Saxon Tipping v Telstra Corporation Limited
[2023] FWC 1848
•26 JULY 2023
| [2023] FWC 1848 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Saxon Tipping
v
Telstra Corporation Limited
(U2023/5276)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 26 JULY 2023 |
Unfair dismissal application filed out of time – casual employment – effective date of dismissal — circumstances not exceptional – application dismissed
Introduction and outcome
On 14 June 2023, Saxon Tipping (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Telstra Corporation Limited (Respondent).
Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.
In his application, the Applicant stated that his employment ended on 22 May 2023. Therefore, the application has been made outside of the 21-day period prescribed by s.394(2) of the FW Act.
Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1] To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered.
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing in accordance with s.399 of the FW Act.
In summary, I have found that the Applicant’s employment ended on 22 May 2023. The application should have been made on 12 June 2023 to comply with s.394(2)(a) of the FW Act. The application was therefore made 2 days outside of the 21-day limit.
I have found that the circumstances in which the application was made are not exceptional, according to the factors in s.394(3) of the FW Act, and so I have not granted an extension of time to file the application. The application is dismissed.
Directions conference
On 21 June 2023, the Chambers of Vice President Catanzariti wrote to the Applicant requesting that he explain why his circumstances for lodging the application out of time were exceptional and provide any evidence to support that explanation.
On 21 June 2023, the Applicant provided the following response:
I really apologise for the lodging being 2 days late.
There are several reasons as to why:
1) Erin Taylor did not explain to me thoroughly, even after I requested multiple times, what the meaning of the termination was - so it took me time to process this and figure it out/understand it with the help of an employment lawyer and a member of the Telstra HR staff. I know it was unfair communication between Erin and myself regarding the dismissal.
2) I didn’t have the funds in my bank account to pay the cost of the lodgement. I know I could make an application for assistance, but I was embarrassed and don’t like owing people money and wanted to pay and do the right thing.
3) The circumstances around this involve my serious mental health issues raised with HR, and workers compensation, and the entire process had me feeling anxious but I was urged by my doctors and employment lawyer to lodge this case
4) I made a formal complaint about Erin Taylor dismissing myself 4 days before the dismissal, so I was awaiting to hear back from Telstra for a result before lodging this form, but no one got back to me in a timely manner (and still haven’t), so I took action in trying to figure out and fix this before the dismissal took place.
5) I felt intimidated and scared of Erin as she was sending staff to come and ask for my personal details, so lodging this also delayed me as I was so nervous to go and do this.
I know it’s 2 days out of the 21 day period, but I would really appreciate it if an exception could be made as this case includes medical discrimination, bullying and a multitude of factors on a large scale involving Erin Taylor.
Please consider an exception in my case if possible, i (sic) would be very grateful.
On 29 June 2023, the matter was listed for a directions conference. I made directions for the filing and serving of material and set the matter down for hearing at 10:00am on 17 July 2023.
The Applicant filed evidence and submissions in the Commission on 6 July 2023.
The Respondent filed evidence and submissions in the Commission on 13 July 2023.
Appearances at hearing
On 6 July 2023, the Respondent’s legal representative wrote to my Chambers in relation to the issue of permission to appear.
Having considered the submissions of the Respondent and, given that no objection was received by the Applicant, I determined that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
Accordingly, at the hearing on 17 July 2023, the Respondent was represented by Mr Will Spargo, and the Applicant was self-represented.
The Applicant gave evidence on his own behalf. Ms Erin Taylor gave evidence for the Respondent.
When did the dismissal take effect?
The Applicant alleged that his employment ended on 22 May 2023[2].
The Respondent acknowledged that the Applicant was sent a letter on this day which purported to terminate his casual employment. The Respondent submitted that its primary position was that, as a matter of law, the Applicant's employment came to an end much earlier at the Applicant’s initiative. The Respondent variously submitted that the Applicant’s employment ended in April 2022, August 2022, October/November 2022 or February 2023.
In order to consider the Respondent’s position that the Applicant's employment came to an end earlier than 22 May 2023, it is necessary to consider the events which occurred during the period from April 2022 to 22 May 2023.
The Applicant commenced employment with the Respondent on 8 September 2021 as a Senior Retail Sales Representative following the Respondent's acquisition of Makachla Pty Ltd.[3] On 14 April 2022, following a period of stress leave, the Applicant ceased this role and entered into a new employment agreement with the Respondent as a casual Retail Consultant.[4] In this role, the Applicant reported to Mr Andrew Qian, Store Manager at Eastgardens until August 2022 then Mr Heshan Jayasinghe, Store Manager at Eastgardens from August 2022. Mr Quin and Mr Jayasinghe reported to Ms Taylor, who at that time was employed by the Respondent as an Area Manager.[5]
The employment agreement provided[6]:
Engagement
You are employed as a casual employee.
