Mr Willie Bara v JBS Australia Pty Limited T/A JBS Australia Pty Limited

[2024] FWC 2428

[2024] FWC 2428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Willie Bara
v

JBS Australia Pty Limited T/A JBS Australia Pty Limited

(U2024/9084)

COMMISSIONER CONNOLLY MELBOURNE, 13 SEPTEMBER 2024

Application for an unfair dismissal remedy – request for an extension of time – application granted

Introduction

1. The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]

1. This decision concerns whether I should exercise my discretion to allow Mr Willie Bara a further period for his unfair dismissal application (Application) to be made against JBS Australia Pty Limited T/A JBS Australia Pty Limited (‘JBS’).

Background

1. Mr Bara has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with JBS. His form F2 unfair dismissal application advised his dismissal took effect on 2 May 2024.

1. The application was lodged on 5 August 2024 and is therefore 74 days out of time.

1. On 13 August 2024, I issued directions and advised that the extension of time issue would be considered at a video hearing on 28 August 2024 (which was later adjourned to 6 September 2024). Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties.

1. On 16 August 2024, the Respondent lodged a form F3 Employer Response which indicated that the dismissal occurred on 2 May 2024 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.

Hearing

1. A hearing was conducted by way of video on 6 September 2024. A video file record of the hearing was kept.

1. Ms Elyane Palmer of the Migrant Workers Centre sought leave to represent the Applicant and Ms Sakrzewski-Hetherington (in house counsel) appeared for the Respondent.

1. Ms Palmer was granted leave to appear on the basis that it would allow the matter to be conducted more efficiently, given the relative complexity of the matter, as per s.596(2)(a) of the Act.

1. A digital court book was compiled from the material that was filed by both parties and distributed prior to the hearing. But for an amendment excising paragraphs [18]-[20] of the Witness Statement of Ms Pauline Rhodes that was agreed by the parties, the entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).

1. In advance of the hearing, Mr Bara’s representatives sought the Commission secure a Solomon Islands Pijin interpreter to assist Mr Bara in providing his evidence to the Commission.  Despite numerous attempts to engage an interpreter, it was not possible to secure one. 

1. The parties were made aware of this and advised that the Commission intended to proceed with the hearing with their assistance, with consideration to Mr Bara’s circumstances.  The parties raised no objection to the matter proceeding on this basis. 

1. At the commencement of proceedings, Ms Palmer identified that one of the Applicant’s witnesses, Solomon Islands Country Liaison Officer Ms Vera Cheffers, had some ability to assist interpreting for Mr Bara.   Ms Palmer also referred to the Judicial Council on Cultural Diversity Recommended National Standards for Working with Interpreters in Courts and Tribunals and sought leave to allow Ms Vera to provide her evidence prior to the Applicant.   Thereafter, assisting Mr Bara with interpretation as necessary.  There being no objections, the hearing proceeded in this way.

The Case for the Applicant

1. Both Ms Vera Cheffers and Mr Bara presented at the hearing and provided sworn statements into evidence before the Commission.  Ms Cheffers provided her evidence first, a summary of which is set out below, relevant to the question of extension of time:

·Ms Cheffers is the Country Liaison Officer (CLO) for the Solomon Islands in the Pacific Australia Labour Mobility (PALM) Scheme.

·She is held this position for approximately 10 months.

·She has not previously been involved in FWC proceedings or otherwise provided support or assistance to PALM scheme workers in relation to FWC proceedings.

·As CLO, her role is to provide support and advice to Solomon Islands PALM Scheme workers.

·On 16 May 2024, she was contacted by Mr Bara seeking assistance to dispute his dismissal from JBS on 2 May 2024.  She advised him to lodge a grievance with the Department of Employment and Workplace Relations (DEWR).

·On 30 May 2024, Mr Bara contacted her and requested support. In response, she lodged a grievance with DEWR on the Applicant’s behalf and sent an email to JBS requesting further information about Mr Bara’s dismissal that received no response. 

·Following a period of overseas travel between 22 June  2024 and 1 July 2024, on 2 July 2024, she sought legal advice, including from the Migrant Workers Centre, on Mr Bara’s behalf as a PALM scheme worker who had been dismissed.  

·On 18 July 2024, the Migrant Workers Centre advised her that they had not been able to find a community legal centre to assist Mr Bara.

·On 19 July 2024, she was advised by the Migrant Workers Centre that Mr Bara could file a second unfair dismissal application and request an extension of time to allow his application to proceed and began assisting him to do so.  

