Mr Sebastien Domange v Kimbo Consultancy t/a Sun Stud Pty Ltd

[2020] FWC 3503

[2020] FWC 3503

FAIR WORK COMMISSION

DECISION

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

Mr Sebastien Domange
v
Kimbo Consultancy t/a Sun Stud Pty Ltd
(U2020/8747)

DEPUTY PRESIDENT MANSINI MELBOURNE, 6 JULY 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Mr Sebastien Domange (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant’s employment with Sun Stud Pty Ltd (Respondent) was terminated with effect from 3 June 2020. The unfair dismissal application was lodged on 25 June 2020.

[3] Section 394(2) of the Act states that 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 pursuant to s 394(3). The period of 21 days ended at midnight on 24 June 2020. The application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] A witness statement was filed by the Applicant and an outline of submissions was filed by the Respondent. The matter was listed for conference/hearing on 3 July 2020. The Respondent declined to participate in a conference in an attempt to resolve the matter and the parties consented to the Commission proceeding to determine the question of jurisdiction by way of hearing. The Applicant did not oppose the Respondent’s request for permission to be represented, which was granted having regard to the matters at s.596 of the Act.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, 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. 1 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.2

[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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;

(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 similar position.

[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

Reason for the delay

[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3

[10] The Applicant cited several matters as reasons for the delay in lodging the application. His evidence was that he waited until the very last minute to file the application because he had concerns for his safety, and the prospect of not being able to collect his belongings, if he submitted his application. The process of removing his belongings upon termination took longer than anticipated. Then, when he attempted to file the application on the evening of 24 June 2020, the Applicant experienced internet connectivity issues and was not successful in filing his application until after midnight (the application was filed at 12.28am on 25 June 2020).

[11] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. It was the Applicant’s choice to personally attend to the collection of his belongings from the workplace prior to filing, which could have been effected via other means if there was a genuine concern about safety. There is nothing unusual or exceptional about a temporary internet connectivity issue. It was the Applicant’s choice to wait until the last day to try to lodge the application. Had the Applicant attended to the filing of his application earlier, then it could have been filed using other methods (ie post) and a temporary internet connectivity issue would have been overcome.

[12] The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[13] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[14] I am required to taken into account any action to dispute the dismissal. The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future. 4

[15] The Applicant gave evidence that the Respondent had told him that the allegations of his gross misconduct were supported by video footage. The Applicant’s evidence was that he made several requests to view the video footage, including on one occasion by email sent to human resources after the final termination decision. He said his requests to see the footage were “ignored”.

[16] The Respondent contended in its submissions that the Applicant had not taken any steps to dispute the dismissal.

[17] By his request made after the dismissal, I consider the Applicant took some action to place the Respondent on notice that he did not accept and intended to contest the dismissal. I consider this to weigh only slightly in favour of a finding of exceptional circumstances.

Prejudice to the employer

[18] The Respondent properly accepted that no particular prejudice would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

Merits of the application

[19] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[20] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[21] The time limit that applies to the exercise of a person’s right to bring an unfair dismissal application reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[22] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances when considered individually or together. The absence of an acceptable or reasonable explanation for the delay weighs strongly against a finding of exceptional circumstances, whereas the action taken weighs only slightly in favour and the other factors are neutral. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720723>

Appearances:

Mr S.Domange, Applicant, on his own behalf
Mr T.Traill, of Employsure Pty Ltd for the Respondent.

Hearing details:

2020
3 July.

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 4   Wilson v Woolworths [2010] FWA 2480 at [19]-[21].