Mr Peter Manolidis v Domain Paper

[2013] FWC 609

[2013] FWC 609

FAIR WORK COMMISSION

DECISION

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

Mr Peter Manolidis
v
Domain Paper
(U2012/13716)

COMMISSIONER GREGORY MELBOURNE, 31 JANUARY 2013

Extension of time.

[1] This matter concerns an application alleging unfair dismissal brought by the Applicant, Mr Peter Manolidis, under s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Domain Paper for approximately 18 months until his dismissal on 13 September 2012.

[2] The application was lodged with the Tribunal on 1 October 2012, four days beyond the 14 day period specified in s.394(2) for lodging applications pursuant to s.394. On 10 October 2012 a Notice of Listing was sent to the parties regarding a telephone conciliation set down for 19 October 2012. However, the Applicant subsequently advised he did not wish to participate in the conciliation and requested the matter be moved to “a court hearing” 1.

[3] The matter was then set down for hearing on 21 December 2012 to deal with the jurisdictional issue concerning the application being lodged outside of the 14 day period specified by the Act. Directions were issued requiring the Applicant to file and serve written submissions by 16 November 2012 and for the Respondent to file and serve in response by 30 November 2012. However, despite three follow up phone calls from the Tribunal the Applicant failed to comply with those directions.

[4] The matter came on for hearing on 21 December 2012. On that occasion Mr Alan Munt sought leave to appear on behalf of the Respondent. There was no appearance on behalf of the Applicant. Given this situation I adjourned the proceedings and endeavoured to make contact with the Applicant by telephone, but the call went through to his message bank. I left a message asking him to return the call. I was then advised that the Tribunal registry had received an email late on the previous evening from the Applicant stating:

“I've had unfortunate news that my son is ill and have attend to this matter. I am still interested in proving my appoint. I wish to organise another date to appear (sic)” 2.

[5] Upon resumption, the Respondent submitted that in all the circumstances the application should be dismissed. However, I indicated I proposed to again try to make contact with the Applicant by email and to provide seven days for him to, firstly, provide any further explanation for his non-attendance at the hearing on 21 December and, secondly, for him to provide any submissions and evidence he sought to rely upon in support of an extension of time being granted to enable him to pursue his application. I would then consider any material received and decide how the matter should proceed. In the event no response was received within seven days the application would be dismissed. An email setting out these terms was sent to the Applicant by my Associate on 21 December as follows:

“This email is forwarded on behalf of Commissioner Gregory as a follow up to the message left on your voicemail this morning, following your non-attendance at the hearing scheduled at 9.00am this morning.

You have previously failed to comply with Directions issued on 1st November, 2012 despite three subsequent follow up phone calls from staff at Fair Work Australia. Nor have you responded to the message left on your voicemail by Commissioner Gregory this morning.

Accordingly the Commissioner has decided that you now have seven days to provide any submissions and evidence in writing, firstly, explaining your non-attendance at the hearing this morning and, secondly, that you seek to rely upon in support of an extension of time being allowed for your unfair dismissal application which was lodged out of time.

In the event no response is received within seven days the application will be dismissed. Alternatively, any submissions and evidence received will be considered and determined in conjunction with the material already provided by the Respondent.” 3

[6] Later that day the Applicant did, in fact, return my earlier phone call and the same information was conveyed to him in those discussions in terms of how I intended to deal with this matter.

[7] No further contact was received from the Applicant until 9 January 2013 when a message was received from his iPhone stating:

“I'm inquiring about the email I was spose to get on 21 December I haven't received anything can u forward it to this email please so I can respond and get this matter under way thanks peter Manolidis (sic).” 4

[8] The following response was then provided by email to the Applicant by my Associate on the same day:

“This response is provided to your email received today.

As indicated in your discussions with Commissioner Gregory on 21st December the attached email was forwarded to you on that day. It’s contents are self explanatory. We understand that you now state you did not receive that email despite not previously providing the Tribunal with any written correspondence confirming a change in your email address.

Please provide the Tribunal with the material requested in that earlier email by close of business on Friday, 11th January, 2013. Any submissions and evidence received will be considered and determined in conjunction with the material already provided by the Respondent. In the event that nothing further is received by that time the application will be dismissed.