·On 24 July 2024, Mr Bara’s application was complete. Between 24 July 2024 and 4 August 2024, she was significantly busy at work and unable to priorities Mr Bara’s application.  On 5 August 2024, this was no longer the case and she lodged Mr Bara’s application with the Commission.

1. Mr Bara also provided a witness statement and provided sworn evidence at the hearing, with Ms Cheffers interpreting.  A summary of his evidence is as follows:

·He moved to Australia on or around 20 August 2023 to support his family and create means to continue his studies by working as a labourer as part of the PALM program working for JBS.

·He started working for JBS on or around 21 August 2023 as a general labourer in the abattoir.  In April 2024, he was promoted to a knife hand, training to be a butcher.  He was a good worker, with a good work record, minimal absences and no issues.

·He first lived in accommodation rented by JBS. On or around 20 March 2024, he moved into accommodation that he rented for himself with co-workers, including an “Arnold”.

·After work on 13 April 2024, he was involved in attempting to stop an argument between two of his colleagues “Arnold” and “John”.  The argument escalated into a physical altercation when Arnold pushed him.  He then punched Arnold which was out of character from him, and he was very sorry for.

·He has only very limited basic written and spoken English language skills and reads Solomon Islands newspapers.

·Sometime after the incident, he settled his disagreement with Arnold consistent with Solomon Islands culture by paying him $300 compensation to clear the air.  He continued to see Arnold and understood there were no problems between them.

·On 14 April 2024, he was asked to attend a meeting with management at JBS and told to make a statement about what happened the previous day.  He was asked if he wanted a support person present at the meeting, but did not know what this meant and declined.

·At this time, he was not aware of the role of the CLO, and had he known that a culturally suitable support person was available to assist him as a PALM worker, he would have requested this assistance. 

·He was not offered an interpreter for this meeting.  On 18 April 2024, he was given a show cause letter.  This letter was not offered in his language or translated.  He did not know what “show cause” and other expressions in the letter meant. 

·On 22 April 2024, he provided a response to JBS that he prepared with the assistance of his housemates.  His response detailed his apology and regret at what happened.  His response also requested an opportunity to resolve any issues with Arnold by meeting with leaders in a customary way of resolving grievances in Soloman Islands culture. 

·On 2 May 2024, he was provided with a letter of termination because he had breached JBS house rules and did not follow duties in line with company expectations.

·After his dismissal, he began to question why he was dismissed for breaching the JBS House rules when he was not living in a JBS house and had no issues with his work duties.

·On 16 May 2024, he became aware of the CLO role and its support for PALM scheme workers. He contacted Ms Cheffers and asked her what he could do. 

·Ms Cheffers told him he could lodge a grievance with the PALM division of DEWR which she helped him prepare and lodge.

·On 21 May 2024, DEWR emailed him advising that he needed to contact his employer.

·On or about 22 May 2024, he contacted JBS and was told he needed to contact PALM as he was no longer a JBS employee.

·On 23 May 2024, he was told by a friend he could lodge an unfair dismissal application with the FWC and copied the grievance Ms Cheffers had helped him lodge with DEWR into his unfair dismissal application lodged with the FWC.

·On 30 May 2024, he spoke to Ms Cheffers and told her he was fearful and intimidated by the legal process.  She told him she would contact DEWR and JBS on his behalf.

·On 3 June 2024, he was contacted by the FWC and advised there would be a conciliation conference on 27 June 2024 to progress his unfair dismissal application.  He was asked if he needed an interpreter and requested a Solomon Islands Pijin interpreter.  The FWC suggested a PNG Tok Pisin interpreter.

·He struggled to communicate with the FWC staff member and comprehend the process that was occurring.  He did not speak Tok Pisin, but agreed because he was not familiar with these legal processes as they do not exist in Solomon Islands.  He was worried about being able to represent himself and sacred. 

·On 4 June 2024, he contacted the FWC and withdrew his application. 

·Since early June 2024, he has been living rough, travelling between South Australia, Victoria and Queensland without other means to support himself without the assistance of friends. 

·On 20 June 2024, he was contacted by Ms Cheffers and told that DEWR had told her he should pursue his unfair dismissal application with FWC as a successful unfair dismissal application was a prerequisite for DEWR assisting him being redeployed as a PALM scheme worker.

·On the same day, he emailed the FWC and requested to reopen his case. 

·On 21 June 2024, FWC staff emailed him to tell him only a court could set aside his discontinuance and that he should seek legal advice. 

·He did not have money or capacity to get legal advice and was forced to move to find somewhere to live.  He felt his case was hopeless and that there was no way for him to continue.

