Ozcar Cullen v Estimating & Civils Australia Pty Ltd
[2024] FWC 1379
•27 MAY 2024
| [2024] FWC 1379 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ozcar Cullen
v
Estimating & Civils Australia Pty Ltd
(U2024/3791)
| COMMISSIONER LIM | PERTH, 27 MAY 2024 |
Application for an unfair dismissal remedy – Extension of time – Exceptional circumstances found
Introduction
This decision concerns Mr Ozcar Cullen’s application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).
Mr Cullen was employed as a Labourer with Estimating & Civils Australia Pty Ltd (Respondent). He commenced his employment on 12 January 2022 and was dismissed on 29 February 2024. Mr Cullen’s lawyers, MKI Legal, lodged his unfair dismissal application on 3 April 2024.
Section 394(2) of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect; or, pursuant to s 394(2)(b), within such further period as the Commission allows.
In Mr Cullen’s case, the period of 21 days ended at midnight on 21 March 2024. His application is 13 days out of time.
Mr Cullen seeks a further period for his application to be made under s 394(3). The Respondent neither consents nor objects to this application.
The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) must be taken into account.
Following a case management conference on 7 May 2024, materials were filed by both parties. The parties subsequently informed my chambers that they were of the view that the matter could be dealt with on the papers. I agreed with this assessment.
Mr Cullen is represented by Mr Al Asadi of MKI Legal in this matter. The Respondent is represented by Mr Ian Bennett of Sparke Helmore. I am satisfied that it is appropriate to grant permission to both parties to be represented.
Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that the circumstances are exceptional, and accordingly grant Mr Cullen an extension of time to file his application until 3 April 2024.
The detailed reasons for my decision are outlined below.
Should an extension of time be granted?
Under s 394(2) and (3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.
It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. 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 are of no particular significance, when taken together can be considered exceptional.[2]
In determining whether there are exceptional circumstances, I must take into account the criteria in s 394(3):
(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.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
2.1 Reason for the delay
For Mr Cullen’s application to have been made within 21 days after the dismissal took effect, Mr Cullen needed to lodge it by midnight on 21 March 2024. The delay is the period commencing immediately after that time until 3 April 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]
Mr Cullen’s and Mr Abdul Al Asadi’s unchallenged evidence is as follows:
(a)Mr Cullen is 18 years old.
(b)Within a week of the Respondent dismissing Mr Cullen, he called MKI Legal to book an appointment. On 14 March 2024, Mr Cullen and his grandmother Ms Irene Cullen met with MKI Legal lawyer Mr Al Asadi.
(c)On 18 March 2024, Mr Cullen advised Ms Cullen that he wanted to proceed with making an unfair dismissal application. Ms Cullen called Mr Al Asadi to this effect and to pay relevant legal fees.
(d)On 19 March 2024, Mr Cullen received a draft of his unfair dismissal application from Mr Al Asadi. Mr Cullen communicated some amendments and sent them back to Mr Al Asadi on 20 March 2024.
(e)Mr Cullen and Mr Al Asadi spoke on the phone on 20 March 2024, where Mr Al Asadi informed Mr Cullen that his unfair dismissal application would be lodged that day.
(f)On 20 March 2024, Mr Al Asadi sent an email addressed to the Commission Registry with Mr Cullen’s unfair dismissal application attached for filing (Filing Email). However, the Filing Email was mistakenly sent to Mr Cullen, instead of the Commission Registry.
(g)Mr Al Asadi’s evidence is that this was human error and a momentary lapse of concentration. Mr Al Asadi had filed seven dismissal-related applications during the same period of time, and mistakenly believed that he had seen a confirmation email from the Commission for Mr Cullen’s application.
(h)Mr Cullen did not see Mr Al Asadi’s Filing Email. Mr Cullen did not have any reason to believe that his application had not been lodged properly.
