021 with the assistance of his sister. As to the Applicant’s failure to access his emails for some several days after the 5^th of August 2021 due to his niece’s unavailability and his child caring responsibilities, I do not consider that in the circumstances before me, these matters individually or together constitute an acceptable or reasonable reason for the delay.

[29] The Applicant gave evidence that he was unaware of the time limits for the lodging of an unfair dismissal application. I note that the email from the Commission’s Melbourne Registry sent to the Applicant at 3:02pm on 5 August 2021 states that there are strict time limits for some application types and some applications are dismissed if they aren’t lodged within the time limits. I note that if the Applicant was concerned about his computer competency, he could have contacted the registry of the Commission via phone or other means.

[30] Having regard to all of the matters at subsection 3 of section 394 of the Fair Work Act, I am not satisfied that there are exceptional circumstances.

Conclusion

[31] 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 so as 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.

[32] 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 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, which would warrant a consideration of the exercise of my discretion to allow a further period.

[33] 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) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Mr Chris Christofileas (the Applicant)

Mr Vince Doria (for the Respondent)

Hearing details:

27 September 2021 (via telephone)

Final written submissions:

Applicant: 9 September 2021

Respondent: 17 September 2021

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