Mr Enrique Aquino v Hypostyle Pty Ltd
[2024] FWC 2790
•9 OCTOBER 2024
| [2024] FWC 2790 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Enrique Aquino
v
Hypostyle Pty Ltd
(U2024/7952)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 9 OCTOBER 2024 |
Application for an unfair dismissal remedy – application filed 19 days outside of 21 day time limit – no exceptional circumstances – application dismissed.
Introduction
On 9 July 2024, Mr Enrique Aquino (Applicant) filed an unfair dismissal application (Application) under s.394 of the Fair Work Act 2009 (Act), alleging that he was unfairly dismissed by Hypostyle Pty Ltd (Respondent).
Section 394(3) of the Act provides that an application made under s.394 must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to the existence of “exceptional circumstances”).[1]
In its Form F3 (Response), filed on 30 July 2024, the Respondent says that the Applicant’s dismissal was a case of “genuine redundancy” (within the meaning of s.389 of the Act), and otherwise denies that the Applicant’s dismissal was unfair. In reply, the Applicant says that his dismissal was unfair, including because it was for reasons of age-based discrimination, and was not a case of genuine redundancy.
The Applicant was advised of his dismissal on 8 May 2024, and it took effect on 31 May 2024. Given that the dismissal took effect on 31 May 2024, the Applicant should have filed his application on or by 21 June 2024. The Application has thus been filed 19 days outside of (or beyond) the 21-day time limit under s.394(2)(a) of the Act.
On 4 September 2024, Directions were issued to the parties programming (for hearing) the Applicant’s request for an extension of time. Both parties ultimately complied with those Directions. At the hearing conducted on 24 September 2024, Applicant appeared for himself, assisted by Ms Hazel Reindflesh, his daughter, and Mr Johnny Reindflesh, his son-in-law. Mr Ryan Solomon, Managing Director of the Respondent Company, and Ms Eleanora Solomon, appeared for the Respondent.
Legal Principles
Granting an extension of time requires me to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, stated:
“[13] 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.
[14]Mere ignorance of the statutory [21 day] time limit in s.366(1)(a) [or s.394(2)(a)] is not an exceptional circumstance…”[2]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)], is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)] and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
(emphasis added)
The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are outlined in s.394(3) of the Act, which reads:
“394 Application for unfair dismissal remedy
…
(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.”
Each of the individual matters under s.394(3) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.[3]
In Mohammed Ayub v NSW Trains[4], a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ (as required under s.394(3) of the Act) requires the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne
v Abel[5]:
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634.”[6] (my emphasis)
Reason for delay[7]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[8] (Bianco Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[9] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay,[10] but this would be most unusual. The focus is upon the period of delay following the expiry of the 21 day time period, albeit circumstances arising prior to the delay may be relevant.[11]
The Applicant’s reasons for delay are set in his material filed on 12-13 September 2024. The Applicant states that he was aware of the 21 day time limit to file his Application, but that he became aware, well past his dismissal date of 31 May 2024 (i.e. in or about the first week of July 2024 (date unspecified)), that the Respondent’s business was still operational and trading. The Applicant says that he was advised by the Respondent, on 8 May 2024, that its whole business was closing down at the end of May 2024, when the Applicant (along with 3 to 4 other employees), was advised that his role was no longer required at the Respondent and that he and other employees were to be made redundant. Having seen what he considered to be the Respondent’s business still operating, the Applicant formed the view that his dismissal was not a case of genuine redundancy.
In its filed materials, including in its Response, and the emails it filed on 15 September 2024, the Respondent says that its formwork division of the business, where the Applicant worked (performing formwork tasks), ceased trading and operating, and that other employees (in addition to the Applicant) working in or in connection with the formwork side of the Respondent’s business were also made redundant. The Respondent says that the Applicant misconstrues or misunderstands what he was told about the business closing down at the end of May 2024 (i.e. the formwork side of the Respondent’s business was closing down, not the whole of the Respondent’s business).
The summary is that the Applicant asserts that the reason for the late filing of his Application is because of a misrepresentation by the Respondent that its business was being closed down at the end of May 2024, when it did not in fact close down, and the Applicant only became aware of this after the 21-day time limit had expired (prompting him to then file his Application, albeit late).
The Applicant was unable to specify at the hearing the date upon which he became aware that the Respondent’s business was still operating (other than via a reference to the first week of July 2024). He also failed to provide an explanation as to why it took him until the first week of July 2024 to find out that the Respondent’s business was still operating. His evidence that he was told the whole of the Respondent’s business was closing down at the end of May 2024 is not supported by any documentary evidence. On the evidence before me, I do not accept that the Applicant’s reasons for delay are credible or reasonable. I treat the Applicant’s reason for delay as a factor that weighs against any satisfaction as to the existence of exceptional circumstances in this case.
