Mr Wayne Sutherland v Lendlease Services Pty Ltd

[2020] FWC 4246

[2020] FWC 4246

FAIR WORK COMMISSION

DECISION

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

Mr Wayne Sutherland
v
Lendlease Services Pty Ltd
(U2020/9906)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 27 AUGUST 2020

Application for an unfair dismissal remedy - application made outside of the time prescribed in s.394(2) – consideration whether to allow a further period within which application should be made – whether there are exceptional circumstances – satisfied there are exceptional circumstances – discretion exercised to allow a further period to make application

[1] Mr Wayne Sutherland (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). He commenced employment with Lendlease Services Pty Ltd (Respondent) on or about 19 June 2017 as a communications technician and then a meter technician.

[2] The Applicant was dismissed by the Respondent with immediate effect on 29 June 2020. The reason given by the Respondent for the decision to terminate the Applicant’s employment was Serious Misconduct. On 29 June 2020 the Applicant instructed the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to file an unfair dismissal application in the Commission on his behalf.

[3] The application lodged in the Commission was time stamped 12:10am on 21 July 2020. 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 20 July 2020. The application was therefore lodged 10 minutes after that period had elapsed. The Applicant asks the Commission to allow a further period for the application to be made under s.394(3). Although formally raising the jurisdictional objection in its employer response form F3, the Respondent made no submission and it neither opposes nor consents to the application by the Applicant that he be allowed a further period.

[4] 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

[5] 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 or reasons for delay might fall 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 the following matters as an explanation or reasons for the delay in lodging the application. Prior to his dismissal, the CEPU had acted as the Applicant’s support person throughout the investigation into the alleged misconduct and had provided the Applicant advice and advocacy in respect of the termination of his employment. The Applicant submits he was entitled to believe that the CEPU would file his unfair dismissal application within the required time. The Applicant relies on a statement made by Ms Lee Archer, Industrial Officer with the CEPU who lodged his application which discloses the following. At the time of attempting to lodge the application, Ms Archer was staying at a hotel in a regional area. Ms Archer prepared, finalised and signed the unfair dismissal application on 20 July 2020. Ms Archer then sent an email to the Commission registry enclosing the unfair dismissal application at 4:30pm. After Ms Archer sent the email, she closed her laptop and starting using her iPad. While using the iPad she experienced technological difficulties connecting to the Wi-Fi. At 11:40 pm Ms Archer opened her laptop and found the emails sitting in her outbox. She tried to send them again but the internet connection continued to drop in and out. After multiple attempts to send the email, the application was successfully sent at 12:10am on 21 July 2020.

[11] The Applicant submits that the CEPU’s error in filing the unfair dismissal application 10 minutes late ought not be visited upon the Applicant. The Applicant submits that the circumstances are uncommon, unusual, special or out of the ordinary course. It says the Commission has previously found that it is abnormal for a representative who is an officer of a union to act negligently by failing to file an application within the statutory timeframe following clear instructions from their client and thus found that such a delay justified allowing a further period. 4 The Applicant instructed the CEPU to file an unfair dismissal application in the Commission on the same day that he was dismissed.

[12] I am satisfied that the Applicant has provided an acceptable explanation for the delay. An Applicant should be entitled to believe that their representative will file an application within the required timeframe. But for the technological difficulties experience by Ms Archer in filing the application, the application would otherwise have been lodged within the time prescribed. That there is an acceptable explanation for the delay is a matter that weighs in the Applicant’s favour.

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. That this is so might normally weigh against the Applicant because she had the benefit of the full 21-day period to lodge an application. However, given the circumstances described in my discussion of the reasons for the delay, I do not consider this factor to weigh against the Applicant in this case.

Action taken to dispute the dismissal

[14] The Applicant submits he took all necessary steps to dispute the dismissal. The Applicant submits that his conduct leading up to the dismissal including seeking union representation from the CEPU, being proactive in his instructions to the CEPU and actively engaging in the investigation process put the Respondent on notice that the Applicant disputed the dismissal. The Applicant submits that this should weigh in favour of granting the application. There is no evidence that beyond giving instructions to the CEPU, the Applicant took any step to dispute his dismissal. While the absence of such steps might usually weigh against an applicant, in light of the circumstances described earlier surrounding the reasons for the delay, I do not consider that such absence weighs against the Applicant in this case.

Prejudice to the employer

[15] There is no prejudice asserted nor am I able identify any prejudice that would accrue to the Respondent. The application was lodged 10 minutes after the 21-day time period had elapsed. A short delay in the middle of the night will visit no prejudice on the Respondent. By itself the absence of prejudice would not warrant a conclusion that there are exceptional circumstances nor provided a proper foundation to grant of extension of time under s.394(3) of the Act. However, the absence of prejudice does favour the Applicant, and to which I attribute some weight .

Merits of the application

[16] I am required 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 forms F2 and F3 filed in the Commission. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s.396(a) makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. Nonetheless an assessment of the merits is required. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[17] The Applicant contends that the dismissal was unfair for the following reasons:

•  there was no valid reason for the dismissal;

•  the Applicant was not provided a fair and reasonable opportunity to address concerns raised;

•  there was a lack or fair and proper process in dealing with the allegations;

•  the dismissal was a disproportionate given the Applicants previously unblemished service; and

•  the Respondent was aware employment opportunities would be limited for the Applicant due to COVID-19.

[18] The Respondent contests all of the matters raised by the Applicant above aside from the Applicant’s assertion that the Respondent was aware of the limited employment opportunities due to the COVID-19 pandemic the Applicant would have if he was dismissed.

[19] As the facts of the matter are contested and minimal evidentiary material has been adduced at this stage of the application, no findings of fact are able to be made. The merits of the application are unclear and I consider this factor to be neutral.

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.

[21] The Applicant draws the Commission’s attention to the existence of another similar application lodged 13 minutes before the Applicant’s. This application was made by another employee of the Respondent who was dismissed at the same time and was bringing his application on similar grounds. If an extension of time is not granted to the Applicant, then an application that was substantially similar filed 13 minutes earlier will have their application determined by the Commission and the Applicant’s will not. The Applicant submits that refusing his application in these circumstances is unfair.

[22] The Applicant further submits that there are a significant amount of cases where a further period has been granted by the Commission on the basis of representative error. 5 I accept these contentions and the consideration weighs in favour of the Applicant.

Conclusion

[23] The delay has been explained, there is an absence of prejudice and the fairness consideration also weighs in the Applicant’s favour. The other considerations do not weigh against the Applicant. When each of the matters set out in s.394(3), in the context of this case, are considered and weighed as well as examining those matters individually and collectively, I am satisfied that there are exceptional circumstances.

[24] Because I am satisfied that there are exceptional circumstances, I will exercise my discretion to allow an extension of time and allow a further period under s.394(3). There is no reason to not so do. In the circumstances of this case, injustice would be visited on the Applicant if an extension of time were refused.

Order

[25] Pursuant to s. 394(3) of the Act I order:

a. that a further period within which the Applicant may lodge an application under s. 394 (2) be allowed; and

b. the further period is until 21 July 2020.

DEPUTY PRESIDENT

Determined on the papers

Printed by authority of the Commonwealth Government Printer

<PR721780>

 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   Mr Matthew Boakes v St Johns Community Care Limited [2020] FWC 2837 at [32].

 5   Mr Matthew Boakes v St Johns Community Care Limited [2020] FWC 2837 at [43].