Mr John Archer v Patties Foods Pty Ltd
[2025] FWC 466
•17 FEBRUARY 2025
| [2025] FWC 466 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Archer
v
Patties Foods Pty Ltd
(U2025/285)
| COMMISSIONER TRAN | MELBOURNE, 17 FEBRUARY 2025 |
Application for an unfair dismissal remedy
Before considering whether a dismissal is unfair the Fair Work Commission must be satisfied that an application was made within time or allow a further period of time under section 394 of the Fair Work Act 2009 (Cth).
In this matter, I formed the view that there are exceptional circumstances, and that the factors in s 394(3)(a) – the reason for the delay – and s 394(3)(f) – fairness as between the applicant and other persons in a similar position – weigh in favour of that finding.
I delivered a decision ex-tempore shortly after the hearing on 14 February 2025 but indicated that I would publish detailed written reasons.
On 8 January 2025, Mr John Archer applied to the Commission for an unfair dismissal remedy under section 394 of the Act. The application was filed by the United Workers Union (UWU) on Mr Archer’s behalf.
Mr Archer says that he was dismissed by Patties Foods Pty Ltd on 4 December 2024. Both parties provided a letter of termination that clearly identifies this date. In addition, Mr Archer’s evidence is that he attended a meeting on 4 December 2024 and Patties Foods told him during that meeting that his employment was terminated effective immediately.
So, the statutory time period of 21 days ended at midnight on Wednesday 25 December 2024. As this would have been a public holiday, the time period is automatically extended until the next day that was not a Saturday, Sunday or holiday, in accordance with s 36(2) of the Acts Interpretation Act 1901 (Cth).[1] The application filed on 8 January 2025 was filed 14 days after the end of the statutory time period (or 12 if the time period is taken to end on the next business day after the public holiday). So, Mr Archer requires an extension of time for his application to have been made in accordance with the Act.
To extend time, I must be satisfied that there are exceptional circumstances, having regard to the factors in section 394(3) of the Act.
The parties filed outlines of arguments, witness statements and supporting documents in accordance with my directions. I held a hearing, via Microsoft Teams, on Friday 14 February 2025. The employer indicated that it did not require any of the applicant’s witnesses for cross-examination and so I accepted the unchallenged evidence of:
-Mr John Archer, the applicant;
-Mr Dave Harris, Organiser for the United Workers Union; and
-Mr Sheldon Oski, Lead Industrial Officer (Vic/Tas) for the United Workers Union.
What are exceptional circumstances?
Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd[2] establishes the following:
· the Commission must consider all of the circumstances;
· the phrase’s ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
· but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
· a single event can be exceptional;
· a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon;
The matters in s 394(3) are factors to be taken into account in ascertaining whether there are exceptional circumstances. The factors themselves do not have to be exceptional. Whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[3]
394(3)(a) – the reason for the delay
Mr Archer says that the sole reason for the delay was representative error. He gave unchallenged evidence that immediately after the termination of his employment, he spoke with UWU Organiser Dave Harris. Mr Harris had attended the meeting as Mr Archer’s support person. Mr Harris asked Mr Archer if he wanted to challenge his dismissal and Mr Archer said that he did. Mr Harris then said that he would send the matter to legal “to get the ball rolling” and that legal would be in contact with Mr Archer. Mr Harris’s evidence is that he did not inform Mr Archer of the statutory limitation period.
Mr Harris says that he told Mr Archer:
“I will get it filed. Send me your response, and I will do what I have to do with the filing and someone will give you a call.”
Mr Harris then referred Mr Archer’s matter to UWU’s legal team by submitting a ‘Termination Request.’ Mr Harris was of the understanding that once he completed the termination request, the matter would be assigned to an industrial officer. Mr Harris’ evidence is that he took no further steps after submitting the request.
Mr Sheldon Oski, UWU Lead Industrial Officer (Vic/Tas) also gave evidence. He gave evidence about the Union’s general referral process and the specific process immediately before a shutdown period. The Union’s shutdown period was from Friday 20 December 2024 until Monday 6 January 2025.
Mr Oski gave evidence that he was responsible for allocating work, including to 2 industrial officers who continued to work during the shutdown period. He gave evidence that there were a higher than usual number of referrals in the week from 16 December to Friday 20 December 2024. Mr Oski gave evidence of his triaging process and says that while he identified several cases that fell into the category of termination of employment matters where the 21-day deadline for filing fell within the shutdown period, he missed Mr Archer’s matter in this assessment. He says it this was an uncharacteristic error and also gave evidence about the other matters that he was involved in during that week which may explain why the error was made.
Mr Oski gave evidence that when he returned to work on Monday 6 January 2025, he then began the process of triaging the matters that he had not identified as having a deadline within the shutdown period. This included Mr Archer’s matter. After he identified that it was a matter in which the 21-day deadline had passed, he sought advice from Sean Howe, National Industrial Coordinator, and sought instructions from Mr Archer to file the application. He then filed the application on 8 January 2025.
It is clear from the evidence provided that Mr Archer gave clear instructions to Mr Harris that he wanted to challenge his dismissal and was informed that the Union would file it. He received one enquiry from the Union, and responded to that immediately. After the deadline, he also acted quickly in giving instructions to the Union. Mr Archer is blameless in the delay and I accept that representative error is the cause of the delay.