Each time Telstra offers, and you accept work, a separate Employment Agreement will be created between you and Telstra. Each offer and acceptance of work stands alone and constitutes a new Employment Agreement which is separate and distinct from any subsequent or prior Employment Agreement. There is no obligation on, or commitment from Telstra to offer you work at any time, or for any duration. Equally, you are not obliged to accept any work offered to you.
Any work offered will be in accordance with Telstra business needs. We may change the quantity and arrangement of any work offered to you as necessary.
According to Ms Taylor’s evidence, in or around April or May 2022, Mr Tipping raised a HR complaint against Mr Qian and Ms Taylor.[7] This complaint was independently investigated by Mr Scott Curtin, General Manager at Telstra, and the allegations were found to be unsubstantiated. Despite the finalisation of this investigation, Mr Tipping indicated to Mr Qian and Mr Jayasinghe that he would not be returning to work unless the findings of the investigation were revisited.[8]
Neither party provided any evidence about events which occurred during the period from approximately May 2022 to 8 September 2022.
On 9 September 2022, Mr Jayasinghe sent a text message to Mr Tipping asking
for his availability to work for September and October 2022.[9] Some of the messages provided in the Respondent’s evidence are cut off and as such it appears that the record of text messages provided by the Respondent is incomplete. However, one of the messages from the Applicant in response to the message from Mr Jayasinghe states:
Thanks Heshan. I would love to come back there as soon as this is over and get back into it :)[10]
On 27 October 2022, Mr Jayasinghe sent a further text message to the Applicant as follows:
Hey bro, hope you are doing well. You will still keep me posted on when things are sorted and ready for work ya? Just checking as I’m building the roasters (sic) for next month :)[11]
The Applicant responded:
Yes I’m still keen to come back to work. I’m about to have major spinal surgery on Tuesday and will be out of action for 8 weeks. I can provide a medical certificate from my surgeon on this if you need.[12]
On 7 November 2022, Mr Jayasinghe sent the following message to the Applicant:
Btw, Telstra has sent out a new contract for all casual, FT and PT employees. Be great if you can accept that prior to COB 10th November. It should be on your work email.[13]
The Applicant replied:
Okay thank you!
I will sign asap[14]
The Applicant then sent through an image of an x-ray and with the following message:
I will let you know when I’m recovered enough to come back to work. But I know (sic) how (sic) a few screws and new discs in my neck, so it won’t be for a little bit – but I intend too (sic) :)[15]
On 22 February 2023, Mr Jayasinghe sent the following message to the Applicant:
Hey Saxon!
Just checking in and you are doing well :)
Hope the recovery went well!
Also, keep me posted if you have any availability for March that is if you have recovered.[16]
As far as Ms Taylor is aware, the Applicant did not respond to this email.[17]
In or around March 2023, Ms Taylor was informed by Mr Chi Sun (the Respondent’s Bondi Store Manager) that he had seen the Applicant working at the Bondi Fone King store.[18] At the time, Ms Taylor was busy dealing with other staffing matters and did not have time to immediately follow this up.[19] On 28 April 2023, in accordance with advice from the Respondent’s Human Resources department, Mr Jayasinghe contacted the Applicant since he had not provided availability to work for the prior 12 months.[20]
The Respondent also took steps to ascertain whether the Applicant was working for Fone King, who the Respondent regarded as a competitor.[21] Arising from this, the Applicant accused Ms Taylor of stalking him.[22]
Ms Taylor attempted to contact the Applicant on 2 May 2023.[23] In response, the Applicant sent a message to Ms Taylor on 3 May 2023 advising he was travelling overseas.[24] When Ms Taylor did not hear from the Applicant by 17 May 2023, she called the Applicant, and he did not answer. With the Respondent’s Human Resources department’s approval, Ms Taylor sent the Applicant an email attaching a letter proposing to end his casual employment and requesting that he respond by 22 May 2023.[25]
During the period from 17 to 19 May 2023, the Applicant and Ms Taylor corresponded over email about various matters.[26] On or around 19 May 2023, the Applicant submitted a complaint to Human Resources about Ms Taylor. An investigation of this complaint was conducted, and Ms Taylor was asked to provide her version of events.[27]
The Respondent submitted that the Applicant last worked for Telstra in April 2022, over 12 months before the termination letter was sent, and was working at Fone King, a competitor of the Respondent. The Respondent relied on the Applicant being asked about his availability to work at various times between October 2022 and February 2023 by the Store Manager but at no point indicating any availability for work.