Whether the person first became aware of the dismissal after it had taken effect[12]
The Applicant was aware on 8 May 2024 that his employment would be terminated, effective 31 May 2024. I treat this criterion as a neutral consideration that weighs neither for nor against any satisfaction as to the existence of exceptional circumstances in this case.
Any action taken by the person to dispute the dismissal[13]
The Applicant did not dispute his dismissal prior to filing his Application. I treat this criterion as a neutral consideration that weighs neither for nor against any satisfaction as to the existence of exceptional circumstances in this case.
Prejudice to the employer (including prejudice caused by the delay)[14]
The next criterion to be considered is any prejudice to the Respondent occasioned by the 19 day delay. I am not aware of any such prejudice. Whilst the absence of prejudice is not uncommon, such absence is not a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[15] In this case, I treat this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances in this case.
Merits of the Application[16]
The principles stated Kyvelos v Champion Socks Pty Ltd[17] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth noting and setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[18]
In Kornicki v Telstra-Network Technology Group,[19] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
The Commission “should not embark on a detailed consideration of [a] substantive case” for the purpose of determining whether to grant an extension of time to an applicant. In this case, the merits of the Application were not fully tested before me. I note that all of the evidence as to the substantive merits of the Application (from both the Applicant and the Respondent) is not before me. Further, the fact that a case may be said to be arguable, does not mean that it has reasonable prospects of success, or is unequivocally meritorious.
As previously stated, the Applicant asserts that his dismissal was not a case of genuine redundancy, and that he was dismissed unfairly, including because of his age. Evidence to completely satisfy each of the requisite limbs or criterion under s.389 of the Act is not before me. However, there is no evidence of age based discrimination. Whilst the Applicant’s bare allegations may be arguable, the Respondent’s case outline is that it had genuine operational reasons for making the Applicant’s job redundant,[20] it consulted with the Applicant prior to making him redundant, and that there were no suitable or available roles for the Applicant to be redeployed into (having regard to the Applicant’s skills and experience). All in all, I treat the merits of the Applicant’s case in this matter as weak given that the Respondent’s case as to genuine redundancy is verifiable (albeit on the limited evidence that has been filed). I weigh the merits of the Applicant’s case as pointing against any finding as to the existence of exceptional circumstances.
Fairness as between the person and other persons in a similar position
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there are the same, or similar, characteristics and/or circumstances.[21] Neither party made relevant or substantive submissions in respect of this criteria.
I am not aware of any employees in a similar position to the Applicant, or cases, from a true comparator perspective, where there are the same, or similar, characteristics and/or circumstances as those of the Applicant. Further, even having regard to the previous out of time decisions that I am aware of, none of those cases are on all fours with the specific facts and circumstances of this case. I therefore treat this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Conclusion
Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:
a) four of the criteria are neutral considerations;
b) two of the criteria weigh against any finding or satisfaction as to the existence of exceptional circumstances; and
c) considering the requisite criteria on a collective basis, they do not point towards (or in favour of) satisfaction as to the existence of exceptional circumstances.
Having regard to the evidence and submissions of the parties, and on the basis of my reasons (and findings) set out in this decision, I am not satisfied as to the existence of exceptional circumstances in this case. As a matter of law, I am therefore not in a position to exercise any discretion to grant the Applicant an extension of time to file his Application.[22] I dismiss the Application filed by the Applicant in these proceedings. An Order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
The Applicant, Mr Enrique Aquino, appeared for himself, assisted by his daughter, Ms Hazel Reindflesh, and his son-in-law, Mr Johnny Reindflesh.
Mr Ryan Solomon, Managing Director, Hypostyle Pty Ltd, and Ms Eleanora Solomon, appeared for the Respondent.
[1] See s.394 of the Fair Work Act 2009 (Act).
[2] [2011] FWAFB 975.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[4] [2016] FWCFB 5500.
[5] (1964) 38 ALJR 293.
[6] Ibid, at 301.
[7] Section 394(3)(a) of the Act.
[8] [2021] FWC 3903.
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39]-[40].
[10] Ibid, at [40].
[11] Shaw v ANZ Bank[2015] FWCFB 287, at [12].
[12] Section 394(3)(b) of the Act.
[13] Section 394(3)(c) of the Act.
[14] Section 394(3)(d) of the Act.
[15] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[16] Section 394(3)(e) of the Act.
[17] (1995) 67 IR 298.
[18] Ibid, at 299 to 300.
[19] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[20] See Letter from Mr William Kinsella dated “01/05/2024” (filed by the Respondent via email on 15 September 2024 (9:22pm)).
[21] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37]; Perry v Rio Tinto Shipping[2016] FWCFB 6963, at [41].
[22] Noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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