Mr Rodger Woollen v Steel-Line Group t/a Mirage Doors

[2014] FWC 6025

[2014] FWC 6025

FAIR WORK COMMISSION

DECISION

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

Mr Rodger Woollen
v
Steel-Line Group t/a Mirage Doors
(U2014/5010)

DEPUTY PRESIDENT ASBURY BRISBANE, 1 SEPTEMBER 2014

Application for unfair dismissal remedy - Jurisdiction - Extension of time.

[1] Mr Roger Woollen applies for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment by the Steel-Line Group t/a Mirage Garage Doors. A Form F3 Employer Response to the application was filed by Mirage Industries Pty Ltd t/a Mirage Industries. I assume that this is the entity that employed Mr Woollen. Mr Woollen states in his Form F2 Application for an unfair dismissal remedy that he was notified of his dismissal on 9 December 2013 and that it took effect on that date. The application was made on 26 February 2014.

[2] By virtue of s.394(2) of the Act 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 under s.394(3). Mr Woollen’s application was made 58 days outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s.394(3) for the application to be made. That sub-section provides as follows:

(3) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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

[3] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[4] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2 Each of the matters in s.394(3) is considered below.

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Mr Woollen to make his application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine with respect to any statements provided by the other party. Both parties have filed and served material including submissions and witness statements. Neither party has indicated that it wishes to cross-examine any person who has made a statement. Accordingly, I have determined this matter on the basis of the material on the file.

[6] Mr Woollen did not comply with the Directions which required him to file a submission and and/or a statement in relation to why the Commission should allow a further period for him to make his application. A number of attempts were made by my Associate to contact Mr Woollen by telephone and email without success. Mr Woollen was informed that he was required to provide his material, and his reasons for non-compliance with the Directions.

[7] On 1 June 2014 Mr Woollen forwarded an email to my Chambers in the following terms:

“Reason for delay – Please note the reasons for my delay in responding to the email correspondence as follows:

● Uncertainty around my employment situation has meant my focus has been directed around securing employment to ensure I have sufficient income with which to meet my living expenses
● The stress associated with the uncertainty around my employment has impacted on my capacity to be as effective as I could be to address this matter in a timely way”

[8] It is not clear whether this is Mr Woollen’s explanation for the delay in responding to the Directions or his explanation for failing to make his application for an unfair dismissal remedy within the required time. In his Form F2 Application for an unfair dismissal remedy, Mr Woollen asserts that some four weeks after he was dismissed, his job was advertised. Mr Woollen further asserts that he sought advice from Legal Aid and it took three weeks for that organisation to respond to him. He then completed a form and went to file it in person, only to be told that it was the incorrect form. No details of the dates upon which these events occurred are provided by Mr Woollen.

[9] The Respondent contends that Mr Woollen’s dismissal was a case of genuine redundancy. In relation to the job advertisement, the Respondent states that after Mr Woollen was dismissed, another employee resigned and it was necessary to fill that employee’s role. The Respondent also states that when Mr Woollen was dismissed he was told that he could apply for any future roles and he did not apply for the role about which he now complains. The Respondent also states that Mr Woollen’s application was made 36 days after that advertisement appeared.

[10] On the basis of the material before me, I am unable to be satisfied that there are exceptional circumstances such that the discretion to allow a further period in which to make an unfair dismissal application should be exercised in favour of Mr Woollen. There is nothing exceptional about the reasons he provides for the delay in making his application. Most employees who are dismissed suffer distress and still manage to file an application within the required time.

[11] Mr Woollen has also failed to provide sufficient information about the series of events which lead to the delay and has not adequately explained his lack of action after his job was allegedly advertised.

[12] Mr Woollen was clearly aware of his dismissal and the date upon which it took effect. Other than filing his application, there is no evidence that Mr Woollen took any action to dispute his dismissal. In relation to the merits of the application, there is a further impediment to the application proceeding on the basis that the Respondent asserts that the dismissal was a case of genuine redundancy. There is no indication that the merits of the application are such that this factor outweighs a significant delay in making the application without adequate reasons.

[13] The Respondent has not pointed to any prejudice as a result of the delay. In relation to the issue of fairness between Mr Woollen and other persons in a like position, to allow a further period in circumstances where there is no adequate explanation for the delay and no exceptional circumstances, would be unfair to the many applicants who have been refused extensions.

[14] For these reasons, I am not satisfied that there are exceptional circumstances or that the discretion to allow a further period for Mr Woollen’s application to be made should be exercised. Mr Woollen’s application for an unfair dismissal remedy U2014/5010 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

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