The employer accepts that Mr Archer did not contribute to the delay but challenges that neither Mr Harris nor Mr Oski give acceptable reasons for their delay. Mr Harris acted within the time limit, even if he did not act immediately on Mr Archer’s instructions. Mr Oski does give reasons for why, despite his role as Lead Industrial Officer and despite the processes in place for triaging referrals that relate to termination and having skeleton staff over the union’s shutdown period, Mr Archer’s matter was missed as an uncharacteristic error. That is, it was the result of the high volume of referrals and Mr Oski’s unusual busyness prior to the union’s shutdown. What is key, however, is that Mr Archer – the applicant in this matter – is blameless in the delay.
I consider that this weighs in favour of a finding of exceptional circumstances.
394(3)(b) – whether the person first became aware of the dismissal after it had taken effect
I am of the view that this factor neither weighs in favour nor against a finding of exceptional circumstances. This is because Mr Archer became aware of his dismissal when it occurred. The parties did not make submissions relevant to this factor.
394(3)(c) any action taken by the person to dispute the dismissal
I am of the view that this factor neither weighs in favour nor against a finding of exceptional circumstances. This is because, while Mr Archer wanted to challenge his dismissal, he took no steps to dispute the dismissal of which his employer was aware. The parties did not make submissions relevant to this factor.
394(3)(d) – prejudice to the employer (including prejudice caused by the delay)
The delay was a relatively short period – 14 days counting from 25 December 2025 until 8 January 2025 (the date the application as filed). The parties did not make submissions about whether there was prejudice caused by the delay.
The employer submitted that it is prejudiced by the bare application that the union did eventually file on behalf of Mr Archer. I accept that application was bare and this made it difficult for the employer to respond to it. While a representative could file an application with greater detail even in a short period, I accept the Union’s reasons for why a bare application may have been filed – that is, to ensure that there was no further delay.
The employer’s concern about its opportunity to properly respond may be alleviated by the usual timetabling prior to arbitration, in which it will be provided with an opportunity in directions prior to a hearing into the substantive matter.
As such, I am of the view that this factor neither weighs in favour nor against a finding of exceptional circumstances.
394(3)(e) – the merits of the application
In relation to the merits of the application, the Commission considers whether an applicant has an arguable case, but it is not required to undertake a detailed analysis of the substantive merits.[4] Evidence about the merits is not called for in an extension of time matter, and nor should it be as that would require the parties to potentially run their case twice.[5]
In relation to this factor, the employer submits that the F2 application form was brief and therefore there is no indication that Mr Archer’s application has any merits of success.
Mr Archer in his application simply submits that the dismissal was harsh, unjust or unreasonable. In his unchallenged witness statement, Mr Archer contests that the employer had a valid reason to dismiss him. The employer says that it had multiple valid reasons, as outlined in its termination letter.
These are matters of fact in contest, that would require evidence and testing of that evidence. So, I do not consider that the application has no merits. I am of the view that this factor does not weigh in favour nor against a finding of exceptional circumstances.
394(3)(f) – 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.[6] The Full Bench in Croker indicated that this factor may involve a comparison of cases involving similar facts.[7]
I drew the parties’ attention to a recent Full Bench decision in Jordan v Multiplex Australasia Pty Ltd,[8] which related to representative error. This matter is not on all fours with Jordan, as the representative in that matter miscalculated the time limit. However, the Full Bench in that case said,[9]
“It is out of the ordinary course, unusual and special for applicants in unfair dismissal cases to take timely action to instruct their union to provide representation and assistance to file unfair dismissal applications, be responsive and forthcoming with information to their union representative, have represented to them that the union will handle the filing of the applications, not sit on their hands and do nothing for an extended period of time, only to find out that their union representative miscalculated the 21 day time period by one business day, with the result that their applications were filed three days late.”
Similarly, in this matter no blame can be apportioned to Mr Archer for the delay. He acted promptly, gave clear instructions and was informed that the Union would handle the filing.
I am of the view that this factor weights in favour of a finding of exceptional circumstances.
Conclusion
I am of the view that there are exceptional circumstances in this matter. Mr Archer clearly gave instructions to his union representative. He responded promptly to enquiries and he was informed that the union would handle his application. This is a clear instance of representative error and I am of the view that it would be contrary to the prevailing case law to not extend the time for Mr Archer to file his application.
Order
I order that the time for Mr John Archer to make his application for an unfair dismissal remedy under s 394 of the Act be extended to the actual date of lodgement, which was 8 January 2025.
COMMISSIONER
Appearances:
Ms Annette Van Gent, United Workers Union on behalf of the Applicant
Ms Kym Beeston on behalf of the Respondent
Hearing details:
Friday
14 February 2025
Via Microsoft Teams
[1] Which applies to the Fair Work Act per s 40A of the Act
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[3] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39]
[4] see Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [48]; also, Sutton v Hepburn Shire Council [2022] FWCFB 109 at [26]
[5] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [72]
[6] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]
[7] Croker at [49]
[8] [2024] FWCFB 440
[9] Jordan at [49]
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