Further, the Respondent alleged that there is evidence to suggest that the Applicant had conversations with other staff members about leaving employment with the Respondent.
Having regard to these facts, the Respondent submitted in its Outline of Submissions that it should be concluded that the Applicant’s employment ended in April 2022, or by October/November 2022 at the latest.
In closing submissions, following the conclusion of the evidence, the Respondent submitted that the Applicant’s employment concluded in August 2022 when he commenced full time employment with Fone King or alternatively in February 2023 when he did not respond to an email from the Respondent about his availability.
The fact that the Applicant has not worked for the Respondent for over a year does not necessarily mean that the Applicant ceased employment with the Respondent earlier than 22 May 2023. The Applicant’s employment agreement makes it clear that there was no obligation on, or commitment from the Respondent to offer the Applicant work at any time, or for any duration.
Similarly, the Applicant had no obligation to accept any work offered to him by the Respondent. The long period that the Applicant did not perform work for the Respondent is not inconsistent with the terms of the employment agreement.
In addition, the Respondent took a number of actions which are consistent with the existence of an ongoing employment relationship with the Applicant.
The Respondent investigated a complaint raised by the Applicant against Mr Qian and Ms Taylor in April or May 2022. The Respondent, through its Eastgardens Store Manager, inquired about the Applicant’s availability to work in September 2022, October 2022, November 2022 and February 2023. These inquiries were sent to the Applicant’s work phone number, which indicates the Respondent provided a work phone number for the Applicant’s use at least until February 2023. In March 2023, the Respondent took an interest in the fact that Mr Tipping was working for Fone King at Bondi and in April 2023 accused him of engaging in a conflict of interest in doing so. Finally, the Respondent’s Human Resources Department was involved in considering the Applicant’s ongoing employment from 28 April 2023, advising Ms Taylor about communications with the Applicant and ultimately involved in drafting a letter to Mr Tipping on 17 May 2023 proposing to terminate his employment.
In my view, the Respondent would not have engaged in any of these actions or communications with the Applicant if the Applicant was no longer working for the Respondent.
The Applicant’s conduct was also consistent with the continued existence of an employment relationship. He indicated that he was keen to come to work in messages that he sent to Mr Jayasinghe in September, October and November 2022. He had reasons for not returning to work, namely, the HR complaint in April/May 2022 and the spinal surgery which left him incapacitated for eight weeks from October 2022. Finally, he also offered to provide a medical certificate to support his unavailability for eight weeks while he was recovering from spinal surgery.
The fact that the Applicant was working full time with Fone King was not an indication that he had ceased or wished to cease employment with the Respondent. Due to the casual nature of the employment relationship with the Respondent, it was entirely feasible for the Applicant to be available to accept shifts with the Respondent at times that he was not performing work for Fone King. That he did not do so is consistent with the “Engagement” clause in his employment agreement quoted above. This is the case regardless of whether the Applicant was acting in breach of the Respondent’s “Conflicts of Interest and Outside Interests” policy, a matter which I am not required to determine in considering whether to grant an extension of time.
Although the employment agreement reflects the common law position in relation to casual employment, s.384 of the FW Act contemplates the possibility of the employment relationship continuing for a casual employee despite a new employment contract applying with respect to each engagement.
I find that the conduct of both the Applicant and Respondent between the period from April 2022 to May 2023 is indicative of an ongoing employment relationship, despite the Applicant not working for over a year. I further find that this employment relationship was brought to an end by the Respondent on 22 May 2023 after putting the Applicant on notice that it was intending to do this on 17 May 2023.
A further issue arises for determination as to whether the dismissal took effect on 22 May 2023 given the evidence of the Applicant at the hearing. On 22 May 2023, the Applicant sent an email to Ms Taylor which appeared to be in response to Ms Taylor’s email containing the termination letter[28]. However, during the hearing, the Applicant claimed that he did not open the termination letter when it was sent to him or read the accompanying email as he did not want it to cause him any stress. The Applicant suggested he did not read the termination letter until after the 21-day period for lodging the Application had passed. However, the Applicant did not identify the precise date that he read the letter.
In Ayub v NSW Trains[29], the Full Bench outlined:
An interpretation of s.394(2)(a) which would have the practical effect of reducing further what is already a very limited opportunity to lodge an unfair dismissal claim would be rejected if another is reasonably available. Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.
