Mr Scott Coward v David Allan Gray
[2025] FWC 95
•10 JANUARY 2025
| [2025] FWC 95 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Scott Coward
v
David Allan Gray
(U2024/12647)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 10 JANUARY 2025 |
Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances – application dismissed
Introduction
On 23 October 2024 Mr. Scott Coward (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act). The respondent to the proceeding was David Gray trading as Gray’s Plaster and Paint (Respondent).
The Applicant was engaged by the Respondent as an apprentice plasterer on or about 16 July 2021 and he was covered by the Building and Construction General On-site Award 2020. It was not in issue that the Applicant was a person protected from unfair dismissal under s.382 of the Act.
It was common ground that the Applicant’s dismissal took effect on 27 September 2024, that 21-day period expired on 18 October 2024 and that the application was out of time by five days. The Respondent objected to the application on the basis that it had been made outside the 21-day time period prescribed by s.394(2) and maintained that there were no exceptional circumstances to warrant an extension of time under s.394(3). The Applicant argued that there were exceptional circumstances justifying an extension of time.
This decision deals only with the question of whether there are exceptional circumstances which may justify an extension of time for the filing of the application.
Exceptional circumstances
In order to determine whether exceptional circumstances exist to justify an extension of time I am required to take into account the matters listed in s.394(3). The ultimate conclusion as to exceptional circumstances requires a consideration of all of the matters in s.394(3) and the allocation of appropriate weight to each of them.[1] I deal with each of those matters, in turn, below.
Section 394(3)(a) - Reason for the delay
The delay is the period after the prescribed 21-day period for lodging an application; it does not include the period from the date the dismissal took effect.[2] However, circumstances arising prior to the delay may be relevant to the reason for the delay.[3] An applicant does not need to provide an explanation for the entire period of the delay. The absence of an explanation for any part of the delay will usually count against an applicant. On the other hand, a credible explanation for the entirety of the delay will generally weigh in an applicant’s favour.
The Applicant’s explanation for the delay was that when he attempted to file his application, the Commission’s website was not functioning properly and he was unable to submit the form. He said that he Commission’s website was ‘down for a few days.’ He said he had taken a screenshot to show that the Commission’s website was not working but had changed phones and no longer had the screenshot. The Applicant also said that he did not have network access for over a week and had ‘a bit of trouble with wi-fi’ in the area he was living in. In his oral evidence, he said the wi-fi issue was ‘a 2-day problem’.
The Applicant’s evidence was also that he was unaware of the 21-day time limit for applications and did not attempt to file the application with the Commission until sometime after the limitation period had passed. He said that when he became aware of the time limit, he acted as quickly as possible to file the application.
The Respondent submitted that there was no evidence to show that the Applicant had made any efforts to file his application by any alternative means when he was confronted with technical difficulties. When it was put to the Applicant in cross-examination that he could have attended a local library or gone to a friend’s house to file the application he said he did not have a reason as to why he did not do so.
On the Applicant’s own evidence, he did not take any steps to file the application within the 21-day time period because he was unaware that the limitation applied. Unfamiliarity with unfair dismissal procedures is commonplace. Ignorance of the statutory time limit is not an exceptional circumstance.[4] The Applicant’s testimony about the technical issues lacked detail and there was no supporting evidence about these issues. Even accepting the Applicant’s evidence about the technical difficulties he said he had experienced, there was no evidence of any other steps being taken by the Applicant to progress the making of an application in the face of those difficulties. Nor did the Applicant contend that he was impeded from filing an application by any other factors either during the 21-day time period, or during the period of the delay.
I do not consider that the reasons provided for the delay support a conclusion that exceptional circumstances exist.
Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect
The Applicant was told by text and then telephone on 27 September 2024 that his employment was being brought to an end with immediate effect on that day. I am satisfied that the Applicant was at all times aware that the last day of his employment was 27 September 2024 and that he did not first become aware of his dismissal after it had taken effect. The Applicant had the benefit of the full 21-day period to file an application. This does not support a conclusion that there are exceptional circumstances.
Section 394(3)(c) – Any action taken by the person to dispute the dismissal
The Applicant responded to the dismissal by text message on the same day of his dismissal to say that he was being dismissed because of a work-related injury which prevented him from working. The Applicant accepted that he returned the company vehicle as requested shortly after his termination but did not dispute the dismissal at that time. He also accepted that aside from a request for a separation certificate, he did not have any further contact with the Respondent prior to the filing of the application. The Applicant did not advise the Respondent that he would be challenging his dismissal in the Commission or elsewhere until the application was made. The Applicant’s text message response was a limited form of challenge to the dismissal and to that limited extent, weighs slightly in the Applicant’s favour in the assessment of exceptional circumstances.
Section 394(3)(d) - Prejudice to the employer, (including prejudice caused by the delay)
Mere absence of prejudice does not establish that there are exceptional circumstances. A relevant prejudice is one that the Respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. I am unable to identify any prejudice of that kind. I regard the issue of prejudice as a neutral consideration.
Section 394(3)(e) - Merits of the application
It is unnecessary and undesirable to embark on a detailed assessment of the merits here.[5] Key facts are contested. The Applicant argued that he was unfairly dismissed because he was incapacitated by a work-related injury which caused severe pain made his attendance at work impossible. He was dismissed, in the first instance, by text message followed shortly after by a telephone call.
The Respondent disputed that the Applicant was dismissed because of his back injury. They said the Applicant’s condition was degenerative and not work-related. They contended that they accommodated the Applicant’s condition over an extended period by providing light duties and allowing him to attend medical appointments during work time. The Respondent said they paid him additional personal leave and that his personal leave balance was negative at the time of his termination. They said the Applicant’s attendance record was poor and that he regularly failed to attend work without notice or to provide documentation supporting his absences.
In the absence of a full hearing on the evidence I am unable to reach a firm view as to the merits of the application. I regard the merits of the claim as a neutral consideration in the overall assessment.
Section 394(3)(e) - Fairness as between the person and other persons in a similar position
The parties did not identify any persons in a similar position to the Applicant. This is a neutral factor here.
Exceptional Circumstances
Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[6] Exceptional circumstances may 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 can be considered exceptional.[7]
Having considered the various matters referred to in s.394(3) and weighed them in the balance, I am not satisfied that there are exceptional circumstances in this case. I am therefore unable to extend time for the application to be made.
The application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr S Coward, the Applicant
Ms R Gray, for the Respondent
Hearing details:
23 December 2024 and 9 January 2025 by Microsoft Teams Video
[1] See Stogiannidis v. Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39] and [40] in relation to similar provisions under Part 3-1. See also Reeves v. Monadelphous Engineering Associates Pty Ltd[2018] FWC 2219 at [20].
[2] Long v Keolis Downer[2018] FWCFB 4109 at [4].
[3] Shaw v. ANZ Banking Group Ltd [2015] FWCFB 287 at [12].
[4] Nulty v. Blue Star Group Pty Ltd[2011] FWAFB 975
[5] See Kyvelos v Champion Socks[2000] AIRC 540. See also Nulty v. Blue Star Group Pty Ltd[2011] FWAFB 975 at [36] in relation to similar provisions in Part 3-1.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[7] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.
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