Mr Wayne Morris v Fifo Capital Australia Pty Ltd
[2025] FWC 583
•26 FEBRUARY 2025
| [2025] FWC 583 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Wayne Morris
v
Fifo Capital Australia Pty Ltd
(U2025/757)
| COMMISSIONER CONNOLLY | MELBOURNE, 26 FEBRUARY 2025 |
Application for an unfair dismissal remedy - request for an extension of time - application dismissed.
This decision concerns an application by Mr Wayne Morris (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act)
The Applicant’s employment with Fifo Capital Australia Pty Ltd (Respondent) was terminated with effect on 4 December 2024. The unfair dismissal application was lodged on 23 January 2025.
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 21st day falls on 25 December 2024. As the 21st day falls on a public holiday, which is also followed by another public holiday, the 21st day falls on 27 December 2024. The application was therefore filed 27 days 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 and also raises an objection that the application should be dismissed on the account of the application not being covered by an award or agreement and the Applicant earning above the high-income threshold.
A Hearing was held on 17 February 2025 to deal with the extension of time issue only.
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]
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.
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.
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
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]
The Applicant cited several matters as reasons for the delay in lodging the application. These reasons include that there was confusion arising from his dismissal, the nature of its communication and whether it applied to his directorship, employment or both. Also, the Applicant posits that the Respondent intentionally delayed its responses and payments to him to frustrate his application being made within time. In support of this position, he has provided evidence indicating he remains a director of the Respondent and correspondence with the Respondent seeking his notice and entitlements.
In proceedings, Mr Morris also referred to his caring responsibilities for his daughter and their impact on his capacity. Additionally, the Applicant claims it took him some weeks to discover he had been treated differently to others in a similar position, who left the business around the same time. The Applicant also asserted that his caring responsibilities counted against his employment continuing.
I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. In proceedings, Mr Morris accepted that he was made aware his employment was being terminated on 4 December 2024. I accept the Respondent’s acknowledgement of an oversight in the removal of Mr Morris as a director of the company, supports a conclusion of uncertainty about that relationship coming to an end. The evidence in this case is that there was no confusion Mr Morris ended being an employee of the Respondent on 4 December 2024. The termination letter, and the fact Mr Morris raised his concerns about the allegation made against him that “led to his exit from the business” supports this conclusion.
I accept Mr Morris’s caring responsibilities would have had an impact on him during this period. However, there is no evidence before me to conclude these responsibilities had any impact on his capacity to file his application. Nor have I been presented with evidence Mr Morris’s caring responsibilities were considered against him by his employer or that the Respondent intentionally delayed responding to him. The Respondent rejects these submissions, and they are not supported by any objective evidence.
As to the time taken for Mr Morris to discover what had occurred to other employees of the Respondent in a similar position regarding allegations of misconduct, I accept this to be the case. However, in circumstances where I have found Mr Morris was made aware of his termination on 4 December 2024 and has not presented any other reasonable explanation as to why his application was not filed with the Commission until 23 January 2025, I do not accept this factor supports a conclusion of there being a valid reason for the delay.
Mr Morris’s evidence is that it was not until 31 December 2024, 4 days outside the required filing period, that he first wrote to the Respondent raising his concerns. This fact, in addition to those set above, weigh against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
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
Mr Morris’s undisputed evidence is that he disputed his dismissal by raising his concerns with the Respondent in writing. The Respondent acknowledges prior to Mr Morris’ termination it had initiated a misconduct investigation from towards the end of September 2024 in which Mr Morris was engaged. Mr Morris also submits, and it was not disputed, that he exchanged text messages about his dismissal disputing its terms and seeking payment of his notice and other monies.
However, it was not until 31 December 2024 that Mr Morris first wrote to the Respondent, 4 days outside the 21-day requirement. It was not until 23 January 2025 that he filed his application with the Commission seeking to dispute his dismissal. I do not consider these steps initiated after the 21-day period weigh in favour of the Applicant. This conclusion weighs against there being exceptional circumstances.
Prejudice to the employer
Mr Morris submits there is no prejudice arising for the Respondent should his application be permitted to proceed. The Respondent submits that allowing the application to proceed despite its objections that it is out of time and that Mr Morris is not an employee protected from unfair dismissal gives rise to a prejudice against the employer. I have considered these submissions, and I cannot identify any prejudice that 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 an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances and consider this a neutral factor.
Merits of the application
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.
In reaching this conclusion, I have regard to the Respondent’s additional objection that Mr Morris is a person paid above the high-income threshold and not protected from unfair dismissal, not being covered by an award or enterprise agreement. While I have not made a finding in relation this matter, it is a further question that would need to be determined had this application been granted.
Fairness as between the person and other persons in a similar position
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. In the present case, a significant reason Mr Morris has made this application and believes his termination is unfair is because he was treated differently from others who were also the part of investigations into the disclosure or otherwise of commissions. He submits in each of these instances, the persons in similar positions to his were not dismissed for serious misconduct or had payments withheld.
Mr Morris has had both his notice period withheld and been denied payments arising from a separate arrangement for the transfer of shares, that was conditional on the employment relationship being maintained. The Respondent does not contest Mr Morris was not their only employee and shareholder who was involved in an investigation concerning commissions. Nor do they contest that some of these persons are no longer employed by the Respondent.
It is the Respondent’s position that Mr Morris was the only person in their employ who was the CEO at the time of the alleged misconduct. Furthermore, that there were no other persons terminated arising from their investigation into commissions. Mr Morris accepts this to be the case. However, he submits his circumstances were like these others’ but that they retained their entitlement to notice period payments, despite the investigation concluding after they had resigned, but before the end of their period of notice.
On this basis, he considers he has been unfairly treated in comparison to similar persons in a similar position. His position is essentially that either these other people should have had their payments withdrawn, or that he should have them paid to him as requested.
Mr Morris accepts he was the CEO of the Respondent at the time of the alleged misconduct. Had this not been the case, I would be satisfied this factor weighs in favour of the granting of and extension of time.
However, as the only CEO of the Respondent and its ultimate responsible officer I accept the evidence does not support a conclusion he was being treated unfairly when compared to other persons in similar position. I do not accept the other persons he refers to were in a similar position to him, not being the CEO and not being dismissed.
This being the case, and considering neither party brought any other relevant matter or decision of the Commission concerning this matter to my attention, I conclude this to be a neutral consideration.
Conclusion
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. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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.
COMMISSIONER
Appearances:
Mr W Morris as the Applicant.
Mr P James on behalf of the Applicant.
Hearing details:
2025.
Melbourne (via videoconference).
17 February.
[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].
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