Nicholas Haritsos v H & D Retail Pty Ltd T/A Toymate

[2020] FWC 2850

[2020] FWC 2850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Haritsos
v
H & D Retail Pty Ltd T/A Toymate
(U2020/6651)

DEPUTY PRESIDENT DEAN SYDNEY, 3 JUNE 2020

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Nicholas Haritsos (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.

[2] The Applicant’s employment with H & D Retail Pty Ltd T/A Toymate (the Respondent) was terminated with effect from 1 April 2020. The unfair dismissal application was lodged on 14 May 2020.

[3] 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 22 April 2020. The application was therefore filed 22 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).

[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 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

[5] 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.

[6] 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.

[7] 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

[8] 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

[9] The reason cited by the Applicant for the delay in lodging the application was that he believed he had made an application within the time limit, however he later discovered that he had made an application for legal advice under the Commission’s Workplace Advice Service (WAS). In this regard he said:

“… it was lodged late as I believed I had already lodged an application on the 15th April (14 days after dismissal). I had actually just lodged an application for advice - not an actual unfair dismissal. Hence I was in contact again with the workplace advice service in regards to my application who noted I had not actually lodged an application on the 13th May.

[10] I do not consider this explanation to be an acceptable explanation for the delay. Before making an online application for advice under the WAS, and at multiple times during the completion of the online application, the following statement is made:

“Using this service is entirely separate from making a formal application to the Commission. You only have 21 days from the date of dismissal to lodge a formal application for unfair dismissal …”

[11] Further, the first question asked in the online application is whether the applicant wishes to either make a request for legal advice or lodge an application with the Commission. If the second option is chosen (ie. lodge an application), an information box appears which confirms that the WAS can only help with questions about dismissal, explains where to go to make a formal application, and confirms the 21 day time limit.

[12] It is abundantly clear that making a request for advice under the WAS is not making a formal application for unfair dismissal. Accordingly, I do not consider that this amounts to an acceptable explanation for the delay.

[13] The Applicant also claimed that he was mentally and emotionally affected and had a ‘tough few weeks’ as a result of the dismissal. Whilst I accept the shock and trauma the Applicant may have suffered following his dismissal, they are common experiences for people who have been dismissed from their employment and do not amount to an exceptional circumstance.

[14] The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[15] 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 factor weighs against the Applicant because he had the benefit of the full 21-day period to lodge an application.

Action taken to dispute the dismissal

[16] The Applicant did not take any action to dispute his dismissal until this application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[17] 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 the grant of 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.

Merits of the application

[18] The Act requires me to take into account the merits of the application in considering whether to extend time. There is very minimal material as to the merits available to me and accordingly I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[19] 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. I have not been made aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[20] 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.

DEPUTY PRESIDENT

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 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].