Richard Spencer v PSI Global Ptd Ltd

[2020] FWC 5247

[2020] FWC 5247

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Spencer
v
PSI Global Ptd Ltd
(U2020/11956)

COMMISSIONER YILMAZ MELBOURNE, 1 OCTOBER 2020

Application for an unfair dismissal remedy.

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

[2] The Applicant’s employment with PSI Global Pty Ltd (Respondent) was terminated with effect from 30 April 2020. The unfair dismissal application was lodged on 4 September 2020.

[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 Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 21 May 2020. The application was therefore filed 106 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.

Reason for the delay

[8] 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. 3

[9] The Applicant cited several matters as reasons for the delay in lodging the application. The Applicant had previously filed an unfair dismissal application within time which was subject to a number of conciliation conferences and during the determinative conference the Applicant withdrew. The Applicant submits the reason for the withdrawal of the application was the inconsistency between the verbal termination of employment and the letter which was on the wrong company letterhead. The Applicant submits that this inconsistency required that he obtain legal advice, and as the Deputy President did not allow an adjournment of proceedings for this to occur, he withdrew. The Applicant also refers to difficulties with the NBN and efforts to reach a resolution with the Respondent.

[10] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The Respondent objects to the extension of time and submits no exceptional explanation was provided for the delay, including the reasons for withdrawing the first unfair dismissal application during the determinative conference.

[11] The absence of an acceptable explanation weighs against the Applicant.

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

[12] 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. The first application was lodged within the 21 days, and there was no reasonable explanation for its withdrawal. The Applicant was informed that there was a risk that if a fresh application was made, that an extension of time may not be granted. In the context of the circumstances of this case this consideration is neutral.

Action taken to dispute the dismissal

[13] The Applicant did not dispute his dismissal except with the first application. I do not consider this step to constitute “action disputing the dismissal”. Action taken by the Applicant other than the filing of the Application leaves the Respondent in no doubt that the dismissal is contested. 4 The Applicant had not contested the dismissal directly with the Respondent but he did file two consecutive unfair dismissal applications. This circumstance does not weigh in the Applicant’s favour of the conclusion that there are exceptional circumstances.

Prejudice to the employer

[14] An extension of time would disadvantage the employer as there had already been quite some effort in defending the first application which included several conciliation conferences. The Respondent has not produced evidence to demonstrate prejudice but has demonstrated inconvenience and disadvantage. A delay of 106 days is not a minor matter, but together with the participation in a number of conferences and preparation for arbitration which was underway when the Applicant withdrew does give rise to the presumption of prejudice However, the mere absence of prejudice is insufficient to grant an extension of time. 5 In this matter, this consideration does not favour an extension of time.

Merits of the application

[15] 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 if the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. 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

[16] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, neither the Applicant or the Respondent addressed this consideration. I consider this to be a neutral consideration in the present matter.

Conclusion

[17] 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.

COMMISSIONER

Appearances:

Mr Richard Spencer for himself

Mr M. Madeira and Ms I. Lancuba for the Respondent

Hearing details:

2020

Melbourne (by telephone)

29 September

Printed by authority of the Commonwealth Government Printer

<PR723220>

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

 2   Ibid.

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

 4   Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300.

 5   Ibid.