In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.[30]
The Applicant was on notice from 17 May 2023 that the Respondent was considering terminating his employment and that he was required to respond to the proposed termination by 22 May 2023. He engaged with the proposed termination by sending multiple emails to Ms Talyor during the period from 17-19 May 2023, and then made a complaint about Ms Taylor to Human Resources.
In these circumstances, the Applicant should have been aware that the Respondent was likely to make a decision about his future employment on or soon after 22 May 2023.
The Applicant has not provided any medical evidence to the Commission. If the Applicant had provided medical evidence which demonstrated that opening the termination letter and reading the accompanying email were likely to cause adverse health consequences for the Applicant during some or all of the period up to 12 June 2023 this may have led me to conclude that the dismissal took effect sometime after 22 May 2023.
However, in the absence of such evidence, consistent with the Full Bench decision in Ayub v NSW Trains, I find that the Applicant had a reasonable opportunity to know of the dismissal when the email was received in his inbox on 22 May 2023.
For the purpose of considering the matter pursuant to subsection 394(2) of the Act, I therefore find that the alleged dismissal took effect on 22 May 2023.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application, but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[31]
As I found above, the dismissal took effect on 22 May 2023. The final day of the 21-day period was therefore 12 June 2023 and ended at midnight on that day.
It is not in dispute, and I so find, that the application was made on 14 June 2023.
The application having not been made within 21 days of the date on which the dismissal took effect, I now need to consider whether it was made within such further period as the Commission allows.
Should the Commission allow a further period for the application to be made?
Under section 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 the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[32]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 12 June 2023. The delay is the period commencing immediately after that time until 14 June 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[33]
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.[34]
An applicant 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 the Applicant has not provided any reason for any part of the delay.[35]
In addition to the matters raised in his email to Chambers of Vice President Catanzariti dated 21 June 2023, the Applicant provided the following reasons in the Applicant’s Outline of Argument in relation to why his application was made 21 days after the dismissal took effect:
I had raised a HR investigation contesting the reasons for proposed dismissal on the 19th May and yet to receive any of their findings, I was of the understanding that this matter was to be investigated by HR and any termination would be issued by HR or another person given my claims against Erin Taylor’s conduct.
Erin Taylor had the propensity to act outside the scope of her role, with acts such as sending Telstra employees into another business to illicit (sic) my personal information, I wasn’t convinced of the legitimacy of this termination letter, especially as it included facts I had contested with evidence in my claim to HR.
I followed up with HR on 22nd May after receiving this letter so see the status of my internal claim as part of my efforts to resolve this matter directly with Telstra.
I am currently receiving psychiatric treatment for mental harm caused during my employment with Telstra (amongst other injuries which will be further listed in my Unfair Dismissal claim). It was on the advice of my doctors that I should cease communications with Erin Taylor and communicate only with HR.
I responded to Erin Taylor’s email from the 22nd May that I would be disregarding the letter she had sent as I had raised a HR complaint and investigation into the matter and would only be communicating with HR moving forward.
It was after hearing no response from HR that I pursued the alternative avenue of seeking resolution with Fair Work.[36]
The reasons provided by the Applicant to explain the delay show that he was expecting the decision to terminate his employment by the Respondent to be reviewed after his complaint about Ms Taylor, that he was not sure whether the termination letter was genuine, that he was confused about the meaning of the termination letter, and that he was intimidated by Ms Taylor.
All of these matters explain why the Applicant did not lodge the application immediately and may even explain why the Applicant did not make the application within one or two weeks of the dismissal. However, the Applicant has not articulated why these factors, either individually or collectively, prevented him from making the Application on or before 12 June 2023 but were not a barrier to him lodging the application on 14 June 2023.
The Applicant submitted that financial issues prevented him from making the application on time and also made reference to seeking psychiatric treatment for mental harm caused during his employment with Telstra.
The Applicant’s financial issues were not caused by the dismissal as he had not performed work for the Respondent for over a year. In any event, it was open for the Applicant to make an application for the fee to be waived on the ground that this would cause him serious financial hardship. The Applicant did not do so and also did not explain while his financial situation prevented him from making the Application on or before 12 June 2023 but that two days later he was able to pay for the filing fee.
The Applicant did not explain how his mental health issues caused the delay and did not file any supporting evidence from his treating medical professionals.
In these circumstances, I am unable to find that the delay was caused by any adverse health issues suffered by the Applicant.
There is no evidence before me about whether the reasons that the Applicant advanced for the delay actually caused the delay in filing his application, or whether they related to circumstances which were occurring around the same time of the dismissal but which had no impact on the date the application was filed.
