Otto Fogarassy v L+O Employment Company Pty Ltd

[2020] FWC 2829

[2020] FWC 2829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Otto Fogarassy
v
L+O Employment Company Pty Ltd
(U2020/6667)

DEPUTY PRESIDENT COLMAN MELBOURNE, 1 JUNE 2020

Unfair dismissal application filed out of time – application dismissed

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

[2] The Applicant’s employment with L+O Employment Company Pty Ltd (Respondent) was terminated with effect from 21 April 2020. The unfair dismissal application was lodged on 14 May 2020. 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 12 May 2020. The application was therefore filed 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.

[3] 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’. The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) ([2010] FWAFB 975), where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.

[4] 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.

[5] 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.

Reason for the delay

[6] 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.

[7] The Applicant cited several matters as reasons for the delay in lodging his application. He said that following his dismissal, he tried unsuccessfully to obtain more information from the company about why he had been dismissed, and that he did not initially want to have to bring an unfair dismissal against his former employer. On 8 May 2020, the Applicant’s computer stopped working and he had to send it away to be repaired, and it was only returned on 13 May 2020. The Applicant said that he then had to get the computer reprogrammed, and also had difficulty transferring money for the unfair dismissal application fee. He said that he was only able to lodge the application on 14 May 2020. The Applicant also said that he is not very familiar with computers and was unaware of the 21 day period for lodging applications.

[8] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. It was the Applicant’s choice not to lodge his application in the period between 21 April and 7 May 2020. His computer was working at this time. Even after his computer stopped working, it is not clear why the Applicant did not use some other device to lodge the application online or by email. The Applicant could also have contacted the registry of the Commission and asked for assistance. Had he done so, he could also have learned of the 21 day period for lodgement, which is also explained on the Commission’s website.

[9] In my view, the matters raised by the Applicant as reasons for the delay did not prevent him from lodging the application on time, and I do not consider them to be exceptional. This weighs against an extension of time.

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

[10] 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 is a neutral consideration.

Action taken to dispute the dismissal

[11] The Applicant submitted that in the two weeks following his dismissal, he corresponded with the company seeking information about his dismissal and his entitlements. However, I do not consider this to constitute action to dispute the dismissal. This circumstance does not weigh in favour of an extension of time.

Prejudice to the employer

[12] 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 granting an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight.

Merits of the application

[13] 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 outlined in the materials that have been filed and I do not repeat them here. Briefly, the Applicant contends that he was dismissed suddenly and summarily after more than 12 years of loyal service as an electrician because of a safety issue, but that no details of the breach were provided to him. The Applicant says that he did not receive anything in writing from the Respondent about his dismissal or any evidence about the alleged safety breach, prior to bringing his unfair dismissal application.

[14] The Respondent contends that the Applicant was dismissed after installing a general power point in a bathroom in a manner that was contrary to legal requirements, and that the installation was a major safety breach and could have caused a serious risk to the health and safety of the occupants of the home. It says that the Applicant had previously been disciplined for unsafe work practices in the past and had been given a final warning on 7 March 2019.

[15] The merits of the application turn on questions of evidence that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed. Much would depend on findings of disputed fact. For example, the Applicant says that there was no bath in the room at the time he installed the power point and that he did not know where the bath would be put, whereas the Respondent says that it should have been obvious from the plumbing where the bath would be installed. Further, the Applicant disputes the Respondent’s position that his prior warning was related to safety.

[16] Based on the limited material before me, I am not able to make any firm assessment of the merits. I consider that the Applicant has at least an arguable case that he was unfairly dismissed, and the Respondent a prima facie defence. I do not consider the merits to tell for or against an extension of time. It is a neutral consideration.

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

[17] Applications to extend time generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Fogarassy and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[18] 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.

[19] 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

Appearances:

Mr O Fogarassy for himself
Ms C Goudkamp for the Respondent

Hearing details:

2020
Melbourne (by telephone)
Friday 28 May

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