Mr Gene Andrews v The Trustee for the Mercury Walch Trust
[2025] FWC 206
•22 JANUARY 2025
| [2025] FWC 206 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gene Andrews
v
The Trustee For The Mercury Walch Trust
(U2024/14959)
| COMMISSIONER TRAN | MELBOURNE, 22 JANUARY 2025 |
Application for an unfair dismissal remedy
On 12 December 2024, Mr Gene Andrews applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth).
Before considering whether a dismissal is unfair the Commission must first be satisfied that an application was made within time or allow a further period of time under section 394.
Mr Andrews says that he learned that he had been dismissed by the Trustee For The Mercury Walch Trust (the Employer / respondent) on Wednesday 20 November 2024. Mr Andrews received his final payslip by email. He replied to that email to confirm that he had received his final payslip and asked for an opportunity for him or someone else to clear out his locker.
The Employer says that they did not dismiss Mr Andrews but that he abandoned his employment around Monday 9 September 2024, when they last heard from him about returning to work after a period of medical leave. The Employer says they finally accepted that abandonment in November 2024 by simply emailing Mr Andrews his final pay slip.
Taking the latest date of 20 November 2024 as the date the dismissal (if any) took effect, the statutory time period of 21 days ended at midnight on Wednesday 11 December 2024. Mr Andrew’s application was filed one day after the end of the statutory time period.
For the application to proceed, the Commission must allow a further period of time within which he may file his application. In order to extend the period, I must be satisfied that there are exceptional circumstances, having regard to all the factors in section 394(3) of the Act and giving those factors due weight. Exceptional circumstances are not defined in the Act but it is well established that the phrase’s ordinary meaning means out of the ordinary, unusual, special or uncommon, but does not need to be unique, unprecedented or very rare.[1]
Mr Andrews says that the reason for the delay was his lack of knowledge about the time limit. He thought it was 30 days. But when he “did some research”, he learned that he only had 21 days. In response to my question, Mr Andrews confirmed that he learned he only had 21 days to lodge his application the day before he lodged his application. If he had lodged it that day, he would have been within time. But he did not.
Mr Andrews said that the reason why he did not lodge his application on the day that he learned of the time limit was that he was “gathering further information and the documents.” However, all Mr Andrews filed was a completed online lodgement and his separation certificate.
Mr Andrews also stated that he was stressed and anxious about the process and the complexity of the Commission’s requirements. He provided no medical evidence in support.
I accept that employment ending and challenging that end can be stressful and anxiety inducing, as can be participating in the Commission’s processes. But I do not have any evidence about how that stress or anxiety rendered Mr Andrews incapable of filing his application. I also do not accept that Mr Andrews has given satisfactory reasons for his delay. The online lodgement form is short. The documents Mr Andrews attached to his application were documents he had in his possession when he learned of the time limit. He did not need to wait to receive any documents in order to complete his application.
I am of the view that this factor does not weigh in favour of a finding of exceptional circumstances.
Mr Andrews first became aware of his dismissal on 20 November 2024. While there may be a factual dispute about when Mr Andrew’s employment ended (due to the Employer’s submissions about abandonment), I have taken this date as the date that Mr Andrew’s dismissal took effect. I am of the view that this factor does not weigh in favour nor against a finding of exceptional circumstances.
The delay of one day is not a long delay. The employer made submissions that despite the delay being one day, the events that are the subject of the substantive application occurred in early to mid 2024. So, the Employer argued that it would be prejudiced in preparing its response due to the impact on recollection of relevant facts by witnesses. I am not persuaded that the Employer is prejudiced by the delay. The delay is short and the issue regarding recollection would not have been materially affected if the application had been made within time. I am of the view that this factor does not weigh in favour nor against a finding of exceptional circumstances.
My assessment of the merits of the application for the purposes of the question about whether to grant an extension of time is primarily whether an applicant has an arguable case. It does not require a detailed analysis of the substantive merits.[2] The Full Bench in Long v Keolis Downer T/A Yarra Trams stated that in relation to this factor, the Commission is not in a position to make findings of fact on contested issues, and nor should parties be required to present their evidentiary cases twice.[3]
While the Employer argues that Mr Andrews’ case is weak as he abandoned his employment; Mr Andrews argues that he was awaiting action that he had requested of the Employer (to book him a medical review appointment) but he then simply received his final payslip. I am of the view that Mr Andrews has an arguable case. Equally, the employer has an arguable further jurisdictional objection (being that it had not dismissed Mr Andrews). Both cases require evidence to be tested. So, this factor does not weigh in favour nor against a finding of exceptional circumstances.
In relation to fairness as between the person and other persons in a similar position. This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission.[4] The Full Bench in Croker indicated that this factor may involve a comparison of cases involving similar facts.[5]
Neither party made submissions relevant to this factor.
There are many cases about ignorance of the time limit. Without more, this cannot substantiate an exceptional circumstance.[6] There are also cases where the delay has been short, but a short delay is not an exceptional circumstance. In Peters v Liquorland (Australia) Pty Ltd,[7] the delay was one minute. In Ozsoy v Monstamac Industries Pty Ltd[8] the delay was one day. In neither matter did the Commission consider that there was an acceptable explanation for delay or that the short period could form exceptional circumstances.
Conclusion
I have considered the arguments made and the information and evidence provided by Mr Andrews. I have considered the factors individually and together. I am of the view that most factors do not weigh in favour nor against a finding of exceptional circumstances. But there are no factors that weigh in favour of a finding of exceptional circumstances. Unfortunately, ignorance of the time limit even together with the short period of delay is not special, unique, uncommon or unusual. As I do not find that there are exceptional circumstances, I cannot allow a further period of time for Mr Andrews to have filed his application and it must be dismissed.
Order
I order that the application for an unfair dismissal remedy under FWC Matter No U2024/14959 filed on 12 December 2024 by Mr Gene Andrews is dismissed.
COMMISSIONER
Appearances:
Mr Gene Andrews, for himself.
Ms Emily Hale, HWL Ebsworth, with permission, for the Respondent.
Hearing details:
Monday
20 January 2025
Via Microsoft Teams
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]; see also Kurtev v KCB Australia Pty Ltd, Toni Telfer[2025] FWCFB 13 at [19] – [20]. Kurtev relates to extensions of time in general protections matters rather than unfair dismissal matters, but the relevant test and factors – excepting one – are the same. Section 366 does not require that the Commission to take into account whether the person first became aware of the dismissal, which is required by s 394(3)(b).
[2] see Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [48]; also, Sutton v Hepburn Shire Council [2022] FWCFB 109 at [26]
[3] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [72]
[4] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]
[5] Croker at [49]
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14]
[7] [2024] FWC 1867
[8] [2014] FWC 479, which was upheld on appeal in Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
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