Scott Bullock v Robert J & Lorna_B Stephens
[2025] FWC 190
•21 JANUARY 2025
| [2025] FWC 190 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott Bullock
v
Robert J & Lorna_B Stephens
(U2024/13389 and U2024/13387)
Millicent Black
v
Robert J & Lorna_B Stephens
(U2024/13389)
| COMMISSIONER SLOAN | SYDNEY, 21 JANUARY 2025 |
Applications for an unfair dismissal remedy – applications filed out of time – extensions of time for filing sought – extensions refused
Scott Bullock and Millicent Black (together, “the Applicants”) were employed by Robert J and Lorna_B Stephens trading as The Framers Gold Creek (“FGC”). On 18 October 2024 their employment came to an end.
The Applicants each filed an unfair dismissal application with the Fair Work Commission on 9 November 2024.[1]
An unfair dismissal application must be made within 21 days of the dismissal, unless the Commission allows a further period.[2] The 21-day period expired on 8 November 2024. It follows that the Applicants require the Commission to allow them an extension of time to file their applications. They apply for such an extension.
FGC opposes the extension applications.
The unfair dismissal applications arise out of the same set of circumstances. There is a significant level of commonality in the content of the Applicants’ unfair dismissal applications and in their submissions on their extension applications. There is a similar commonality in FGC’s position in respect of both the unfair dismissal applications and the extension applications. The hearings of the extension applications were conducted concurrently. I do not see that there is a relevant distinction between the positions of either Mr Bullock or Ms Black to warrant separate decisions. As a result, I will deal with both extension applications in this decision.
What questions do I need to answer?
The Commission may only allow the Applicants an extension of time if it is satisfied that there are “exceptional circumstances”, taking into account:[3]
a.the reason for the delay. The “delay” is the period between the end of the 21-day period and the filing of the application.[4] In this case, one day;
b.whether the Applicants first became aware of their dismissal after it had taken effect. This factor allows the Commission to have regard to whether there was a delay in the Applicants being informed of their dismissal, which may account for the delay in filing the applications;
c.any action taken by the Applicants to dispute their dismissal. It will be relevant if an employee has taken action to dispute their dismissal, other than by making an unfair dismissal application. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time;[5]
d.prejudice to FGC (including prejudice caused by the delay);
e.the merits of the unfair dismissal application. That is, the prospects of the Applicants succeeding on their claims; and
f.fairness as between the Applicants and other persons in a like position.
Circumstances will be “exceptional” if they are out of the ordinary course, or are unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[6] Exceptional circumstances may include:
a.a single exceptional matter;
b.a combination of exceptional factors; or
c.a combination of ordinary factors which, when taken together, are seen as exceptional.[7]
The test of exceptional circumstances establishes a “high hurdle” for a person seeking an extension.[8] The onus is on the Applicants to demonstrate that exceptional circumstances exist.[9]
But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether to allow an extension of time.[10]
Therefore, two questions arise:
a.Do exceptional circumstances exist in this matter, taking into account the criteria at [6] above?
b.If so, should I exercise my discretion to allow the Applicants an extension of time?
The answer to the first question is no. It is not necessary to consider the second.
Why I have found that the circumstances are not exceptional
I will explain my decision by reference to the criteria at [6] above.
There was no acceptable explanation for the delay
The reason for the delay does not itself need to be exceptional. It is just one of the factors to be taken into account. However, a credible explanation for the entirety of the delay will usually assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[11]
The Applicants’ reason for the delay was that they miscalculated the day on which the 21-day period ended. That is, they understood that the period expired 21 days after the day following the dismissal. They accept that this was an error on their part.
Such an error is unfortunate and not uncommon. However, I do not consider it to be an acceptable reason for the delay.[12] This argues against a finding of exceptional circumstances.
The Applicants were informed of the alleged dismissals[13] on the day they took effect
On the Applicants’ cases, they were notified of their dismissals on the same day they took effect. They had the full benefit of the 21-day period. This argues against a finding of exceptional circumstances.
The Applicants took no action to dispute their alleged dismissals
On 3 November 2024 – more than two weeks after they say they were dismissed – the Applicants sent an email to Robert Stephens of FGC. In their email, the Applicants did not challenge their dismissals. Rather, they raised “discrepancies regarding [their] final pays”.
