Piotr Wawrzyczny v Lipman Pty. Ltd

Case •

[2024] FWC 3439

•

11 DECEMBER 2024
[2024] FWC 3439

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Piotr Wawrzyczny
v

Lipman Pty. Ltd.

(U2024/12304)

COMMISSIONER CRAWFORD

SYDNEY, 11 DECEMBER 2024

Unfair dismissal application filed out of time – one day late – alleged technical issues – CEO contacted to dispute dismissal – exceptional circumstances – extension of time granted

Background

  1. Lipman Pty Ltd. (Lipman) operates a commercial building business in New South Wales and Queensland. Piotr Wawrzyczny commenced employment with Lipman as Building Services Manager on 20 April 2022. Mr Wawrzyczny was dismissed on 23 September 2024 due to alleged performance issues. Mr Wawrzyczny filed an unfair dismissal application with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 15 October 2024, one day after the 21-day filing period ended on 14 October 2024.[1] That means Mr Wawrzyczny needs an extension of time to file his application. This decision concerns whether an extension of time should be granted.

  1. I issued directions for the filing of material and listed a determinative conference/hearing for 5 December 2024 via video. Mr Wawrzyczny represented himself at the determinative conference/hearing. I granted permission for Lipman to be represented on the basis that would enable the matter to be dealt with more efficiently. This was not opposed by Mr Wawrzyczny. Luke Scandrett from Pinsent Masons represented Lipman. The parties agreed with my provisional view that the proceeding should be conducted as a less formal determinative conference.    

Material filed

Mr Wawrzyczny 

  1. Mr Wawrzyczny provided a witness statement dated 22 November 2024. Mr Wawrzyczny provided evidence that he attended a brief meeting with his manager, Phillip Tondl, on 23 September 2024 and was handed a letter at the end of the meeting. Mr Wawrzyczny says he understood from the meeting that his employment would be ending on 30 September 2024. Mr Wawrzyczny says when he received a text message from Mr Tondl on 26 September 2024 asking him to return Lipman’s equipment he had a closer read of the letter and realised his dismissal had taken effect on 23 September 2024. Mr Wawrzyczny accepts he was aware of the 21-day filing period and knew that period was due to lapse on 14 October 2024. 

  1. Mr Wawrzyczny gave evidence that he was initially advised by the Commission and other lawyers that he was not eligible to make an unfair dismissal application because his earnings with Lipman exceeded the high-income threshold of $175,000. Mr Wawrzyczny explained that he went on a holiday with his son from 7 to 13 October 2024. When Mr Wawrzyczny returned from the holiday, he conducted his own research and identified that he could still be eligible to make an unfair dismissal application if his employment with Lipman was covered by a modern award or enterprise agreement.[2] Mr Wawrzyczny encountered technical issues with the Commission’s online lodgment system on 14 October 2024 and says he was unable to complete the application. Mr Wawrzyczny provided email evidence to show that he registered to use the Commission’s online lodgment system at 1:26pm on 14 October 2024. Mr Wawrzyczny says he was not able to successfully complete the online form until 15 October 2024 and provided evidence of further issues he experienced on 15 October 2024. Mr Wawrzyczny says he spoke with Commission staff members on 14 and 15 October 2024 about the technological issues.

  1. Mr Wawrzyczny also provided evidence that he exchanged text messages with Rob MacKee (CEO) on 14 October 2024 to try and resolve his concerns with the dismissal. This led to a meeting on 15 October 2024. No resolution was reached.

  1. I marked Mr Wawrzyczny’s statement Exhibit A1. Mr Wawrzyczny was not required for cross-examination.

  1. Mr Wawrzyczny provided oral submissions at the end of the determinative conference.                 

Lipman

  1. Lipman relied on a witness statement from Emma Liston (Human Resources Manager) dated 29 November 2024. Ms Liston provided evidence about the meeting held between Mr Tondl and Mr Wawrzyczny on 23 September 2024. Ms Liston’s evidence suggests there was no basis for Mr Wawrzyczny to be confused about the effective date for his dismissal. I marked Ms Liston’s statement Exhibit R1. Ms Liston was not required for cross-examination.

  1. Lipman relied on an outline of written submissions dated 29 November 2024. Mr Scandrett also provided oral submissions at the end of the determinative conference.    

Statutory provisions

  1. Under s. 394(3) of the FW 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, taking into account:

(a)   the reason for the delay; and

(b)   whether Mr Wawrzyczny first became aware of the dismissal after it had taken effect; and

(c)   any action taken by Mr Wawrzyczny 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 Mr Wawrzyczny and other persons in a similar position.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

Consideration – should an extension of time be granted?