·Ms Cheffers was overseas until early July 2024, and he was not able to talk to her again till 9 July 2024.  On this day, she told him she was talking to the Migrant Workers Centre and attempting to find a lawyer that could assist him.  On 18 July 2024, Ms Cheffers told him they had not been able to find anyone to help. 

·On 19 July 2024, Ms Cheffers told him the Migrant Workers Centre’s advice was that he could file a new unfair dismissal application and seek an extension of time and that she would assist him in doing this.

·Between 19 and 24 July 2024, he worked with Ms Cheffers on this application and finalised it with her to file with the Commission on 24 July 2024.

·The impact of his dismissal has been severe.  That since being dismissed he has struggled to do anything but focus on his survival needs and had to resort to the assistance of friends.  He has struggled to retain mobile and internet access and being able to communicate or seek assistance. He has been unable to support his family. 

·As a PALM scheme worker if he is unable to secure a job with another PALM employer he will have to leave the country.    

The Case for the Respondent

1. The Respondent relied on its submissions and provided two witness statements from Ms Pauline Rhodes, JBS Victoria State Manger.  Ms Rhodes was not available to give sworn evidence in proceedings.  The Respondent’s position can be summarised below:

·   The Applicant has filed some 74 days outside the required timeframe imposed by s 394(2) of the Act.

·   The Applicant has provided little or no evidence to explain his reasons for the delay, including his language and cultural barriers; personal hardship; along with his fear and concern with FWC process and procedures.

·   That the Applicant has managed to file two competent unfair dismissal applications with the FWC does not support a finding that the difficulties he claims to face with the English language and FWC process are insurmountable.

·   That in his employment declaration the Applicant indicated his capacity the read and write as “average”.

·   That the Applicant has had the support of the PALM scheme CLO in the form of Ms Cheffers.

·   That the Applicant has had access to significant public information as to his avenues of redress and that his claimed ignorance of them, and the required timeframes, are not exceptional circumstances.

·   That the Applicant’s claim of being confused as to what he was told by DEWR, JBS and the FWC does not support a finding of exceptional circumstances.

·   That the Applicant has not been able to explain long periods of the delay.

·   That the Applicant appears to have simply left his matter in the hands of others, including Ms Cheffers, without follow up, and that there no exceptional circumstances to grant an extension of time.

·   That granting the extension would be a prejudice to the Respondent in circumstances where there has been a considerable passage of time between the incident and the second application that would make it difficult for the Respondent to present its case.

·   And finally, that the Applicant’s case is without merit in circumstances in which he was dismissed for a serious physical altercation.

Applicable Law

1. Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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.”

1. The test of “exceptional circumstances” establishes a “high hurdle” for an Applicant.[3]

1. I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

…

[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.”

Consideration

Paragraph 394(3)(a) - reason for the delay

1. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] A dismissal can be communicated orally.[6]

1. The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[7] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[8] the Full Bench explained the correct approach by reference to the following example:

“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

1. An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[9]

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

1. Mr Bara submits there are a number of reasons that have led to the delay in filing his application.  First of these are the barriers he has faced as PALM scheme worker indigenous to the Solomon Islands, whose language is Solomon Islands Pijin with limited proficiency in English.  Second, that cultural differences exist between the workplace relations systems in Australia and the Solomon Islands where institutions like the Fair Work Commission do not exist. 

1. It is not disputed Mr Bara is a PALM scheme worker from the Solomon Islands and that there are cultural differences between the workplace relations system in Australia and the Solomon Islands.  Mr Bara’s evidence to the Commission is that:[10]

“54. I struggled to effectively communicate with the Fair Work Commission staff, and to comprehend the legal processes. 

55. I found the process overwhelming and doubted my ability to represent myself properly.

56. I was scared that because I was having difficulty communicating and worried, I wouldn’t be able to represent myself properly, and there could be a bad outcome for my case, and it would make my situation worse.

5.7 In the Solomon Islands, government services like the Fair Work Commission are non-existent.”

1. I accept this evidence, and further that cultural factors have contributed to the delay in filing his application.

1. Considering Mr Bara’s English proficiency, the Respondent contends that the evidence filed by the Applicant do not support a finding that these challenges were insurmountable to his application being filed on time.  Furthermore, they submit that when completing his workplace induction Mr Bara completed an English literacy and numeracy self-assessment, rating his reading and writing skills as average, indicating he reads newspapers.[11] Further, that since 16 May 2024, he has had the support of the PALM scheme CLO.