In the circumstances, I am not satisfied that the reasons for the delay advanced by the Applicant weigh in favour of a finding that there were exceptional circumstances.
Did the Applicant first become aware of the dismissal after it had taken effect?
I have already found that the Applicant had a reasonable opportunity to know of the dismissal when the email was received in his inbox on 22 May 2023. On this basis, I find that the Applicant had the benefit of the full period of 21 days to lodge the application.
What action was taken by the Applicant to dispute the dismissal?
The Applicant claims that he took the following action to dispute the dismissal:
· When I received the proposal termination letter on the 17th May I responded with evidence contesting the reasons for dismissal.
· I raised an internal HR investigation into the letter and also into Erin Taylor’s conduct.
· I have a Worker’s Compensation claim with Telstra which I am currently receiving treatment from 8 specialists from injuries caused during my employment at Telstra, including a psychiatrist for mental harm who advised me to cease communications from Erin Taylor.
· I responded to the Termination Letter email that I would be disregarding this letter until I had received HR’s findings and that I would only be communicating with HR moving forward.[37]
I find that these factors weigh in favour of an extension of time being granted.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Applicant submitted that no particular prejudice to the Respondent can be identified and the Respondent conceded this. I find that prejudice to the Respondent is a neutral consideration in this matter.
What are the merits of the application?
Based on the material filed by the parties, it is evident to me that the merits of the application turn on contested points of fact.
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
The Respondent submitted that there was nothing remarkable or unusual about the Applicant's circumstances in preparing and filing his application, and that it would be unfair to others in a similar position to the Applicant if his circumstances were deemed exceptional.
As the Full Bench noted in Perry v Rio Tinto Shipping Pty Ltd,[38]
…this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.[39]
In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[40]
Given that there is no evidence before me about other employees of the Respondent, I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay, being:
·the Applicant expected the decision to terminate his employment by the Respondent to be reviewed after his complaint about Ms Taylor
·the Applicant not sure whether the termination letter was genuine
·the Applicant was confused about the meaning of the termination letter
·the Applicant did not have the funds in my bank account to pay the cost of the filing fee.
·the Applicant was intimidated by Ms Taylor
·the Applicant has serious mental health issues which led him to feel anxious
(b) the Applicant had a reasonable opportunity to know of the dismissal when the email was received in his inbox on 22 May 2023;
(c) action taken by the Applicant to dispute the dismissal prior to making the application;
(d) no issue of prejudice to the employer being identified;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) issues of fairness arising as between the Applicant and other persons in a similar position.
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.[41] 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.[42]
The reasons for the delay and the time that the Applicant became aware of the dismissal do not weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(d) to (f) are neutral considerations. The only factor that weighs in favour of granting an extension are the Applicant’s actions to dispute the dismissal, however this is insufficient to lead me to conclude that the circumstances are exceptional, taking into account all of the other matters.
Having regard to all of the matters listed at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed. I order accordingly.
DEPUTY PRESIDENT
Appearances:
S Tipping, Applicant
W Spargo, Solicitor for the Respondent
Hearing details:
2023.
Sydney,
17 July.
[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited[2022] FWCFB 234, [15].
[2] Unfair dismissal application Form F2 filed 14 June 2023.
[3] Employer F3 form filed 29 June 2023, 1.2.
[4]Witness Statement of Erin Taylor, [31] and ET-1.
[5] Ibid, 8.
[6] Ibid, ET-1.
[7] Ibid, 36.
[8] Ibid.
[9] Ibid, ET-4A.
[10] Ibid.
[11] Ibid, ET-5.
[12] Ibid.
[13] Ibid, ET-6.
[14] Ibid.
[15] Ibid.
[16] Ibid, EA-7.
[17] Ibid, 41.
[18] Ibid, 43.
[19] Ibid, 45.
[20] Ibid, 36.
[21] Ibid, 47-49.
[22] Ibid, 51.
[23] Ibid, 56, ET-9.
[24] Ibid, 58, ET-10.
[25] Ibid, 60-61, ET-11, ET-12.
[26] Ibid, 62, ET-13.
[27] Ibid, 63, Et-14.
[28] Ibid, 68, ET-15
[29] [2016] FWCFB 5500
[30] Ibid, [50]
[31] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[32] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[33] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[34] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[35] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[36] Applicant’s Outline of Argument, 4.
[37] Ibid, 5.
[38] [2016] FWCFB 6963.
[39] Ibid, [41].
[40] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].
[41] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[42] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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