Reason for the delay

  1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 14 October 2024. The delay is the period commencing immediately after that time until the application was filed on 15 October 2024, although circumstances arising prior to that period may be relevant to the reason for the delay.[4]

  1. 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]

  1. Mr Wawrzyczny 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 Mr Wawrzyczny has not provided any reason for any part of the delay.[6]

  1. While Mr Wawrzyczny referred to taking a holiday with his son and receiving erroneous advice about whether he could make an unfair dismissal application, the sole reason Mr Wawrzyczny ultimately relied upon to explain why his application was filed a day late on 15 October 2024 was the technical issues he experienced with the Commission’s online lodgment system on 14 October 2024.

  1. Even though the evidence provided by Mr Wawrzyczny does not conclusively prove he experienced technical issues with the Commission’s online lodgment system on 14 October 2024, I am prepared to accept on the balance of probabilities that he did experience technical issues. It is clear Mr Wawrzyczny did register to use the online lodgment system on 14 October 2024 and Mr Wawrzyczny’s evidence about the technical issues he experienced was not contested by Lipman.

  1. I find Mr Wawrzyczny has a satisfactory explanation for the delay based on the technical issues he experienced with the Commission’s online lodgment system. This factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time.   

Did Mr Wawrzyczny first become aware of the dismissal after it had taken effect?

  1. Mr Wawrzyczny accepts he was informed that his employment was being terminated by Mr Tondl on 23 September 2024 and that he was handed a termination letter on that date. However, Mr Wawrzyczny provided evidence that he initially though the dismissal would take effect on 30 September 2024 and did not realise the employment had already ended until he received a text message from Mr Tondl on 26 September 2024.

  1. Although Mr Wawrzyczny’s evidence that he was confused about the effective date for his dismissal was not contested, it is clear that Mr Wawrzyczny was ultimately aware of the correct date and of the due date for his unfair dismissal application. I find this is a neutral factor.     

What action was taken by Mr Wawrzyczny to dispute the dismissal?

  1. I accept that Mr Wawrzyczny took action to dispute his dismissal when he contacted Mr MacKee on 14 October 2024. Mr Wawrzyczny also communicated to Mr Tondl on 30 September 2024 that he was seeking legal advice in relation to his dismissal. This factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time.  

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. Lipman did not argue it will suffer any specific prejudice if an extension of time is granted. I find prejudice to be a neutral factor.

What are the merits of the application?

  1. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).[7]

  1. I cannot make even a preliminary assessment at this stage regarding whether the performance concerns relied on by Lipman to dismiss Mr Wawrzyczny are valid. There are too many contested factual issues that need to be resolved. 

  1. If I was confident that Mr Wawrzyczny’s employment was not covered by a modern award, I would find that the merits weigh against a finding of exceptional circumstances and the granting of an extension of time. I consider there is a reasonable chance that Mr Wawrzyczny’s managerial position was not covered by the classification structure in any modern award. However, I do not consider the position is currently sufficiently clear to warrant a firm conclusion that Mr Wawrzyczny was not a person protected from unfair dismissal.

  1. I find the merits of the application to be a neutral factor.

Fairness as between Mr Wawrzyczny and other persons in a similar position

  1. Neither party made any persuasive submissions directed at this factor. I consider this factor is neutral.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

  1. 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.[8] 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.[9] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[10]

  1. Having regard to all of the matters at s.394(3) of the FW Act, I am marginally satisfied that there are exceptional circumstances.

  1. I consider the combination of the technical difficulties Mr Wawrzyczny encountered on 14 October 2024 and the steps Mr Wawrzyczny took to dispute his dismissal constitute exceptional circumstances. 

Conclusion

  1. Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

  1. Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[11] I am satisfied that it is appropriate to extend the period for the application to be made to 15 October 2024.

  1. The application is listed for Mention/Conference via video at 2:00pm on 19 December 2024 where the next steps for Mr Wawrzyczny’s application will be discussed.

COMMISSIONER

Appearances

Mr Wawrzyczny representing himself.

Mr Scandrett for Lipman. 

Determinative conference:

2024.

Sydney (by video via Microsoft Teams).

5 November.


[1] Fair Work Act (2009) s 394(2).

[2] FW Act s 382(b).

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] (‘Stogiannidis’).

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[5] Stogiannidis [39].

[6] Ibid [40].

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[8] Ibid [13].

[9] See ibid.

[10] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[11] FW Act s 577.

Printed by authority of the Commonwealth Government Printer

<PR782250>

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0