Mr Wayne Trieve v Undamine Industries Unit Trust Pty Ltd

[2017] FWC 4609

[2017] FWC 4609

FAIR WORK COMMISSION

DECISION

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

Mr Wayne Trieve
v
Undamine Industries Unit Trust Pty Ltd
(U2017/5130)

COMMISSIONER RIORDAN SYDNEY, 7 SEPTEMBER 2017

Application for an unfair dismissal remedy - extension of time.

[1] Mr Wayne Trieve (the Applicant) was employed as a casual employee by Undamine Industries (the Respondent) from 25 November 2015 until his dismissal on 21 April 2017. The Applicant lodged an application for an unfair dismissal remedy on 15 May 2017. The application was lodged 3 days outside the statutory time limit.

[2] The Fair Work Act, 2009 (the Act) provides that an application for an unfair dismissal remedy made pursuant to section 394 of the Act must be lodged within 21 days after the dismissal took effect. 1 The Fair Work Commission (Commission) can extend the time for the lodgement of an unfair dismissal application if it is satisfied that there are exceptional circumstances.

[3] In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.394(3) of the Act. Section 394(3) provides:

(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] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group 2where the Full Bench said:

“[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.”

Section 394(3)(a) reason for delay

[5] The Applicant submitted that, due to a shortfall in financial resources, he was unable to obtain legal advice in relation to his application. Further, that during this time, he had been hospitalised for a short period and that his time was consumed with caring responsibilities for both his sick mother and his young son. Mr Trieve’s time was also taken up in performing on-going house repairs as a result of damage caused by the recent cyclone. The Applicant also claimed to be waiting for his separation certificate from the Respondent and that he was computer illiterate.

[6] The Respondent acknowledged that the Applicant had been in hospital but submitted that the Applicant still had 18 days after his release from hospital to submit his application. In Cheval Properties Pty Ltd v Smithers a Full Bench of Fair Work Australia determined that an Applicant must have a bona fide reason for the delay in filing an application for the entire 21 days in order to satisfy the exceptional circumstances requirement. 3

[7] I have taken these issues into account.

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

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4

[9] It is uncontested that the Applicant first became aware of the dismissal on 21 April 2017.

[10] I have taken this into account.

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

[11] It was acknowledged that the Applicant did make an attempt to get legal advice on 4 May 2017 but that there had been no contact with the Respondent challenging the decision to terminate his employment.

[12] I have taken this into account.

Section 394(3)(d) prejudice to the employer

[13] I am satisfied that there would be no greater prejudice to the Respondent caused by the Applicant’s application being listed now than there would have been had the application been lodged in time.

[14] I am of the view that prejudice to the Respondent is a neutral consideration.

Section 394(3)(e) the merits of the application

[15] In the matter of Kornicki v Telstra-Network Technology Group 5the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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 application to establish that the substantive application was not without merit.” 6

[16] For the purposes of determining whether to grant an extension of time the Commission “should not embark on a detailed consideration of the substantive case.” 7

[17] The Applicant claims that he was dismissed because he had to take sick leave and carers leave to look after his ill mother. Mr Trieve submitted doctors’ certificates verifying a number of these absences. Based on the limited material before me, I am prepared to accept that the Applicant may have a difficult but arguable case that his dismissal was harsh. However, I note that the Applicant had rejected an offer of redeployment by the Respondent and that he had failed to attend for any of the casual shifts offered by the Respondent over a 3-4 week period.

[18] I have taken this into account.

Conclusion

[19] I have taken into account all of the submissions of the parties. I am not satisfied that the reasons provided by the Applicant for his late application, whilst unfortunate and understandable, establish an exceptional circumstance. The Applicant was undoubtedly busy and preoccupied during the statutory timeframe, however, the Applicant displayed a lack of urgency to his application. In many respects, the application appears to have been an afterthought.
[20] The Applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[21] The application for extension of time is refused and the substantive application for an unfair dismissal remedy is dismissed.

[22] I so Order.

COMMISSIONER

 1   Section 394(2)(a)FW Act. Note that the 21 days for the lodgement does not include the date that the dismissal took effect by reason of operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6-where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   [2011] FWAFB 975

 3 (2010) 197 IR 403

 4   Burns v Aboriginal Legal Service of Western Australia (inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C (Print T3496) at [24]

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

 6   Ibid.

 7   Kyvelos v Champion Socks Pty ltd, Print T2421 [14]

Printed by authority of the Commonwealth Government Printer

<Price code A, PR595848>