(i)On 3 April 2024, Mr Al Asadi realised that he had not received a notice of listing or correspondence from the Commission for Mr Cullen’s application. Mr Al Asadi checked the Filing Email and realised that he had sent it to the wrong email address. Mr Al Asadi immediately forwarded the Filing Email to the correct Registry email address at 9:11am on 3 April 2024. Mr Al Asadi did not make any changes to Mr Cullen’s application.
Mr Cullen submits that the delay in filing his application is entirely due to representative error.
The Full Bench of the Commission considered representative error in the context of an extension of time application in Robinson v Interstate Transport Pty Ltd,[7] where they stated at [25] that representative error may be a sufficient reason to extend the time for an application. However, a distinction must be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless, and delay caused by the applicant’s conduct; the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for any filing delay.
I accept the unchallenged evidence from Mr Cullen and Mr Al Asadi. I am satisfied that Mr Cullen communicated clear instructions to his representative to lodge his unfair dismissal application and that after his conversation with Mr Al Asadi on 20 March 2024 he had no reason to suspect that Mr Al Asadi would not file his application properly.
I find that there is satisfactory reason for the delay. This is a factor that weighs in favour of a finding of exceptional circumstances.
2.2 Whether the person first became aware of the dismissal after it had taken effect.
Mr Cullen became aware of his dismissal on the day it occurred. This is a factor that weighs against a finding of exceptional circumstances.
2.3 Action taken to dispute the dismissal
Mr Cullen acted within the 21-day timeframe to meet with a legal representative, give instructions, and approve a drafted unfair dismissal application. I find that Mr Cullen took the correct steps to dispute his dismissal. This is a factor that weighs in favour of a finding of exceptional circumstances.
2.4 Prejudice to the employer (including prejudice caused by the delay)
Mr Cullen submits that the delay in filing his application is minimal and does not cause the Respondent any prejudice. The Respondent accepts that the potential prejudice that it may experience is not significant, however, there is still prejudice given the statutory prescribed time frame; the expectation of any claim to be brought expediently; and it is evidently in the Respondent’s interests for the Commission to dispense with Mr Cullen’s application. ‘
I find given the short delay, there is minimal prejudice to the Respondent. I find that this is a neutral factor in this case.
2.5 Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[8] Further, the primary consideration is whether Mr Cullen has an arguable case.[9]
Mr Cullen’s submission is that he has an arguable case as he is alleging that he was not guilty of misconduct, let alone serious misconduct, as alleged by the Respondent. Further, he says that the Respondent did not afford him procedural fairness in his termination. The Respondent submits that it had a valid and reasonable basis for dismissing Mr Cullen, and that the process undertaken was fair.
It is not possible (nor required) to make a full assessment on the merits of the matter without a fair hearing of evidence. I find that this is a neutral factor in assessing whether there are exceptional circumstances.
2.6 Fairness as between the Applicant and other persons in a similar position
Mr Cullen submits that there are cases that are similar to his matter where an extension of time has been granted due to representative error.[10]
Each matter must turn on its own facts. I find that this is a neutral factor in assessing whether there are exceptional circumstances.
Conclusion
The Respondent and Mr Bennett did not challenge Mr Cullen’s reason for why his application was filed late and made appropriate concessions in the determination of this matter. This is a credit to the Respondent and Mr Bennett.
Having considered all the circumstances of this matter and the factors in s 394(3), I am satisfied that there are exceptional circumstances due to Mr Cullen being blameless in why his application was filed out of time.
Accordingly, I extend the period for the application to be made to 3 April 2024. An order will be issued to this effect.
COMMISSIONER
Hearing details:
Decision on the papers
[1] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] (2011) 211 IR 347; [2011] FWAFB 2728.
[8] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[9] See: Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[10] See: Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; Jake Hernen v Adelaide Integrated Precast Pty Ltd[2024] FWC 95; Riggs v Longbow Group Pty Ltd[2020] FWC 5479.
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