Ryan Auchettl v Australian Transaction Reports & Analysis Centre (Austrac)
[2024] FWC 2048
•1 AUGUST 2024
| [2024] FWC 2048 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ryan Auchettl
v
Australian Transaction Reports & Analysis Centre (Austrac)
(U2024/7297)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 1 AUGUST 2024 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances not found – application dismissed.
Introduction
On 25 June 2024, Mr Ryan Auchettl made an application to the Commission for an unfair dismissal remedy. He contends that he was unfairly dismissed by the Respondent on 24 May 2024.
Section 394(2) of the Fair Work Act 2009 (Cth) (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 14 June 2024. The application was therefore filed eleven days outside the 21-day period.
For the application to proceed, Mr Auchettl requires the Commission grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a hearing on 31 July 2024, at which the Applicant gave evidence in support of his application.
Extension of time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay,
· whether the person first became aware of the dismissal after it had taken effect,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.
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.[3]
Relevant factors
Reason for delay:
The Act does not specify what reason for delay might justify 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.[4]
The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[5] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.[6]
The Applicant resigned from his employment, effective 24 May 2024. However, he contends that he was forced to resign, and was, therefore, dismissed by the Respondent.
The Applicant’s explanation for the delay is that since his dismissal he has been focused on trying to find another job and did not know that he may be eligible to make an unfair dismissal application or know about the process. He also says that the situation caused significant stress and impacted his health.
Having considered this material, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging his application. None of the matters he relies upon are unusual or exceptional, and no evidence concerning the details of the nature and impact of his mental health issues on his capacity to make an unfair dismissal application was given.
Whilst understandable that he was focused on trying to find another job, and was experiencing significant stress, it is neither unusual or uncommon. Many employees faced with the loss of their job and source of income focus on finding a new job. Similarly, his lack of knowledge of the option of making an unfair dismissal application is not unusual.
In those circumstances, I am not persuaded that the Applicant has provided an acceptable, credible, or satisfactory explanation for the 11-day delay. The fact that there is not such an explanation for the whole of the period of the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect:
The Applicant resigned from his employment on 22 May 2024, and his request for a reduced notice period to take effect on 24 May 2024 was agreed by the Respondent. The Applicant claims that he had no choice but to resign, and hence was dismissed by the Respondent.
Assuming for current purposes that he was dismissed, the Applicant had the benefit of the full 21-day period within which to lodge the application. This also weighs against a conclusion that there are exceptional circumstances.
Whether the Applicant took action to dispute the dismissal:
If an applicant disputes a dismissal with his or her employer before lodging the application and after the dismissal takes effect, the effect of that dispute is to at least put on notice the employer that there is a controversy about the dismissal. In such circumstances the fact that there was notice of such a dispute is a matter which would weigh in the applicant’s favour, even though the application was lodged out of time.
Mr Auchettl did not take any steps, beyond lodging the application, to dispute his dismissal.
Prejudice to the employer (including prejudice caused by the delay):
Ultimately, though there is no particular prejudice suffered by the Respondent, I consider that this matter weighs neutrally. The absence of prejudice is not in and of itself an exceptional circumstance, nor does the short period of delay justify such a conclusion.
Merits of the application:
The merits of the application are a relevant consideration in determining whether there are exceptional circumstances and whether it is appropriate to exercise the discretion to extend the timeframe. For example, a highly meritorious claim may persuade the Commissioner to accept an explanation for delay that would otherwise have been insufficient.
Mr Auchettl claims that he had no option but to resign because of alleged workplace bullying by his manager. He submits that whilst he did not make a formal complaint of bullying, he had raised issues about the conduct but received no assistance. The Applicant resigned following being placed on a performance improvement plan during which he claims his work was unreasonably criticised, and that he was placed on the plan with the sole intention of resulting in the termination of his employment.
During the hearing the Applicant’s evidence was that ‘I didn’t have to resign but if I had stayed I would have been in a position where I wasn’t able to complete any work whatsoever and I would have been taking money from Australian taxpayers as a member of the APS, and morally that was not something that I was ok with’.
On the material presently before the Commission including the Applicant’s evidence above, Mr Auchettl’s case appears weak, and is not a basis to weigh positively towards a finding of exceptional circumstances. I have treated it as a neutral consideration.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Mr Auchettl’s claim. However, cases will generally turn on their own facts.
Neither party drew my attention to any particularly relevant matters under this consideration, and I have treated it as a neutral factor.
Conclusion
Having regard to the matters I am required to take into account under s.394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In particular, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging his application and the merits of his claim are not strong. Having regard to all the evidence, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
As there are no exceptional circumstances, no additional time can be allowed for Mr A to make his application. This means that he is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
R. Auchettl, the Applicant appearing on his own behalf.
A. Cooper, from the Australian Government Solicitors, appearing on behalf of the Respondent.
Hearing details:
2024.
31 July.
Via Microsoft Teams.
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[5] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].
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