Mr Samuel Neal v Gindaja Substance Misuse Aboriginal Corp

[2021] FWC 3503

[2021] FWC 3503

FAIR WORK COMMISSION

DECISION

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

Mr Samuel Neal
v
Gindaja Substance Misuse Aboriginal Corp
(U2021/1820)

COMMISSIONER HUNT BRISBANE, 17 JUNE 2021

Application for an unfair dismissal remedy – application made outside of 21-day time limit – subsequent application by the Respondent for dismissal of the application under s.399A or s.587(c) of the Act – unfair dismissal application dismissed.

[1] On 4 March 2021, Mr Samuel Neal filed an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) alleging that his employer, Gindaja Treatment and Healing Indigenous Corporation (Gindaja/the Respondent), unfairly dismissed him.

[2] In his application, Mr Neal said that he was dismissed on 9 February 2021. Pursuant to s.394 of the Act, an application for unfair dismissal must be made within 21 days after the dismissal took effect. Accordingly, Mr Neal’s application was made two days after the statutory time limit. Mr Neal gave reasons in his application as to why the application was lodged outside of the time limit.

Legislation

[3] Section 394 of the Act provides the criteria required to obtain an unfair dismissal remedy:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) 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.”

[4] As the application has been made outside the 21-day time limit prescribed by s.394(2)(a) of the Act, Mr Neal’s unfair dismissal application can only be validly made if this time limit is extended in accordance with s.394(3) of the Act. 1

Directions issued for evidence and submissions to determine the out of time application

[5] At the time of filing his application, Mr Neal was represented by the Health Services Union NSW (the HSU). Mr Andrew Gallagher, Assistant Industrial Officer of the HSU completed the Form F2 application for unfair dismissal. In response to the question as to whether the application has been made within the 21-day time limit, Mr Gallagher answered:

“1. The unfair dismissal application is being lodged outside of the 21 day time limit due to representative error.

2. The Applicant contacted the HSU on 24 February 2021.

3. On 25 February 2021, The Applicant informed the HSU they had been terminated on 09 February 2021, the 21-day time limit expires on COB 02 March 2021.

4. Due to internal administrative error by the HSU, the application is being lodged 04 March 2021.”

[6] The matter was allocated to me for consideration of the extension of time issue. On 31 March 2021, I issued directions requiring filing of the following material by 9 April 2021:

(a) a statement by the HSU in support of the representative error issue; a

(b) a statement by Mr Neal as to his actions to have the application made;

(c) written submissions of Mr Neal addressing s.394(3) of the Act; and

(d) a completed Form F3 – Employer response (to be filed by 14 April 2021).

[7] On 1 April 2021, the HSU sought an extension of time to file material to 16 April 2021. The request was granted.

[8] On 8 April 2021, the HSU filed a Form F54 – Notice that lawyer or paid agent has ceased to act for a person.

[9] Mr Neal failed to file any materials by 16 April 2021, as directed, and the matter was listed for a non-compliance hearing by telephone on 21 April 2021.

[10] At the non-compliance telephone hearing on 21 April 2021, Mr Neal appeared for himself. The Respondent was granted leave to be represented by Ms Lisa Midson, Partner of MJSP Management Consulting. Also in attendance was Mr Robin Schrieber of the Respondent.

[11] Mr Neal explained that he lives in a very remote regional area, and he has very little money to live on. He stated that he cannot pay for fuel, and he often doesn’t have money to put credit on his phone. He sometimes pays $30 - $40 to recharge his phone, but he does not have a phone plan. He can often only receive texts and calls.

[12] He stated that following his dismissal he called the HSU. His evidence is “they” told him they would get back in touch with him.

[13] He had been making use of his nephew’s email account, but now does have his own email account. Following the hearing, correspondence was sent to Mr Neal’s email account, and that of his nephew.

[14] Mr Neal was directed to file further material addressing the extension of time issue.An Order was also issued,requiring the HSU to file any notes or other evidence relevant to Mr Neal’s employment dispute, and a witness statement from the person(s) who had carriage of Mr Neal’s enquiries. Detail was requested as to the steps the HSU said it would take to make Mr Neal’s unfair dismissal application. The HSU filed these materials as ordered. Mr Neal failed to file any further materials.

[15] A telephone jurisdictional hearing was listed for 13 May 2021.

