Mr Douglas Huen v Rio Tinto Weipa Operations

[2021] FWC 256

[2021] FWC 256

FAIR WORK COMMISSION

DECISION

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

Mr Douglas Huen
v
Rio Tinto Weipa Operations
(U2020/15174)

DEPUTY PRESIDENT ASBURY BRISBANE, 19 JANUARY 2021

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

Introduction

[1] This decision concerns an application by Mr Douglas Huen (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant states that he was employed by Rio Tinto Operations and that his dismissal from his employment took effect on 21 October 2020. The application was filed on 24 November 2020. A Form F3 Response to the application was filed by Rio Tinto Aluminium Limited stating an objection to the application on the ground that it was filed outside the time required by s. 394(2) of the FW Act.

[3] On 20 January 20201, I conducted a hearing, by telephone, in relation to whether a further period of time should be granted to the Applicant to lodge his unfair dismissal application in the Fair Work Commission (Commission). Pursuant to s. 586 of the Act I also allowed the Applicant to correct the application so that it was made against his employer, Rio Tinto Aluminium Limited (Respondent).

[4] At the hearing the Applicant confirmed that he relied on a written response provided to the Commission in relation to why a further period in which to make his application should be granted, and also gave oral evidence. The Respondent made submissions in opposition to a further period being granted. At the conclusion of the hearing I informed the parties that I had decided to refuse the grant of a further period for the application to be made and that I would provide written reasons for that decision. These are my reasons.

Extension of time application

[5] Section 394(2) of the FW Act states that 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 pursuant to s 394(3). There is no dispute that the Applicant’s dismissal took effect on 24 October 2020. The period of 21 days ended at midnight on 11 November 2020. The application was therefore filed 13 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[6] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, 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. 1 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.2

[7] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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;

(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 similar position.

[9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Reason for the delay

[10] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[11] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 5

[12] The Applicant says that he was notified of his dismissal on 21 October 2020 and that it took effect on that date. The Applicant states that as a result of his dismissal he was unable to afford rent in Weipa and moved his entire family into a single bedroom in a two bedroom residence occupied by his father. The Applicant also states that his financial circumstances caused him great distress as he was unable to assist his father with rent and that he then moved his family again to the town of Coen, some 250 kilometres from Weipa. The Applicant states that the commenced this move approximately one week after his dismissal and that it took some time for him to transport his family’s possessions to Coen. The Applicant provided no detailed information as to the time of the move sufficient to explain the delay in filing his application. the Applicant also stated that Coen does not have a publicly available internet facility such as a library or internet café and that he did not have access to computer or the internet due to lack of funds.

[13] The Applicant also said that he did not have access to printer and that he managed to obtain use of a printer from a local business and printed and signed his unfair dismissal application on 10 November 2020. The Applicant did not explain why he could not have done this within the 21 day period following his dismissal. The Applicant mailed his unfair dismissal application to the FW Commission on 13 November 2020 and said that the delay between 10 and 13 November was occasioned by lack of funds to pay for postage. The Applicant said that the lack of funds for postage was because he gave priority to feeding his family, which he was barely able to afford to do. The Applicant also said that the COVID-19 Pandemic has impacted on Coen resulting in the closure of a number of businesses from which he could have sought assistance with scanning and emailing his application. Further, the Applicant said that he was overwhelmed by the events surrounding his dismissal and the circumstances in which he found himself.

[14] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. At all times, the Applicant had a smart phone. While he states that this phone was not operative for a period after his dismissal, he provided no evidence as to the dates when this occurred or how it impacted on his ability file his application within the required time. The Applicant was able to access the FW Commission website to print the Form F2 on or around 10 November 2020. The website provides options for filing an unfair dismissal application, including by telephone. There is also a process for applicants experiencing financial difficulty to seek a waiver of the filing fee for such applications.

[15] While it is regrettable, many persons who are dismissed suffer emotional and/or financial distress as a result. It is also regrettable that many persons who are dismissed are required to relocate themselves or their families. Many such persons are able to file unfair dismissal applications within the required time, notwithstanding these matters. While unfortunate, these matters are not of themselves, exceptional circumstances and in the present case, do not provide an acceptable or reasonable explanation for the delay in the Applicant filing his application.

[16] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[17] It is not in dispute that the Applicant was notified of his dismissal 21 October 2020 and that it took effect from that date. The Applicant had the full period of 21 days from 21 October 2020 to file his unfair dismissal application notwithstanding the various matters he raised as an explanation for the failure to do so. In all the circumstances, I consider this to be a neutral consideration.

Action taken to dispute the dismissal

[18] Other than making his unfair dismissal application there is no evidence that the Applicant took steps after his dismissal to dispute it. However, in circumstances where the delay is not extensive, and the question of whether the Respondent should have been on notice of the intention Applicant’s intention to dispute the dismissal is not relevant, this is a neutral consideration.

Prejudice to the employer

[19] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[20] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is clear that there are disputed issues of fact which could only be resolved at a hearing. In the circumstances, this is a neutral consideration.

Fairness as between the person and other persons in a similar position

[21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[22] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect [PR72674] will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr Douglas Huen on his own behalf as the Applicant
Mr Ben Quinn and Ms Audrey Cigrovski on behalf of the Respondent

Hearing details:

2021.

Brisbane:

19 January.

Printed by authority of the Commonwealth Government Printer

<PR726273>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]