Nicholas Niarchos v ATF Apas Unit Trust
[2018] FWC 6689
•21 NOVEMBER 2018
| [2018] FWC 6689 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nicholas Niarchos
v
ATF APAS Unit Trust
(U2018/7621)
DEPUTY PRESIDENT DEAN | SYDNEY, 21 NOVEMBER 2018 |
Application for an unfair dismissal remedy.
[1] Mr Nicholas Niarchos was employed by ATF APAS Unit Trust until 2 July 2018.
[2] On 24 July Mr Niarchos lodged an application pursuant to s.394 of the Fair Work Act 2009 claiming that he had been unfairly dismissed by ATF APAS Unit Trust. His application was made one day outside the 21 day period prescribed by s.394(2) of the Act.
[3] Section 394(3) of the Act 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] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Mr Black.
[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where 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.”
[6] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[7] Mr Niarchos noted the following in relation to the late filing of his application:
“In reply to your correspondence stating that my form was lodged 1 day late:
I rang the fair Work Commission, and was informed over the phone that the 21 days started the calendar day following my dismissal.
When I lodged my form in person, I also checked this with the stamping clerk.
It is under these circumstances that I request my case be continued.”
[8] Following confirmation from my associate that his application was one day late, and should have been filed by no later than 23 July 2018, Mr Niarchos submitted that he was advised by Fair Work Commission staff that “my lodgement could take place on 24th July and still fall within prescribed timeframes. This was followed up by checking with the desk clerk at the Brisbane offices of the FWC that my application met all requirements, I was informed that it did”.
[9] ATF APAS Unit Trust submitted that reliance on others is usually insufficient to be found to be exceptional circumstances; the onus rests on an applicant to ensure they pursue their remedy in the time permitted by Parliament. It submitted that ignorance of the law is no excuse. It further submitted that Mr Niarchos has not provided any detail around when he telephoned the Commission, nor has he provided an explanation as to why the application was made at the last minute.
[10] ATF APAS Unit trust further submitted that information about when a time limit expires, as opposed to the length of the time limit, would constitute legal advice.
[11] ATF APAS Unit Trust also pointed to the fact that Mr Niarchos responded “no” in response to the question “Are you making this application within 21 days of your dismissal taking effect?” on his application for unfair dismissal.
[12] Having considered the evidence and submissions, I find that Mr Niarchos’s reasons for the delay in lodging this application weigh against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[13] There is no dispute that Mr Niarchos’s employment ended on 2 July 2018. I find that this this weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
[14] Mr Niarchos did not take any action to dispute his dismissal until the present application was lodged. I find that this weighs against the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
[15] I am not persuaded that granting an extension of time would result in a prejudice to ATF APAS Unit Trust. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of granting an extension of time.
The merits of the application
[16] For the purpose of determining whether to grant an extension of time for Mr Niarchos to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’2
[17] Mr Niarchos states he was unfairly dismissed as the reason for the dismissal noted on his separation certificate, “unsuitability for this type of work” was false, as nothing regarding unsuitability for the work was raised with him during the course of his employment.
[18] ATF APAS Unit Trust stated the reference to unsuitability for this type of work on the separation certificate was an error. It submitted that Mr Niarchos was dismissed for a failure to follow directions. It further submitted that Mr Niarchos, a casual employee, was terminated in accordance with the relevant award.
[19] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[20] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4
[21] I do not consider that there are other relevant persons in a similar position to Mr Niarchos. I therefore find this to be a neutral consideration.
Conclusion
[22] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an extension of time to Mr Niarchos. His circumstances are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
[23] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
N. Niarchos on his own behalf.
J. Mountford for the respondent.
Hearing details:
2018.
Sydney (By telephone):
October, 24.
Printed by authority of the Commonwealth Government Printer
<PR701869>
1 [2011] FWAFB 975.
2 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
3 [2015] FWC 8885.
4 Ibid at [29].
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