Mr Jason O'Brien v Mulpha Hotel Pty Ltd T/A Intercontinental Hayman Island

[2020] FWC 6745

[2020] FWC 6745

The attached document replaces the document previously issued with the above code on 14 December 2020.

Correction to paragraph numbering.

Callum Young
Associate to Deputy President Asbury.

Dated 15 December 2020.

[2020] FWC 6745

FAIR WORK COMMISSION

DECISION

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

Mr Jason O'Brien
v
Mulpha Hotel Pty Ltd T/A Intercontinental Hayman Island
(U2020/14567)

DEPUTY PRESIDENT ASBURY BRISBANE, 14 DECEMBER 2020

Application for an unfair dismissal remedy – circumstances not exceptional - application dismissed.

Introduction

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

[2] The Applicant was employed by Mulpha Hotel Pty Ltd t/a Intercontinental Hayman Island, from 6 January until his dismissal on 9 October 2020. The Applicant made an unfair dismissal application which was lodged with the Commission on 7 November 2020.

[3] On 14 December 2020, I conducted a hearing, by telephone, in relation whether a further period should be granted to the Applicant to lodge his unfair dismissal application in the Fair Work Commission (Commission).

[4] At the hearing on 14 December 2020, the Applicant gave evidence in support of his application for a further period in which to make his application.
The Respondent, represented by its Director of Human Resources Ms Christy Kirk and its General Manager Mr Arpad Romandy, objected the further period being granted.

Extension of time application

[5] Section 394(2) of the 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). The dismissal took effect on 9 October 2020 and the period of 21 days ended at midnight on 30 October 2020. The application was therefore filed 8 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 explanation provided by the Applicant for the delay is that:

•  He did not receive an employment separation certificate until 25 October 2020;

•  He was waiting for the Respondent to provide material he had requested in relation to the policies he was said to have breached which resulted in his dismissal; and

•  He was suffering from anxiety and was not in the right “headspace”.

[13] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The Applicant knew that he had been dismissed on 9 October 2020 and did not require a separation certificate to file his application. The Form F2 Application filed by the Applicant on 7 November 2020 does not refer to – much less have as appendices – the procedures he states that he was waiting to have sent to him. The application was filed on 7 November 2020 without those procedures being attached referred to, and there is no reason it could not have been filed in the same form, on 30 October when it was due to be filed. The Applicant tendered a medical certificate stating that he suffered from anxiety, but it does not state that he had any impairment that would have prevented him from filing the Application within the required time.

[14] 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

[15] The Applicant says he was notified of his dismissal on 9 October 2020 and that it took effect on that date. The Applicant had the full period of 21 days from 9 October 2020 to lodge his unfair dismissal application. In all the circumstances, I consider this to weigh against a further period being granted.

Action taken to dispute the dismissal

[16] Other than stating on the date he was dismissed, that he intended to make an unfair dismissal application, the Applicant took no action to dispute his dismissal, other than filing an unfair dismissal application. This circumstance weighs against a conclusion that there are exceptional circumstances.

Prejudice to the employer

[17] 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

[18] In the matter of Kornicki v Telstra-Network Technology Group⁶ the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.”7

[19] After considering the material filed by the parties, it is clear that there are factual disputes between the parties which can only be resolved at a hearing. I do not consider that the application is totally without merit, although it is not possible to say that it has strong prospects of success.

[20] Accordingly, I am of the view that the merits are 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. I am also of the view that there are many applications where similar reasons are advanced in support of a further period being granted, and those reasons are found not to be exceptional. This is a neutral consideration in the present case.

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 will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

The Applicant on his own behalf.

Ms C Kirk and Mr A Romandy for the Respondent.

Hearing details:

2020.

By telephone:

14 December 2020.

Printed by authority of the Commonwealth Government Printer

<PR725436>

 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]

6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

7 Ibid.