1. In evidence, Mr Bara clarified he read Solomon Islands newspapers.  His representative further identified it is not clear from the assessment provided by the Respondent[12] that Mr Bara has self-assessed his English reading and writing skills or reading and writing skills in general. 

1. Mr Bara gave oral evidence in proceedings.  On this basis, and considering these submissions and my observations, it is clear to me that Mr Bara has challenges communicating in English and that this circumstance was a factor that has contributed to the delay in filing his application.

1. Thirdly, Mr Bara submits that since his termination he has been given confusing advice from JBS, DEWR, and the FWC that has contributed to his delay.  This includes being told by DEWR he had to contact his employer before they could assist him in the PALM scheme. Being told by JBS that he had to contact the PALM scheme.  Finally, being told by the FWC that only a court could set aside his discontinuance to his first unfair dismissal application filed within time on 23 May 2024. 

1. The fact that Mr Bara was provided with differing advice from DEWR and JBS as to who he needed to contact as a PALM scheme worker in disputing his dismissal between 16 and 22 May 2024 is not disputed.  The Respondent submits that only once after this time, did the Applicant contact DEWR and that this communication does not appear to be about contesting his dismissal but seeking assistance and redeployment under the PALM scheme.  Furthermore, that the Applicant’s ignorance of the avenues for redress and applicable timeframes is not an exceptional circumstance.

1. I have accepted that the cultural and language factors facing Mr Bara have contributed to the delay in filing his application.  The evidence in this case is that Mr Bara (or Ms Cheffers on his behalf) contacted JBS and DEWR before filing and withdrawing his first application, and afterwards.  The evidence also dictates that he was told different and conflicting things from each organisation.

1. I have accepted Mr Bara has been challenged by his lack of understanding and comprehension of Australian and FWC process and procedures.  On this basis, I accept that the different and conflicting advice received by Mr Bara is another factor that has contributed to the delay in his application.

1. An additional factor Mr Bara submits that has contributed to his delay is the fact that since his dismissal and resultant loss of income, he has suffered considerable financial stress and hardship.  So much so that he has been without a home and had to resort to relying on friends across the country for accommodation.  That he has had limited funds, often had to focus on his immediate survival needs and struggled to maintain phone and internet credit. 

1. The Respondent submits the fact that Mr Bara manged to file two competent unfair dismissal applications, contacted DEWR and the PALM scheme CLO numerous times during the period of delay suggests otherwise. 

1. Mr Bara’s evidence is that he has suffered significant financial stress and hardship since his dismissal.  He also submits, that as a PALM scheme worker if he is unable to get his job back or secure employment with another employer in the scheme he will be forced to leave Australia.  That these challenges made it difficult for him to focus on his unfair dismissal application during the period of delay.  

1. I accept this evidence.  Furthermore, I am satisfied these hardships are another factor that have contributed to Mr Bara’s delay in filing his application. 

1. The Respondent submits Mr Bara has not provided any explanation for his inaction during significant periods of what is a lengthy 74-day period of delay.  They submit that it appears Mr Bara has simply left his application with Ms Cheffers, without follow up and that this should be weighed against the Applicant in line with the authority in Clarke v Ringwood Private Hospital.[13]

1. I accept that Mr Bara signed his second application on 24 July 2024 and left it with Ms Cheffers to file on the understanding that she would do so. In explaining why it was not until 5 August 2024 that Mr Bara’s application was filed, Ms Cheffers’ evidence is that she was overwhelmed with other priorities and did not prioritise Mr Bara’s application. 

1. I accept Ms Cheffer’s evidence.  However, it does not necessarily follow that I accept Mr Bara has not provided reasons for the delay that warrant the granting of an extension of time. 

1. 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. Each circumstance of the ending of a job and its impact will be different and need to be considered on its own merits.  In the present case, Mr Bara has presented a number of factors that I have accepted have contributed to the reasons for his delay.

1. Viewed separately, all these factors may not necessarily be uncommon. When considered together, along with the compounding significance of the Applicant’s termination as a PALM scheme worker, however, I am satisfied this combination of circumstances are exceptional and not commonly confronted by employees facing dismissal.

1. I have also had regard to the length of the delay. While a significant period, I have considered Mr Bara initially took steps to dispute his dismissal and filed an unfair dismissal application within time that he decided to discontinue due to the factors I have identified above. 

1. On this basis, ultimately, I have am satisfied Mr Bara was confronted with a combination of factors that when considered together were exceptional, rare and uncommon. Therefore, I am satisfied the Applicant has provided a credible reason for the delay in filing the application and that this factor weighs in favour of granting an extension of time.