[16] On 12 May 2021, Gindaja filed a completed Form F3 – Employer response form as well as written submissions addressing the extension of time issue. It stated that it did not require the HSU witnesses to be cross-examined. In its submissions, Gindaja made an application pursuant to s.399A or in the alternative s.587(c) of the Act, for the Commission to dismiss Mr Neal’s application.

[17] At the time of the hearing on 13 May 2021, three attempts were made to dial in Mr Neal however these attempted calls went to his message bank. Correspondence was also sent to Mr Neal, directing that if he did not make himself available by 10.30am, the matter would be determined on the papers. Mr Neal failed to attend. He has made no attempts to contact my chambers to explain his non-attendance at the jurisdictional hearing.

[18] This decision deals with the out of time matter as well as the Respondent’s application for dismissal of the application under s.399A or in the alternative s.587(c) of the Act, and is determined on the materials before the Commission.

Mr Neal’s submissions and evidence

[19] Mr Neal was employed by the Respondent from 18 October 2019 to 9 February 2021, a period of approximately 16 months. No further evidence other than his statement at the non-compliance hearing at [12] was provided to the Commission.

Witness statements filed by the HSU

[20] Witness statements were filed by Ms Kym Morgan, Industrial Services Officer for the HSU, and Mr Andrew Gallagher.

[21] Ms Morgan stated that Mr Neal had made contact with the HSU from 9 June 2020, regarding a workplace meeting for which Mr Neal sought a representative of the HSU to attend as a support person. Ms Morgan said that further to that interaction, the HSU’s records show the next note recorded in the system was made on 22 February 2021 stating, “Rejection letter posted”.

[22] Ms Morgan’s evidence is that she understood this to relate to an unsuccessful attempt to debit Mr Neal’s HSU fees from his nominated account. The next note on Mr Neal’s file stated:

“24/02/2021 – Left message for member to call back. ms

2nc call – Called mbl, spoke to member who advised that he lost his job last week – asked member if he would like MSD’s assistance during this time he said yes – wil ref case to MSD. Member is looking for work within industry, advised member a membership specialist will be in touch. GMcF

DD rejections. Called mbl. No answer. Left a MSG. Gmay.”

[23] Ms Morgan stated that this note was not made by her, however she understood that Mr Neal was called by another HSU staff member about the non-payment of his fees. Upon speaking to Mr Neal, he advised he had been dismissed, and the staff member told Mr Neal that he would be referred to the Member Services Division for assistance.

[24] Ms Morgan stated that on 24 February 2021 she attempted to call Mr Neal but could not get through. On 25 February 2021, she called Mr Neal about his dismissal and did make contact. She made a call note as follows:

“Called member at 3.18pm

Member stated that he was called into a meeting on 9/02/2021 and was given a letter of termination

Member stated that there has been previous performance concerns

See related call C-[redacted]

Member has no email address

He will get his nephew to email termination letter tomorrow – email sent via SMS

Member has been advised, once received I will refer his matter to IO”

[25] Ms Morgan provided that on 26 February 2021, she received a copy of Mr Neal’s termination letter via email, sent by Mr Neal’s nephew. It reads:

“Dear Ms Morgan,

I am forwarding through relevant documentation to supports Samuel Luke Neal claim.

As you are aware of his current circumstances.

Please find attached below the documents.

Thank you.”

[26] Ms Morgan stated that she forwarded all relevant documents to her manager, Ms Ayshe Lewis on 2 March 2021. She stated that she had no other contact with Mr Neal or involvement in his case.

[27] Mr Gallagher provided that on 4 March 2021, he received an email from Ms Lewis, Manager of the HSU Industrial Division, which was sent to all staff in the Industrial team and asking for volunteers to pick up two cases, one being Mr Neal’s case. The email from Ms Lewis states, relevant to Mr Neal, “Samuel Neal – was dismissed on 9 February and contacted us on 2 March.” This is, of course, not correct. Mr Gallagher replied by email the same day, advising he would pick up Mr Neal’s case.

[28] Mr Gallagher stated that around 11.30am on 4 March 2021, he attempted to call Mr Neal but could not get through. He stated that as the application was out of time, and as he could see call notes on the database noting that Mr Neal had already contacted the HSU to challenge his dismissal, Mr Gallagher prepared and filed the unfair dismissal application on that date.

