Peter Truong v Brendma (Australia) Pty Ltd T/A BMA

[2018] FWC 7867

[2018] FWC 7867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Truong
v
Brendma (Australia) Pty Ltd T/A BMA
(U2018/11113)

COMMISSIONER JOHNS SYDNEY, 24 DECEMBER 2018

Application for relief from unfair dismissal – whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Peter Truong (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 29 October 2018, that being 54 days after his employment was terminated by Brendma (Australia) Pty Ltd (Respondent) on 5 September 2018 and, consequently, 33 days after the 21 day time limit provided for in the FW Act. To be within time the application should have been lodged on or before 26 September 2018.

[3] When the Applicant filed his application he conceded that it was late. He explained the delay as follows:

“The only reason I am lodging this claim is because I have seen my job advertised under a different title on Seek on 26 October 2018. I was made redundant only to find out that the company is hiring someone else to do my job. I really think that is very unfair and hurtful and after reading all the information about redundancies I feel that my previous employer has not legally gone about my redundancy in the right way.”

The jurisdictional objection

[4] On 31 October 2018 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.

[5] On 27 November 2018 Deputy President Dean wrote to the Applicant seeking an explanation for the delay.

[6] On 4 December 2018 the Applicant sent a letter to the Commission in the following terms,

“I am writing to seek an extension on my application, the reason for the delay in lodging the application was due to my position being advertised online.

I believe that my termination is unfair since I heard Mark over the phone saying that he no longer needs my services and to get rid of me. Within 24 hours from over hearing Mark on the phone I was told the next day that I was no longer needed and that I was to finish up on the same day that I was advised about the redundancy. There was no support or notice from the time I heard Mark. Then to find out that my position has been retitled and advertised on Seek.

At the time I asked the branch manager why I was being made redundant and I was told that Mark has already made his mind up and there was no changing it. I left that day with no formal letter regarding the redundancy.

I had been a loyal employee of Brendma for 6 years and for Mark to just decide one day to cease my employment for no given reason. I was also part of workplace bullying and never spoke up about this matter due to the fear of losing my job. I feel like I have been treated unfairly for this redundancy and wish to take this further.

Thank you for taking the time to read and consider my request.”

[7] The matter was then allocated to me and on 6 December 2018 I issued Directions for the parties to file and serve any material they sought to rely upon and invited them to address each subsection in section 394(3) of the FW Act. Neither party filed additional material.

[8] The matter was listed for hearing on 14 December 2018. At the hearing the Applicant represented himself. The Respondent was represented by its Managing Director, Mark Jeries.

[9] In accordance with a request I made of the Applicant during the hearing, following the same, the Applicant provided the Commission with a copy of the advertisement he saw on Seek.

Legislative scheme

[10] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

[11] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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. 4

Facts leading up to and relating to the dismissal

[12] Based on the material filed in the matter and the evidence received on 14 December 2018 I make the following findings of fact:

a) The Applicant commenced employment with the Respondent on 20 August 2018.

b) The Applicant was paid $29 per hour and worked 80 hours per fortnight.

c) On Friday, 26 October 2018 the Applicant saw on Seek a job that he thought was his former job. The Respondent contends the advertisement was made in error.

d) The following Monday, 29 October 2018, the Applicant lodged the present application.

Consideration of s.394 criteria

Paragraph 394(3)(a) - The reason for the delay

[13] It is undisputable that there were 54 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission (i.e. it was 33 days late).

[14] In essence the Applicant says the reason for the delay was that he initially thought the dismissal was a genuine redundancy, hence he did not challenge it. However, he says that on Friday, 26 October 2018 he noticed a job on Seek that he considers was his former role. He then lodged the present application the following Monday.

[15] The reason advanced by the Applicant for the delay in filing his unfair dismissal application is therefore entirely related to the advertised position. The Commission, as presently constituted, accepts that, at the time he saw the advertised position, the Applicant thought it was his position being advertised. It is a genuine belief held by him and, obviously, he could not have held that view until he saw the advertisement on 26 October 2018. He then acted promptly in filing the present application. This is a reasonable explanation for the delay.

[16] Therefore this factor weighs in favour of granting the Applicant a further period to make his application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[17] It is uncontested that the Applicant first became aware of the dismissal on 5 September 2018. However, he did not become aware of the advertised position (that he considers is his former position until 26 October 2018).

[18] Therefore this factor is a neutral consideration when considering whether to grant the Applicant a further period to make his application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[19] Within 1 business day of seeing the advertised position the Applicant lodged the present application.

[20] The action taken by the Applicant weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[21] The Respondent did not assert any exceptional prejudice.

[22] The prejudice asserted by the Respondent weighs is a neutral consideration in relation to granting the Applicant a further period to make his application.

Paragraph 394(3)(e) - The merits of the application

[23] In the matter of Telstra-Network Technology Group v Kornicki 5 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 6

[24] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[25] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[26] The substantive factual contest between the Applicant and the Respondent is whether the Applicant’s position was made redundant. This is not factual dispute that can be resolved at a jurisdictional hearing.

[27] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[28] If the Applicant can establish to the satisfaction of the Commission that the advertised position is his former position then he may well be able to establish that the termination of his employment was not a genuine redundancy, but rather harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was unfair.

[29] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[30] The Respondent contends other people were made redundant. Because I cannot resolve factual contests at a jurisdictional hearing I will treat this factor as a neutral consideration.

Conclusion

[31] Having considered all of the matters that I am required to consider under section 394(3) of the FW Act, in the exercise of my discretion, for the reasons set out above, on balance, the Commission, as presently constituted, is satisfied that there are exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application). Consequently, I extend the time for the Applicant to lodge his application.

[32] An Order to this effect will be issued with this decision.

[33] The matter will now be returned to the Panel Head for further allocation and programming for hearing.

COMMISSIONER

Appearances:

The Applicant, for himself.

Mr M Jeries, Managing Director, for the Respondent.

Hearing details:

2018.

14 December.

Printed by authority of the Commonwealth Government Printer

<PR703531>

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3 (2011) 203 IR 1.

 4 Ibid [13].

 5   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 6   Ibid.