Ryan Boswell v Brighton-Best International (Au) Pty Ltd
[2024] FWC 3010
•31 OCTOBER 2024
| [2024] FWC 3010 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ryan Boswell
v
Brighton-Best International (Au) Pty Ltd
(U2024/10641)
| COMMISSIONER MIRABELLA | MELBOURNE, 31 OCTOBER 2024 |
Application for an unfair dismissal remedy
On 10 September 2024, Mr Ryan Boswell (the Applicant) filed in the Fair Work Commission (the Commission) an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).
The Applicant was dismissed on 9 August 2024, and this is not a disputed matter. Section 394(2) states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or such further period as the Commission allows pursuant to s.394(3). For his application to have been filed within time, the Applicant needed to file by 30 August 2024; however, the application was 11 days late. In order for the application to proceed, the Applicant requires an extension of time.
The Commission may only allow a further period within which to file if it is satisfied that there are exceptional circumstances, taking into account:
· 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 deciding on whether there are exceptional circumstances, I must consider and give appropriate weight to each of the matters in s.394(3). 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 matter was dealt with by way of determinative conference on 29 October 2024 at which the Applicant gave evidence in support of his application. The Respondent did not file any materials or make any submissions.
Relevant factors
Section 394(3)(a) – The reason for the delay
The reason for the delay is one of the factors in s.394(3) that I need to weigh up in assessing whether there are exceptional circumstances in this matter, and the reason itself need not be an exceptional circumstance.
The Applicant submits that the reasons for the delay in the filing of his Application were:
· At the time of his termination his mother was requiring ‘a lot’ of his attention. His mother was suffering from cancer and regularly falling. She also required doctor’s appointments to be made;
· ‘Appointments for lawyers and paperwork for Centrelink Workcover and fair work’;[2]
· Stress ‘for all these things at once’;
· ‘…at the time I had not realised about the timeframe and this is the reason for it being sent in later than the required timeframe.’
Whilst at the time of termination the Applicant’s mother had serious health challenges, these pre-existed the termination and the continuation of the Applicant’s carer’s duties do not in themselves weigh in favour of concluding that exceptional circumstances exist.
The Applicant raised the issues of the post termination period being a stressful time ‘with everything going on’.[3] He has referred to his carer’s duties, the need to make doctor appointments for his mother and complete paperwork and make appointments for himself with Centrelink and the Commission. This combination of activities do not tend to favour the finding of exceptional circumstances. As mentioned already, any carer’s duties he had for his mother existed prior to the dismissal. The need to make appointments and the administration of his own affairs is something that is to be expected when someone in the Applicant’s position is dismissed. That the Applicant could make appointments and complete ‘paperwork for Centrelink Workcover’ illustrates that he was in all likelihood capable of filing a Form F2.
The Applicant also gives the reason that he was not aware of the time limit for making the Application. The law is clear that mere ignorance of the statutory time limits is not an exceptional circumstance.[4]
The Applicant has not established an acceptable reason for any part of his delay in lodging his application. This factor weighs against the application for an extension of time.
Section 394(3)(b) – Whether the Applicant first became aware of the dismissal after it had taken effect
The Applicant does not dispute that he became aware of his dismissal when it took effect. I will treat this as a neutral consideration.
Section 394(3)(c) – Any action taken by the person to dispute the dismissal
[11] Other than filing the Application late, the Applicant did not take any action to dispute his dismissal and I consider this a factor tending to weigh against a finding of exceptional circumstances.
Section 394(3)(d) – Prejudice to the Respondent
Neither the Applicant nor the Respondent made any submissions about this consideration, and I accordingly treated this as a neutral consideration.
Section 394(3)(e) – The merits of the application
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested, but the merits are nonetheless a factor I am required to take into account in assessing whether there are exceptional circumstances.
The Applicant submits that he is a victim of bullying and that he has been dismissed for taking time off, most of which he says was due to an injury he sustained at work.
Although the Respondent has not provided any submissions regarding the jurisdictional issue other than identifying it in the Form F3, it disputed the reasons for dismissal given by the Applicant. The Respondent says the Applicant was dismissed for performance based reasons and not complying with company policy.
I do not reflect on the merits of the matter in any certain way and, at their highest, they must be taken to be of neutral weighting in my consideration of all relevant factors.
Section 394(3)(f) – Fairness as between the person and other persons in a similar position
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.
The Applicant purported to make submissions on this consideration and said:
‘As for the question of fairness between myself and any other worker in same position I do believe I was the only person that was targeted by the supervisor as I don't think any other worker had someone treat them the way I was treated I never of any other worker have to be abused while there on a tea break or be told that they have to earn there breaks or have other things made up about them.’[5]
In the present case, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In all the circumstances I will treat it as a neutral consideration.
Are there exceptional circumstances?
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.[6]
Having regard to all the matters in s.394(3) of the Act and the foregoing, I am not satisfied that there are exceptional circumstances in this case such that I allow the Applicant additional time within which to make his application.
Conclusion
Having found that there are no exceptional circumstances in this case, I cannot grant an extension of time to allow the Applicant to file beyond the statutory period. Accordingly, the application is dismissed.
An order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
The Applicant on his own behalf.
Ms Lucie Rushton and Mr Mohan Selvaratnam for the Respondent.
Hearing details:
Melbourne (by video)
29 October
[1] Nulty v Blue Star Group[2011] FWAFB 975 (Nulty), [13].
[2] Exhibit A3 of the Court Book.
[3] Exhibit A3 of the Court Book.
[4] Nulty at [14].
[5] Exhibit A3 of the Court Book.
[6] Nulty at [13].
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