[29] Mr Neal said that around 3.40pm that same day, Mr Neal returned his call and they had a conversation to the following effect:

Mr Gallagher: Thank you for returning my messages, Kym advised you were terminated at the start of February and were wanting assistance in running an unfair dismissal?

Mr Neal: Yes, I would like to fight it. It was only few absences in a month, so I think I was bullied and harassed.

Mr Gallagher: Okay, as there is a 21-day limit which has already expired I made the application to the Commission earlier today, if you change your mind we can discontinue the application.

[30] Mr Gallagher stated that he had not spoken to Mr Neal since the conversation of 4 March 2021 as outlined above.

Respondent’s submissions

[31] Gindaja submitted that Mr Neal was dismissed on 9 February 2021 following repeated incidences of lateness for work and unreliability. It submitted that Mr Neal’s dismissal followed ongoing performance concerns, including a performance improvement plan issued in 2020.

[32] Gindaja noted that the application was filed two days outside the statutory time limit, and that while Mr Neal relied on representative error, the HSU filed a notice that it was ceasing to act for Mr Neal on 8 April 2021.

[33] Gindaja submitted that Mr Neal was directed to file materials explaining the circumstances of his late filing, which he failed to do. It noted that following the non-compliance hearing of 21 April 2021, Mr Neal was further directed to file material and failed to do so.

[34] As to the statements filed on behalf of the HSU, Gindaja submitted that the evidence demonstrates it was the HSU who initiated contact with Mr Neal on 24 February 2021, following a failed membership payment, and only after that event did the HSU learn of Mr Neal’s dismissal. Gindaja submitted that Mr Neal then did not provide his dismissal letter to the HSU until 26 February 2021, and the HSU has provided no evidence of clear instructions from Mr Neal to file an unfair dismissal application. Gindaja said that on the evidence, it was the HSU who initiated contact and filed the application on 4 March 2021.

[35] Gindaja submitted that there is little evidence as to why the application was not filed after 26 February 2021 and before 2 March 2020; and representative error is not the only relevant consideration for that period.

[36] Gindaja submitted that Mr Neal contributed to the delay by waiting until the 18th day after his dismissal to discuss this with his representative, and as he had sought assistance from the HSU previously, Mr Neal knew or ought to have known to contact his representative for assistance following his dismissal.

[37] Gindaja also submitted that Mr Neal’s application is unmeritorious.

Respondent’s application for dismissal of Mr Neal’s application

[38] Further to its submissions addressing the extension of time matter, Gindaja made an application pursuant to s.399A or in the alternative s.587(c) of the Act, for the Commission to dismiss the application.

[39] Gindaja submitted that Mr Neal has unreasonably failed to comply with a direction or order of the Commission in relation to the application on two occasions. Further, pursuant to s.587(c), it submitted that the application has no reasonable prospects of success as Mr Neal was dismissed:

a. Because he had repeatedly attended for work late and was generally unreliable;

b. He was notified of that reason;

c. He was offered an opportunity to respond;

d. He was offered the opportunity to have a support person;

e. He had been warned about the conduct which gave rise to his dismissal;

f. The Respondent employs approximately 40 staff and does not have dedicated human resource management staff;

g. The Respondent submits that Mr Neal’s conduct over the course of this matter is further evidence of the unreliability he displayed during his employment with the Respondent.

h. The Respondent further contends that neither Mr Neal nor the HSU made any genuine attempt to advance this application beyond its filing on 4 March 2021 and their inattention has caused needless cost and inconvenience to the Respondent and the Commission.

Legislation

[40] Section 399A of the Act provides:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[41] Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

Consideration relevant to s.399A

[42] At the time the Respondent made the s.399A application, Mr Neal had failed to comply with a direction of the Commission relating to his application. He had not, at that point, on 12 May 2021, failed to attend any hearing or conference of the Commission.

[43] Having heard from Mr Neal at the non-compliance hearing on 21 April 2021 and giving consideration to the fact that I am of the view he is not a sophisticated party to these proceedings, I do not consider that he acted unreasonably in failing to the comply with the direction issued to provide important and relevant evidence to the Commission. It was likely, given his level of sophistication, that he would have suitably led oral evidence before the Commission during the hearing of 13 May 2021, if he had attended.

