Mr William Vasiliadis v The Trustee for the Lawry Operating Trust
[2025] FWC 703
•11 MARCH 2025
| [2025] FWC 703 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr William Vasiliadis
v
The Trustee For The Lawry Operating Trust
(U2025/520)
| COMMISSIONER CONNOLLY | MELBOURNE, 11 MARCH 2025 |
Application for an unfair dismissal remedy – request for an extension of time – application dismissed.
Introduction
Mr William Vasiliadis commenced employment with The Lawry Operating Trust in August 2018. He was employed in the position of a painter.
The reason given by the Respondent for the decision to terminate the Applicant’s employment was serious misconduct, arising from the Applicant painting a heritage wall at the Seafarers Redevelopment on 29 November 2024.
The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). That application was lodged on 14 January 2025.
Application was filed outside the statutory timeframe
Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
The Applicant’s employment was terminated by the Respondent with effect from 13 December 2024.
Based on a termination date taking effect on 13 December 2024, the application for a remedy should have been lodged by no later than 3 January 2025.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 11 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay,
· whether the Applicant first became aware of the dismissal after the date it took effect,
· any action taken by the Applicant to dispute the dismissal,
· prejudice to the Respondent including prejudice caused by the delay,
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
Each of the matters need to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[1]
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 or unprecedented, nor do they need to be very rare.[2] I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.
I now consider these matters in the context of the application.
a) 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 reasons Mr Vasiliadis provided for the delay in filing his application included;
· He was unaware of the 21-day filing requirement until he contacted the Fair Work Commission;
· The impact the nature of the dismissal had on his mental health, and
· The compounding impact of his father’s diagnosis with cancer and the arising necessity to care for his father and family members.
I have considered each of the reasons provided. Regarding the Applicant’s lack of awareness of the 21-day filing requirement, it is well established that ignorance of one’s rights is not usually an acceptable reason for delay. Apart from his submission that he first became aware of the 21-day filing requirement on contacting the FWC and that he filed his application as soon as this was brought to his attention, Mr Vasiliadis has not advanced any further reason as to why his lack of awareness should be considered valid. I do not accept this is the case.
Mr Vasiliadis submits he was also unable to file his application on time because of the impact of his dismissal on his mental health. However, he has not provided any further evidence or material to support this position or support a conclusion that the impact of his dismissal impacted his functional capacity to file his application on time. In this regard, I note it is well established that it is common for people who have lost their job to suffer negative impacts, including stress and anxiety.
In the circumstances of this case, I have also had regard to the evidence that Mr Vasiliadis was able to file his application as soon has he was made aware of the 21-day filing requirement, suggesting minimal impact on his functional capacity.
Finally, while I empathise with the Applicant’s circumstances and the diagnoses of his father’s illness, there is nothing in the evidence presented by Mr Vasiliadis that the situation confronting him is not one commonly confronted by other workers who have also lost their job.
In these circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
b) Whether Applicant first became aware of the dismissal after the date it took effect
Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 13 December 2024 that his employment would end on that day.
In these circumstances, I considered Mr Vasiliadis was made aware of his termination on the day it took effect, I find this factor to be a neutral consideration.
c) Action taken by the Applicant to dispute his dismissal
Turning next to the question of the action taken by the Applicant to dispute his dismissal, the evidence was that the Applicant took steps to contact his union but was advised not to pursue his application so decided to take action himself. That after the busy Christmas period and public holidays he contacted the Fair Work Commission and filed his F2 Application form as soon as possible. I find that this factor weighs in favour of the Applicant.
d) Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.
The Respondent has not made any submissions or engaged with Mr Vasiliadis’s Application.
The Applicant said he does not consider any prejudice arising should his application be granted. In these circumstances, that is a matter that is a neutral consideration.
e) Merits of the Application
As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
It seems to me at least arguable that there is merit with Mr Vasiliadis’s application. His submissions are that he was not made aware of his employer’s concerns with this conduct on 29 November 2024 until 10 December 2024 when he was stood down. He provided an explanation. He disputes the site was compliant with heritage requirements and that he was not provided any opportunity to remediate his action. On this basis, he claims to have been treated unfairly, particularly considering his unblemished 6-year employment history with the Respondent.
The Respondent has not engaged with Mr Vasiliadis’s Application. They have not filed a F3 Employer Response form, did not present at this hearing or make any written submissions for the Commission to consider. In these circumstances, it is difficult to go beyond a consideration of the reasons for termination provided in the termination letter filed by Mr Vasiliadis in his materials – serious misconduct.
Considering these circumstances, I consider this to be a neutral factor.
f) Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like 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.
Mr Vasiliadis did not make any submission on this issue. However, in proceedings he acknowledged that there was nothing distinguishing his case from others in similar positions. I have considered this evidence weighs against a finding of exceptional circumstances.
Conclusion
I have considered all the available evidence as presented in this case and weighed it against the requirement of s.394(3) of the FW Act. On this basis, I am not satisfied that there are exceptional circumstances and, therefore, there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect was separately issued on 12 February 2025.
COMMISSIONER
Appearances:
Mr W Vasiliadis as the Applicant.
Hearing details:
2025.
Melbourne (via videoconference).
12 February.
<PR785110>
[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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