Norman Wong v Cubic Transportation Systems (Australia) Pty Ltd T/A Cubic Transportation Systems (Australia) Pty Ltd

[2021] FWC 6684

[2021] FWC 6684

FAIR WORK COMMISSION

DECISION

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

Norman Wong
v
Cubic Transportation Systems (Australia) Pty Ltd T/A Cubic Transportation Systems (Australia) Pty Ltd
(U2021/10660)

DEPUTY PRESIDENT CROSS SYDNEY, 23 DECEMBER 2021

Application for an unfair dismissal remedy

Introduction

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

[2] The Applicant’s employment with Cubic Transportation Systems (Australia) Pty Ltd (the Respondent) was terminated with effect from 25 August 2021. The unfair dismissal application (the Application) was lodged on 22 November 2021.

[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 Fair Work Commission (the Commission) allows pursuant to s 394(3). The period of 21 days ended at midnight on 15 September 2021. The application was therefore filed 68 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). The Respondent opposes this request.

[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.

Previous decision

[8] Unusually, the termination of the Applicant’s employment had been the subject of a previous decision of the Commission (the Previous Decision). 3 In that decision, Commissioner Bissett dismissed a previous application made by telephone by the Applicant because he had subsequently failed to file a completed Form F2. That dismissal was pursuant to s.587(1)(a) of the Act.

[9] Upon the Applicant filing his Form F2 on 22 November 2021, six days after the Previous Decision, that application was allocated to the Commission as currently constituted for determination of whether to grant the Applicant an extension of time in which to validly lodge the Application.

[10] In the Previous Decision, a number of undisputed facts relevant to the question of extension of time in which to validly lodge the Application were outlined. Those facts were as follows:

[1] On 13 September 2021 Mr Norman Wong made an application by telephone to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] On 14 September 2021, the Commission sent correspondence to Mr Wong’s email address providing 14 days from the date of making the telephone application to complete a Form F2 - Unfair Dismissal Application (Form F2) in addition to paying the filing fee or completing a waiver form. A waiver form was provided with this correspondence. Mr Wong was advised that failure to return a completed application and provide payment or a waiver form may result in his application being dismissed.

[3] On 28 September 2021 Mr Wong contacted the Commission by telephone. Mr Wong enquired if the Commission had received his waiver. No completed Form F2 or waiver form had been received by the Commission. On the same day, Mr Wong lodged a completed waiver form by email.

[4] On 29 September 2021 the Commission attempted to contact Mr Wong on his nominated telephone number as no completed Form F2 application had been filed. Mr Wong did not answer the call. A voicemail message was left requesting Mr Wong contact the Commission.

[5] On 1 October 2021 the Commission attempted to contact Mr Wong on his nominated telephone number as no completed Form F2 had been filed. Mr Wong did not answer the call. A voicemail message was left requesting Mr Wong contact the Commission. On the same day the Commission sent Mr Wong an email requesting he return a completed Form F2.

[11] As Mr Wong continued to fail to file the Form F2, his telephone application was dismissed.

Reason for the delay

[12] 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. 4

[13] The Applicant cited several matters as reasons for the delay in lodging the Application. Those matters were:

(a) That he had lodged his original application, being the application dismissed in the Previous Decision, within the 21 days of being terminated;

(b) He had tried to process the Application online but was unsuccessful due to “not owning word on my phone and laptop and (being) unable to complete it”;

(c) As he is unvaccinated for COVID 19, he was only allowed to travel within 5 km from his house, but Office Works at Fairy Meadow was nearly 10 km away from where he lives, and he did not want to risk a large Covid 19 fine;

(d) He had changed his mobile phone number and did not receive some or all of the telephone calls and the letter from the Commission referred to in the Previous Decision; and

(e) That the COVID 19 restrictions and Government Health Orders were extraordinary and exceptional circumstances.

[14] I do not consider the Applicant’s reasons, individually or together, to be acceptable or reasonable explanations for the delay. It is clear that the Applicant was aware that he needed to lodge his application within 21 days of his dismissal because he filed an application by telephone on 13 September 2021.

[15] While the Applicant alleges computer difficulties relating to the failure to originally file the Form F2, I note that the Applicant suffered no such difficulties in lodging a completed fee waiver form by email on 28 September 2021. I conclude that the Form F2 could have been completed with similar ease, and note that the Applicant did not respond to an email from the Commission requesting that the Form F2 be returned.

[16] If the applicant failed to receive communications from the Commission because he had changed his telephone number, the cause of such failure rests solely with the Applicant and his failure to advise the Commission of his changed details.

[17] Regarding the alleged travel difficulties arising from COVID 19 restrictions, I note that residents of New South Wales, regardless of vaccination status or Local Government Area residency, have been able to travel beyond the 5km limit from their home since 11 October 2021. Further, the Office Works at Fairy Meadow is within the Applicant’s Local Government Area.

[18] The absence of an acceptable explanation weighs against the Applicant and a conclusion that there are exceptional circumstances.

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

[19] 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 Application. This is a neutral consideration.

Action taken to dispute the dismissal

[20] This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal because the Applicant did not file a Form F2 until 22 November 2021. I consider this factor is a neutral consideration.

Prejudice to the employer

The Respondent did not suggest any prejudice would be caused to it in the event the Commission extended the time for the Application to be made. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted, however the mere absence of prejudice is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is also a neutral consideration.

Merits of the application

[21] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[22] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Conclusion

[23] 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 CROSS

Appearances:

Mr N Wong, on his own behalf.
Ms A McCulloch, for the Respondent.

Hearing details:

2021.
December 21.
Sydney (via videoconference)

Printed by authority of the Commonwealth Government Printer

<PR737126>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Norman Wong v Cubic Transportation Systems (Australia) Pty Ltd T/A Cubic Transportation Systems (Australia) Pty Ltd

(U2021/8200), [2021] FWC 6352.

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]