If you have any questions, please don’t hesitate to contact me on the details below.” 5

[9] At 4.41pm on 11 January a further email was received from the Applicant. In large part it concerned the circumstances of the Applicant’s dismissal. In regard to his non-appearance at the hearing on 21 December 2012 he stated:

“On the 21st of december my son was very sick and i had to attend to him ive already explained this in an email that my son was ill and wasnt able to attend i found out that late thursday night and had no chance of contactiong anyone regarding this i wrote an email hopping you would get it in the morning. I want this opportunity to prove that i was bullied and nearly had nervous break down i deserve this chance to prove and have a good concious that ive done right thing (sic).” 6

[10] In regard to the reasons why the Application was filed out of time he stated:

“My application to worksafe was late i had nothing when i got fired i suffered severely the death threats the abuse i had no job no income i stayed hom and was hurting so badly thinking what have i done wrong i had no conclusion i had no money time past i had written the application but had no money to send by fax i went post offfice see how much 3.95 a page no way i couldnt affortded luckily my friends mum helped me send it i just wanbt to prove my point please give this opportuniuty i deserve it thank u soo much hope to hear from u soon (sic)”. 7

[11] Section 394(3) of the Act states that the Tribunal may allow a further period for an application to be made pursuant to s.394(2) if the Tribunal is satisfied there are exceptional circumstances taking into account the following considerations.

“(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.” 8

[12] The Applicant has shown a consistent pattern of disregard for the procedures set down to deal with the application but has finally provided a brief submission as to why the application was lodged out of time in the email of 11 January 2013. In summary the Applicant submits he was upset by his termination and could not afford the cost of faxing in an application to the Tribunal until assisted by “a friend’s mum”.

[13] In regard to the other consideration in s. 394(3) the Applicant was apparently aware of his dismissal at the time it occurred. He has sought to take issue with his dismissal as evidenced by this application, notwithstanding his various failures to observe the processes set down for dealing with the matter. Clearly, the employer is impacted by having to respond to the application and has done so in accordance with the directions issued. The merits of the application, based on what has been received from the Applicant and the employer’s submissions in response, are clearly contested, although I am not in a position to form any view about the respective merits based on what is before me. Finally, nothing has been put in regard to issues to do with fairness between the Applicant and another person.

[14] The Respondent in its written submission reserved its right to make further submissions if anything was received from the Applicant but made reference to various authorities in support of its submission that the onus is on the Applicant to show “exceptional circumstances”. They also submitted each case must be judged on its merits and its own particular fact situation and that ignorance of the 14 day time limit is no excuse.

[15] The principles concerning what constitutes “exceptional circumstances” are well established. In the Full Bench decision in Nulty v. Blue Star Group Pty Ltd 9the Full Bench was dealing with an extension of time application under s.365, but those provisions are similar to those contained in s.394(3). It indicated at paragraphs [13] - [15] of its decision:

“[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 time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains 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) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 10

[16] The issue was also considered by this Tribunal’s predecessor when dealing with similar legislative provisions to those now contained in the Fair Work Act 2009. In Kyvelos v. Champion Socks Pty Limited 11a Full Bench of the Australian Industrial Relations Commission said:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) 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.” 12

[17] However, the Full Bench continued:

“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 pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 13

[18] The following view has also been expressed in an application for an extension of time in Raylene Reeve v. Ramsay Health Care Limited 14 when Commissioner Williams stated at paragraph [18]:

“As was noted by the Full Bench of Fair Work Australia in Dr Bing Du v. University of Ballarat (C2011/3808) [2011] FWAFB 5225, at paragraph 31, when considering a similar provision in the Act regarding an extension of time for unfair dismissal applications, it is not unusual for employees who had been dismissed to not be aware of the law and to be unable to pay for advice for legal costs.” 15

[19] As indicated, I have taken into account each of the considerations contained in s.394(3)(a) to (e) and the decisions referred to above, as well as the limited submissions that have been provided in regard to this matter by the Applicant, despite the various opportunities provided to him. I am not satisfied that exceptional circumstances exist to allow additional time to be granted for the application to be made beyond that specified in s.394(2)(a). The application is dismissed.

COMMISSIONER

Appearances:

Mr A. Munt of Advisory Business Solutions on behalf of the Respondent.

Hearing details:

2012.

Melbourne:

21 December.

Final written submissions:

Further written submissions for the Applicant - 11 January 2013.

 1   Email received 11 October 2012

 2   Email received 20 December 2012

 3   Email sent 21 December 2012

 4   Email received 9 January 2013

 5   Email sent 9 January 2013

 6   Email received 11 January 2013

 7   Ibid.

 8   Fair Work Act 2009 s. 394(3)

 9   [2011] FWAFB 975, PR506750.

 10   Ibid [13] - [15]

 11  T2421

 12   Ibid [14]

 13   Ibid.

 14   [2011] FWA 5349

 15   Ibid [18]

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