This is to be viewed in the context of Ms Black’s description of her departure from FGC as set out in her unfair dismissal application. The Applicants claim that on 15 October 2024 they informed Mr Stephens of their intention to leave FGC to start their own framing business. They say that it was agreed that they would remain employed by FGC until the end of December 2024. However, on 18 October 2024 Mr Stephens informed them that he wished them to leave immediately, and that FGC would make a payment in lieu of notice. He handed them envelopes which he said contained cheques. In her unfair dismissal application, Ms Black stated that “[w]e said we understood his decision and left without fuss through the front door”. This does not suggest that the Applicant disputed the alleged dismissals at the time.
In the circumstances, I am not satisfied that there is evidence that the Applicants took any action to dispute their alleged dismissals before commencing these proceedings. That argues against a finding of exceptional circumstances.
There is no evidence of prejudice to FGC
FGC made only limited submissions as to the prejudice it would suffer were I to grant the Applicants an extension of time. Mr Stephens submitted that as a small business owner he would be prejudiced by having his attention drawn away from his business. I do not consider that this is of any particular significance. But the absence of prejudice does not of itself support a finding that exceptional circumstances exist.[14]
What are the merits of the unfair dismissal application?
For present purposes, it is sufficient for the Applicants to show that their unfair dismissal claims have some merit. The greater the merit, the more weight will be given to this factor.[15] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[16]
The basis of Applicants’ claims is set out at [18] above. In addition, they claim that the payments they received for notice and accrued annual leave were less than their entitlements.
FGC contends that on 15 October 2024 the Applicants informed Mr Stephen of their decision to leave FGC within two weeks. While there was a discussion regarding the possibility of them remaining for the rest of the year, this had not been agreed. FGC decided to end the Applicants’ employment immediately and make a payment to them in lieu of the two weeks’ notice they had provided. In these circumstances, FGC denies that it dismissed the Applicants. It also contends that it attempted to resolve the Applicants’ concerns regarding their final payments.
In large part, the case will come down to a finding as to what was said or agreed on 15 October 2024. Each party’s success depends on the Commission accepting their version of events. This will call for the Commission to determine whose evidence is to be preferred, which is likely to require a finding as to the credibility or reliability of the witnesses. This is not a matter about which I could draw even tentative conclusions at this stage.
I have determined that this factor argues neither for nor against a finding of exceptional circumstances.
Fairness as between the Applicants and other persons in a similar position
This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, to ensure fairness as between an applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[17]
The Applicants were not able to demonstrate that their respective applications are so sufficiently different to like matters in extension of time hearings which have come before the Commission that I should treat them differently. It would be unfair to other applicants whose applications for extensions of time have been refused by the Commission to treat the Applicants in a different manner. This weighs against a finding of exceptional circumstances.
Conclusion
Having regard to the matters discussed above, I am not satisfied that exceptional circumstances exist. It follows that there is no basis on which I can grant the Applicants the extensions of time they each seek.
Mr Bullock’s request for an extension of time to file his unfair dismissal application is refused.
Ms Black’s request for an extension of time to file her unfair dismissal application is refused.
COMMISSIONER
Appearances:
Scott Bullock, the Applicant
Millicent Black, the Applicant
Robert Stephens, for the Respondent
Hearing details:
14 January
Sydney (by video)
2025
[1] The applications were made under Part 3-2 of the Fair Work Act 2009 (“Act”). All references in this decision to legislative provisions are references to provisions of the Act.
[2] Section 394(2)
[3] Section 394(3). The requirement to take these matters into account means that each of them must be treated as significant to the decision-making process and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19] and [39]
[4] Long v Keolis Downer t/a Yarra Trams[2018] FWCFB 5109 at [40]
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300
[6] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]
[7] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]
[8] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[9] Romic v Blacktown City Council[2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services[2010] FWA 1798.
[10] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank[2017] FWCFB 436 at [16]
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]
[12] See Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [14]
[13] FGC has raised a jurisdictional objection to the unfair dismissal applications on the basis that it denies that the Applicants were dismissed
[14] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890 at [21]
[15] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]
[16] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]
[17] Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963 at [41]
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