Mr David (‘Dave') Stephens v Clover Pipelines Pty Ltd - [2022] FWC 3386

[2022] FWC 3386

The attached document replaces the document previously issued with the above code on 30 December 2022.

Citation 2 has been amended

Associate to Deputy President Lake

Dated 3 January 2023

[2022] FWC 3386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr David (‘Dave’) Stephens
v

Clover Pipelines Pty Ltd

(U2022/10764)

DEPUTY PRESIDENT LAKE

BRISBANE, 30 DECEMBER 2022

Application for an unfair dismissal remedy – application made outside of statutory timeframe- representative error – application for extension of time granted

Mr Dave Stephens (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Clover Pipelines Pty Ltd (the Respondent) on 17 October 2022. It was conceded the lodgement of the application was 23 days after the date of dismissal, being 2 days outside the statutory time limit prescribed by s.394(2) of the Act.

The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension and a hearing was held before me on 21 December 2022.

Should a further period be granted?

Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if it is satisfied that there are exceptional circumstances, taking into account:

(a)the reason for the delay;

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

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

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

(e)the merits of the application; and

(f)fairness as between the person and other persons in a like position.

The test of “exceptional circumstances” establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:

“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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 3386
Decision Date: 30 DECEMBER 2022

CaseChat Overview and Summary

Mr David ('Dave') Stephens applied to the Fair Work Commission for an unfair dismissal remedy in relation to the termination of his employment by Clover Pipelines Pty Ltd. The application was lodged 23 days after the dismissal, being 2 days outside the statutory time limit prescribed by s.394(2) of the Fair Work Act 2009. The issue before the Deputy President was whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposed an extension of time. The Applicant's representative argued that there was a dispute about the effective date of termination, and that the Respondent was not able to terminate the employee through payment in lieu of notice because of the wording of the employment contract. The Applicant's representative also argued that the Respondent was not able to terminate the employee without notice or without pay in lieu of notice except when the dismissal was for serious misconduct. The Applicant's alternative argument was that they had lodged the application late because of the Applicant’s reliance on his representative to prepare the application with a reasonable prospect of success. The Deputy President found that the primary reason for the Applicant’s delay was representative error, and that the representative error constituted exceptional circumstances for the granting of an extension. The Deputy President also found that the Applicant had taken steps to commence proceedings for an unfair dismissal application within the 21-day time frame, and that the failure of a representative to lodge an application in the statutory timeframe, notwithstanding the applicant contacting the representative in a timely manner, is not normally encountered and therefore satisfied exceptional circumstances. The Deputy President concluded that exceptional circumstances existed in this matter and ordered that the application for an extension of time be granted. Further directions were to be issued in respect of the hearing of the merits.

Orders