Mr Christian Rompapas v Kelly's & Young Trucking Co Pty Ltd
[2023] FWC 2346
•15 SEPTEMBER 2023
| [2023] FWC 2346 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Christian Rompapas
v
Kelly’s & Young Trucking Co Pty Ltd
(U2023/7161)
| COMMISSIONER BISSETT | MELBOURNE, 15 SEPTEMBER 2023 |
Application for an unfair dismissal remedy
Mr Christian Rompapas (the Applicant) made an application to the Commission on 3 August 2023 pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking a remedy from unfair dismissal. In his Form F2 application, the Applicant states that his employment was terminated on 17 April 2023. The Applicant was employed by Kelly’s & Young Trucking Co Pty Ltd (the Respondent).
The FW Act requires that an application for relief from unfair dismissal be made within 21 days after the effective date of dismissal. The Applicant made his application 15 weeks and 3 days after his date of dismissal, and therefore 12 weeks and 3 days after the 21-day statutory period. For his application to have been made within time, the Applicant was required to make the application by midnight on 8 May 2023. It is therefore necessary that the Applicant be granted an extension of time for his application to proceed.
The application for an extension of time was referred to me to determine. Directions were issued to the Applicant and the Respondent. The Applicant filed submissions by the date required. The Respondent indicated that it relied on its Form F3.
Prior to the Hearing, I granted the Respondent permission to be represented by a lawyer or paid agent pursuant to s.596(2) of the FW Act.
LEGISLATIVE FRAMEWORK
Section 394 of the FW Act provides a discretion to the Commission to grant an extension of time within which to make an application for remedy from unfair dismissal if it is satisfied that exceptional circumstances exist such that an extension of time should be granted. Section 394 states:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.
The reason for the delay in itself is not required to be exceptional. Rather, the reason for the delay is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[1]
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.[2]
The meaning of the phrase ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[3] where the Full Bench of the Commission said:
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.
Mere ignorance of the statutory time limit in [the applicable section] is not an exceptional circumstance ...[4]
In reaching my decision, I have considered each of the factors in s.394(3) of the FW Act.
Reason for the delay
The Applicant agrees that he was advised of the termination of his employment on 17 April 2023.
The Applicant’s evidence is that around 28 April 2023 he travelled to the United States to attend a family member’s funeral. He returned to Australia around the beginning of July and found that another close family member had died in a car accident.
The Applicant also said that he had been trying to contact his case manager at his work cover provider because he wanted to know if they could assist him with any potential claim (although the Applicant also said it was some months before he attempted this contact). The Applicant further said that he suffered from pneumonia, which had started prior to his dismissal, and that he was still afflicted by the condition.
The Applicant said he spoke to lawyers in the lead up to his dismissal but stated that they had said he could not make an application until events took their course (that is, until he was actually dismissed).
The Applicant stated that in July he found, by looking online, that he could make an application for remedy from unfair dismissal, but that the application had to be made within 21 days of the dismissal. As to why he did not then make his application until 3 August 2023, the Applicant said that he was consulting with family and friends.
The Applicant said he did not investigate whether he could make an unfair dismissal claim in the period immediately before he travelled overseas as he was seeking alternative employment, and that he did nothing while overseas as he was supporting his family members given the recent loss of a relation.
When the Applicant became aware of his dismissal
The Applicant agreed that he became aware of his dismissal on the day it took effect.
Any action taken to dispute the dismissal
The Applicant said he took no action, other than making an application for remedy from unfair dismissal, to dispute his dismissal.
Prejudice to the employer
The Applicant stated that there would be no prejudice to the employer if an extension of time was granted. The Respondent provided no submissions to the contrary.
Merits of his claim
At the time his employment was terminated, the Applicant had been on alternative duties at work following a workplace injury which occurred some 18 months earlier.
The Applicant said his dismissal was unfair for a number of reasons. Firstly, he said that the Respondent did not advise work cover that it was considering dismissing him from his employment. The Applicant said it was obligatory that such advice be given as work cover would need to look for alternative employment for him. Secondly, the Applicant also said it was incumbent on the Respondent to find alternative work for him or to retrain him to do alternative work for the Respondent.
The Applicant said that he was aware, as was the Respondent, that he would not recover further from his injury but also said that there was work that he could have performed for the Respondent.
For all of these reasons, the Applicant said that his unfair dismissal claim had merit.
Others in a like position
This was not a relevant consideration.
CONSIDERATION
The two most substantive matters for me to consider in determining if exceptional circumstances exist are the reasons for the delay and the merits of the Applicant’s remedy from unfair dismissal application. The other matters in s.394(3) are neutral to my decision and no more needs to be said of them.
I am not satisfied with the Applicant’s explanation as to the reasons for the delay in making his application.
I accept that the death of a family member overseas followed closely by the death of another at home is not common and certainly unexpected and it does provide a credible reason for some of the delay in making the application. However, the Applicant agreed that he found out around mid-July that he needed to make his application within 21 days of his dismissal. He then took no further steps to make an application while he consulted family and friends. He did this after he knew that an application needed to be made within 21 days of the dismissal and knowing that the time period to make an application had long passed. This final period of the delay (following mid-July) is inexplicable, and no credible reason is provided for a critical period of the delay.
I also observe that the Applicant, having consulted lawyers prior to the termination of his employment (as he feared that would be the outcome of his meeting with the Respondent on 17 April 2023), then did nothing after his dismissal to follow up on that legal advice. No further action was taken to make an application or to determine what his options were once he was dismissed, prior to leaving for overseas.
While it is the delay in the period after the 21 days from the date of dismissal that is critical, the Applicant’s failure to do anything in relation to his dismissal within the first weeks after his dismissal does little to assist his claim.
While it is not possible for me to fully assess the merits of the Applicant’s claim, I note that the Respondent stated the Applicant was dismissed as he could no longer fulfil the inherent requirements of his role as a truck driver/yards person and the Respondent was unable to provide permanent modified duties to the Applicant. The Applicant considered that the Respondent was responsible for finding or creating a new role for him and that his employment should not have been terminated while he was on work cover. It is unclear of the basis on which the Applicant suggests his employment could not be terminated in these circumstances.
On the information before me I consider there is limited merit to the Applicant’s claim.
CONCLUSION
In these circumstances, I do not consider that there are exceptional circumstances such that I should extend the time within which the application for remedy from unfair dismissal can be made.
The application is filed out of time and is therefore dismissed.
COMMISSIONER
Appearances:
C Rompapas on his own behalf
A Spottiswood of IRBUSCON for the Respondent
Hearing details:
2023.
Melbourne, Adelaide, and Canberra (video hearing):
September 8.
Printed by authority of the Commonwealth Government Printer
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[1] Stogiannidis v Victorian Frozen Foods Distributors Pty LtdT/A Richmond Oysters[2018] FWCFB 901 [39].
[2] Ibid [40].
[3] [2011] FWAFB 975.
[4] Ibid [13]-[14].
Printed by authority of the Commonwealth Government Printer
<PR766180>
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