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

1. Mr Bara was aware of the dismissal when it was clearly communicated to him on 2 May 2024, the day he was dismissed.  It is clear, on this basis, that Mr Bara had the benefit of the full 21-day period.  This factor weighs against the granting of an extension of time. 

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

1. Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[14]

1. The evidence before me states that Mr Bara took steps to contest this dismissal from 16 May 2024, when he contacted Ms Cheffers.  He lodged an initial unfair dismissal application on 23 May 2024, within time.  He contacted DEWR, the FWC, and engaged with Ms Cheffers.  The evidence which, I have accepted, is that he only withdrew this competent application due to the combination of exceptional circumstances he was confronted with.  Once it was made clear to him through his engagement with Ms Cheffers and the Migrant Workers Centre that could make another application for unfair dismissal and seek an extension of time, he actively sought to do so with the necessary assistance.

1. Considering this evidence, I am satisfied this factor weighs in favour of the Applicant being granted an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

1. Prejudice to the employer will weigh against granting an extension of time.[15] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[16]

1. A long delay gives rise “to a general presumption of prejudice”.[17]

1. The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[18]

1. The Respondent submits the long delay in this matter gives rise to a prejudice to the employer being able to present its substantive case.  Mr Bara’s representative disputes this and contends that as a large employer, the Respondent will be able to adequately draw on contemporaneous evidence and material to support its position should the matter proceed.

1. The delay in this matter is self-evident.  However, I am not convinced that the employer has presented any substantive evidence to demonstrate prejudice. In fact, its supplementary materials filed, presenting graphic evidence of the consequences of Mr Bara’s actions leading to his termination support the Applicant’s position.

1. Accordingly, I consider prejudice to the Respondent to be a neutral factor

Paragraph 394(3)(e) - merits of the application

1. The merits of an application are relevant; however, the assessment of the merits for the present purposes is limited to, in effect, a preliminary consideration.[19]  Further, the primary consideration is whether the Applicant has an arguable case.[20]

1. In Telstra-Network Technology Group v Kornicki,[21] the Full Bench of the Australian Industrial Relations 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 Full Bench stated:[22]

“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 Applicant to establish that the substantive application was not without merit.”

1. The substantive merits of this application have not been fully tested and as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission “should not embark on a detailed consideration of the substantive case” for determining whether to grant an extension of time to an Applicant to lodge their application. [23]

1. The factual context and merits of the present application are significantly contested.  It is the Respondent’s position that the Applicant was dismissed for engaging in a violent physical altercation with a co-worker. 

1. The Applicant’s position is that this is not the case.  That he was provoked and attempted to prevent violence amongst his house mates.  That he has engaged in and sought opportunity for culturally appropriate reconciliation, which was not provided, along with other obligations the Respondent has failed to provide as a PALM scheme employer.  Further, that the “valid conduct” relied on by the Respondent to be breach of company house rules cannot apply because the incident occurred out of hours in a private residence. 

1. These contentions would need to be further scrutinised in this case, including under cross-examination, if an extension of time was granted to the application to proceed.

1. Accordingly, as there is insufficient evidence before me to make an assessment, I have regarded the merits as a neutral factor.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

1. The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[24] considered this criterion and said:

“[41] 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 Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

1. I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor, it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

1. Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.

1. An Order[25] reflecting this decision will be issued.

COMMISSIONER

Appearances:

Ms E Palmer on behalf of the Applicant.
Ms B Sakrzewski-Hetherington on behalf of the Respondent.

Hearing details:

Melbourne (videoconference).
6 September.
2024.

[1] Section 394(2)(a) of the Act.  Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the 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] Section 394(3) of the Act.

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

[4] [2011] FWAFB 975.

[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49].

[6] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

[8] [2016] FWCFB 349.

[9] [2018] FWCFB 3288 at [35]-[45].

[10] Applicant’s Witness Statement at [54]-[57], Court Book page 34.

[11] Supplementary Witness Statement of Ms Pauline Rhodes at [5]-[6], Court Book page 362 and Annexure 2.

[12] Ibid, Court Book page 372.

[13] (1997) 74 IR 413 at [418].

[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[15] Ibid.

[16] Ibid.

[17] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.

[18] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16].

[19] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14].

[20] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32]-[34].

[21] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[22] Ibid.

[23] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899 at [38].

[24] [2016] FWCFB 6963.

[25] PR779219.

Printed by authority of the Commonwealth Government Printer

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