Mr Kristian Wegener v Carbar Holdings Pty Ltd
[2022] FWC 3380
•30 DECEMBER 2022
| [2022] FWC 3380 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Kristian Wegener
v
Carbar Holdings Pty Ltd
(U2022/10496)
| DEPUTY PRESIDENT LAKE | BRISBANE, 30 DECEMBER 2022 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed
Mr Kristian Wegner (the Applicant) lodged an application with the Fair Work Commission (the Commission) on 31 October 2022 for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Carbar Holdings Pty Ltd (the Respondent) on 6 October 2022, which was effective immediately. It was conceded the lodgement of the application was 25 days after the date of dismissal, being 4 days outside the statutory time limit prescribed by s.394(2) of the Act.
The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension and a hearing was held before me on 20 December 2022.
Should a further period be granted?
Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if it is satisfied that there are exceptional circumstances, taking into account:
(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; and
(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 like position.
The test of “exceptional circumstances” establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:
“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.” [2]
Although Nulty considered the expression “exceptional circumstances” in the context of s.365 of the Act, its reasoning applies to s.394(3).
Applicant’s material
The Applicant submits that he should be granted an extension of time because exceptional circumstances exist in his case. He wrote in his originating Form F2 – Unfair Dismissal Application that he returned from stress leave on 4 October 2022 and was suffering extreme anxiety and panic attacks which prevented him from finding representation on his matter.
Further, the Applicant provided in his evidence that:
(a)he had been suffering from a panic attack and anxiety for the first week of dismissal which would have been around 15 to 16 October 2022.
(b)he made attempts to seek legal representation but the places he contacted wanted upfront payment before providing their services which caused more anxiety while he was filling out the paperwork causing delay. He was not able to pay upfront because of medical bills.
(c)he was looking for work as well with the above events which caused delay.
(d)he was informed in the period which he was contacting lawyers regarding the 21-day statutory limit to file an unfair dismissal application to the Commission.
Respondent’s material
The Respondent submits that the Applicant should not be granted an extension. Further, the Respondent states that:
(a)the Applicant failed to provide evidence or reasons to support the Commission granting an extension per the Notice of Listing;
(b)the Applicant’s mental health condition did not prevent him from submitting his application on time. For instance, requesting to catch up with his ex-colleague Christopher Orth and wanting to attend the worksite on 11 October 2022 and;
(c)the Applicant had submitted in his Witness Statement that he had applied for over 50 permanent and/or short-term contract work.
Consequently, the Respondent’s view is that the Applicant’s reasons for delay do not constitute exceptional circumstances that are out of the ordinary, unusual, special or uncommon.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might constitute exceptional circumstances, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
While the Applicant was clearly working through and confronting a number of personal difficulties following his dismissal which impacted upon his ability to file an unfair dismissal application, I am not satisfied that they meet the high bar required which is out of the ordinary, unusual, special or uncommon. Many applicants experience significant stress and anxiety following dismissal which is not unusual or out of the ordinary. Therefore, while I have sympathy for the Applicant and the predicament he found himself in, I find this factor weighs against the granting of an extension.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant became aware of his dismissal on 6 October 2022. The Applicant was made aware of the statutory time frame during the period where he was finding representation. This factor weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
It is uncontentious that the Applicant did not take steps to dispute the dismissal until he lodged this application. This factor weighs against an extension of time.
Prejudice to the employer (s.394(3)(d))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group, 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.” [8]
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. That said, the process as briefly described by the Respondent appears to have been a measured one. I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may give consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[9] Extreme stress and anxiety did not prevent the Applicant from filing the Application on time as he was able to look for 50 other roles and seek legal representation. This factor weighs against an extension of time.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, while I have sympathy for the Applicant who was obviously going through a difficult time, I am not satisfied that his situation reached the high bar of “exceptional circumstances” that the Act requires before an extension of time can be granted.
Accordingly, I order that the jurisdictional objection be upheld and that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 [31].
Printed by authority of the Commonwealth Government Printer
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