Ryan Auchettl v Australian Transaction Reports & Analysis Centre (Austrac)

[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

1. 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.

1. 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).

1. The period of 21 days ended at midnight on 14 June 2024. The application was therefore filed eleven days outside the 21-day period.

1. For the application to proceed, Mr Auchettl requires the Commission grant a further period of time within which to bring his application.

1. 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

1. 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]

1. The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]

1. 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.

1. In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations. 

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.[3]

Relevant factors

Reason for delay: 

1. 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]

1. The delay required to be considered is the period after the prescribed 21-day period for lodging an application.…