[44] The s.399A application having been made on 12 May 2021, could not have contemplated Mr Neal’s failure to attend the hearing on 13 May 2021 and it is improper for me to now have regard to that in considering the s.399A application.

[45] Having found that Mr Neal did not act unreasonably in failing to file material as directed, it is not available to me to exercise my discretion to dismiss the application. The application to dismiss pursuant to s.399A of the Act is dismissed.

Consideration relevant to s.587

[46] The power in s.587 of the Act is discretionary. The discretion is broad and the grounds in s.587(1)(a), (b) and (c) do not limit the Commission’s power to dismiss applications for other reasons.

[47] The application presently before the Commission is that Ms Neal’s unfair dismissal application should be dismissed pursuant to s.587(1)(c), that the application has no reasonable prospects of success.

[48] I have had regard to the decision of Deputy President Asbury in Brown v The Trustee for Belgravia Leisure unit Trust T/A Ferny Hills Swimming Pool 2 where the Deputy President stated the following:

“Section 587(c) empowers the Commission to dismiss an application on the basis that the application has no reasonable prospects of success. A conclusion that a case has no reasonable prospects of success should only be reached with extreme caution and in circumstances where it is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”

[49] Noting that I have not required the parties to file any material relevant to the merits of the case, I do not have any evidence before that would satisfy me that I should exercise my discretion to determine that Mr Neal’s case has no reasonable prospects of success. The application to dismiss pursuant to s.587 of the Act is dismissed.

Applicable case law relevant to s.394(3)

[50] Turning to s.394(3), the meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd³where the Full Bench said:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.” [Endnotes not reproduced]

[51] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,⁴ a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers⁵ stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:⁶

“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.” (original emphasis)

Consideration

Section 394(3)(a) - The reason for the delay

[52] The contention before me is that the reason for the delay in bringing the application is on account of representative error. I understand Mr Neal’s position to be that after he had spoken with a HSU representative on 25 February 2021, and his nephew forwarded to the HSU his termination letter on 26 February 2021, he understood that somebody from the HSU would get back in touch with him.

[53] The Respondent submitted that but for the HSU contacting Mr Neal on 24 February 2021 to discuss his unpaid membership, no contact would have been made between Mr Neal and the HSU. I am not prepared to make such an assumption.

[54] What is clear is that Mr Neal and Ms Morgan somewhat agree relevant to the discussion held on 25 February 2021; Mr Neal’s evidence is that he was told that somebody would get back in touch, and Ms Morgan’s evidence is that once the termination letter is received, she will refer his matter to an Industrial Officer.

[55] The email sent by Mr Neal’s nephew on 26 February 2021 demonstrates, in my view, that Mr Neal’s nephew understood that Mr Neal wished to make a claim.

[56] Having understood the way Mr Gallagher conducts himself, if he had received notification by 2 March 2021 or earlier of Mr Neal’s matter, he would have filed the application within the time limit. Regretfully, he did not receive the information until 4 March 2021, and was then also not informed that contact had been made as early as 24 February 2021. Mr Gallagher promptly went about filing the application on 4 March 2021 without express instructions from Mr Neal. Later that day he discussed the matter with Mr Neal, informing him that he had made the application. Mr Neal confirmed that he wanted to pursue the application.

[57] Mr Neal has not provided any evidence to the Commission that following the conversation of 25 February 2021, he was satisfied an application would be made on his behalf by the HSU within the statutory time limit. He has been provided every opportunity to do so, however, the highest his evidence to the Commission reaches is that somebody from the HSU would get back to him.

[58] He has not provided evidence that upon his nephew providing the termination letter for consideration by the HSU, he understood his claim would be filed. There are many potential reasons why his claim might not be filed following the conversation of 25 February 2021.

[59] Mr Neal has not provided any evidence of efforts made by him to contact the HSU following the email of 26 February 2021. The HSU records, I accept, are well-kept, and if Mr Neal had contacted the HSU to inquire as to the status of his potential application, I expect it would have been included in the witness evidence. I am satisfied Mr Neal did not undertake any further inquiry as to his potential application.

[60] I am not satisfied that the HSU made any firm commitment to Mr Neal on or before 26 February 2021 that it would make an application for him, noting he was unfinancial at the time. The commitment made was that an Industrial Officer would get back to him.

[61] In McConnell v. A and P M Fornataro, 7 the majority of the Full Bench of FWA adopted the following approach:

“...a distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant. The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

Error by an applicant's representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted...”

[62] Deputy President Saunders noted in Walton v DS Opco Pty Ltd (trading as Harris Scarfe): 8

“[12] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. However, as the Full Bench explained in Long v Keolis Downer, “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by.” [references omitted].

[63] I do not consider the period in time in the matter before me to be an extended period of time, however I note that Mr Neal did not initiate communication with the HSU relevant to bringing his application. It was again, Mr Gallagher who contacted Mr Neal to inquire if he wished to bring an application.

[64] Having satisfied myself that Mr Neal did not provide clear instruction to the HSU to bring a claim for unfair dismissal, and did not follow up the HSU after 26 February 2021, I am not satisfied that there was representative error which would provide an acceptable explanation for the delay in filing the application.

[65] I do not consider Mr Neal’s explanation for the delay in bringing his application to be an acceptable and reasonable explanation for the whole of the delay. This is a factor which weighs against exercising the discretion to grant an extension.

Subsection 394(3)(b) – whether the person first became aware of the dismissal after it had taken effect

[66] Mr Neal became aware of the dismissal immediately as it occurred. Accordingly, this is a neutral factor when considering whether to exercise the discretion to grant an extension.

Subsection 394(3)(c) – any action taken by the person to dispute the dismissal

[67] I accept in his discussions with Ms Morgan, Mr Neal expressed an interest in disputing the dismissal, although I have found that he did not give clear instructions to the HSU to do so. Mr Neal’s nephew provided to the HSU the termination letter in order for advice to be provided. The action taken by Mr Neal was within the statutory time limit.

[68] This is a factor which weighs in favour of the exercise of the discretion to grant an extension.

Subsection 394(3)(d) – prejudice to the employer

[69] The delay of two days will not cause any prejudice to the Respondent other than its costs, if any, relating to its objection to the extension of time application. The Respondent has not demonstrated that any other prejudice will be suffered by it as a result of the application being filed late that would not have occurred had the application been filed on time.

[70] This is a neutral factor when considering whether to exercise the discretion to grant an extension.

Subsection 394(3)(e) – the merits of the application

[71] In the matter of Kornicki v Telstra-Network Technology Group 9 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 lodgment. 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.”

[72] After considering the material filed by the parties in relation to the substantive application (the Form F2 application and the Form F3 Employer Response), it is clear that there are some factual disputes between the parties and it is not apparent that the application is without merit or that merit is anything other than a neutral consideration.

Subsection 394(3)(f) – fairness as between the person and other persons in a similar position

[73] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd:¹⁰

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[74] Similar cases, in which there is no clear account of the delay or demonstration of the exceptional circumstances, have not favoured the exercise of the discretion to extend time.¹¹ Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.

[75] I am not satisfied that the issue of fairness as between Mr Neal and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral factor when considering the discretion to grant an extension.

Conclusion

[76] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting consideration of whether I should exercise my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by Mr Neal.

[77] Although I have sympathy for Mr Neal and his ability to prosecute his application where he may not have available to him at all times credit on his phone, I consider that it would have been available for Mr Neal to make use of some form of communication (including other’s phones or email) to have provided instructions to the HSU to lodge his application within the time limit. The circumstances were not, in my evaluative assessment, out of the ordinary course, unusual, special or uncommon.

[78] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive application for an unfair dismissal remedy is dismissed.

[79] I order that the application be dismissed.

COMMISSIONER

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 1   Fair Work Act 2009 (Cth) s.394(2); see for example Grant Reeve v Monadelphous Engineering Associates Pty Ltd [2018] FWC 2219 at [17]; Brian Shipp v Svitzer Australia Pty Ltd T/A Svitzer Australasia [2014] FWC 7862 at [16]; Robert Gordon v Uniting Communities [2014] FWC 6220 at [17].

 2   [2019] FWC 2181.

3 [2011] FWAFB 975.

4 [2018] FWCFB 901.

5 (2010) 197 IR 403 at [16]-[18].

6 [2018] FWCFB 901 at [38].

 7   [2011] FWAFB 466.

 8   [2020] FWC 3031 at [12].

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

10 [2016] FWCFB 6963 at [41].

¹¹ See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O’Connor T/A Hair Republic [2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.