Sean Rojas v Fredon Security Pty Ltd
[2023] FWC 3281
•22 DECEMBER 2023
| [2023] FWC 3281 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Sean Rojas
v
Fredon Security Pty Ltd
(U2023/10590)
| COMMISSIONER PERICA | MELBOURNE, 22 DECEMBER 2023 |
Application for an unfair dismissal remedy
Mr. Sean Rojas (Applicant) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth.) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Fredon Security Pty Ltd (Respondent).
The application was filed by Mr. Tom Koletsos, an industrial relations consultant of the firm Just Relations Consultants at 12:02 AM on 27 October 2023.
In its Form F3 response, the Respondent objected to the application on the ground that the application is out of time and that the Applicant was not dismissed.
For the following reasons, I have decided to extend the time for filing the application under s 394(3).
Procedural History
On 23 November 2023, I made directions for the Applicant and the Respondent to file contentions, witness statements and other documentary material with respect to the jurisdictional objections.
The matter was heard on 7 December 2023 by way of a determinative conference. At the conference the Applicant represented himself, gave sworn evidence and was cross examined. The Respondent was represented by Ms. Jewlia Holt and Mr. Richard Laufer.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a)within 21 days after the dismissal took effect: or
(b)within such further period as the Commission allows.
When did the dismissal take effect?
The alleged dismissal took effect on 5 October 2023. There is a dispute between the parties as to whether the Applicant was dismissed under s 386(1)(b).
When was the application made?
The application was made at 12:02 AM on 27 October 2023 when it was received by the Melbourne Registry of the Commission by e-mail from Mr. Koletsos, who had been the Applicant’s paid agent.
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.”[1]The Full Bench further stated, “[i]f the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
The alleged dismissal took effect on 5 October 2023. The final day of the 21-day period was therefore 26 October 2023 and ended at midnight on that day. The application was filed two minutes late at 12:02 AM on 27 October – the 22nd day after the dismissal.
The application was not made within 21 days of the date the dismissal took effect. I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under s 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.[3] 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 needed to have been made by midnight on Thursday, 26 October 2023. The delay is the period commencing immediately after that time until 12:02 AM on Friday, 27 October 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
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.[5]
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.[6]
The Applicant filed submissions of fact on the reasons for his delay[7]. At the hearing he adopted those submissions as true and correct in his affirmed evidence. Those submissions were:
“After my last day at Securitas it then took me a few days to take it all in, that Securitas was now my former employer and after speaking to friends and family regarding my situation, it was at that time that i was made aware that I would only have 21 days to lodge a Fairwork case.
I had engaged for professional representation from a 3rd party as I believed this approach would ensure that the submission would be done correctly as the entire process is unfamiliar to myself. The individual/3rd party I had engaged to speak on my behalf was Tom Koletsos from ‘Just Relations Consultants' …
I first contacted Tom Koletsos by phone on 16/10/2023 where I had left a voicemail for him. I received a return call on 18/10/2023. After discussing my situation and Tom advising his terms and conditions. Once agreed to Tom requested for my documentation regarding this submission.
Correspondence continued over the following days as I continued to provide Tom with documentation he requested.
24/08/2023(sic) Tom advised me that no longer interested in representing me for my Fair work case but did offer to lodge the F2 form as he understood that he had not left me much time to find an alternative solution and would contact me the next day to see if I wanted to pursue or not.
25/08/2023(sic) I provided Tom all the details that he requested during our phone call for him to fill out the F2 form to lodge with Fairwork. he advised that there were a couple of items that he would need to follow up to lodge the claim and would do so the following day.
I reiderated (sic.) the importance of having the F2 form lodged before the deadline of 11:59PM on the 26/08/2023 as i did want to pursue the matter.
27/08/2023(sic.) I was advised that he had lodged the Fairwork submission, but that he had lodged my issues a few minutes after midnight. I believe it was lodged at 12:06AM on 27/08/2023. I was not contacted by Tom at the actual time of lodgment.
I was extremely upset and disappointed with the way Tom conducted himself, as the few minutes late seemed like it was only a bother to myself.”
The Respondent’s submission on reason for the delay are essentially:
“… the Applicant states that it took him “a few days to take it all in” and after speaking to friends and family he became aware he only has 21 days to lodge a claim. He then goes on to say that he first contacted Mr Koletsos on 16 October 2023. Even on a light interpretation, “a few days” post the 5 October 2023 final working day, the Applicant has not and does not demonstrate any urgency to act upon a known expiry period for lodgement of a claim.
In addition to the above, the Applicant was advised on 25 [October] 2023 that his nominated representative no longer wanted to represent him.
The Applicant has not provided any evidence to support that he had explicitly instructed the former representative to file the response on his behalf or that the former representative agreed to file the response on his behalf.
The Applicant was aware the former representative no longer wanted to represent him at least two days before the due date, therefore, the Applicant had enough time lodge the application before 27 October 2023 himself.”
A good summary of the approach to representative error for the purposes of an extension of time application is contained in the Full Bench decision in OfficeWorks v. David Anthony Parker [2014] FWCFB 5779 at paragraph [25]:
(i)Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii)A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless, and delay occasioned by the conduct of the applicant.
(iii)The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged (emphasis added).
(iv)Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.
Consideration and findings
From 16 October 2023, the Applicant placed the filing of his application in the hands of a paid agent. On 24 October 2023, the agent informed the Applicant that he no longer wished to act for him but offered to file his Form F2 application.
The Respondent’s argument the Applicant “did not provide any evidence he had explicitly instructed the agent to file a response on his behalf” is not correct. The Applicant, in the submissions of fact he adopted in evidence, affirmed that on 25 October 2023 he had reiterated the importance of filing the application on time. It transpired the paid agent filed the application late on 27 October 2023. The filing of the application at 12:02 AM by Mr. Koletsos is suggestive of an attempt to comply with the deadline which failed by a very narrow margin.
Consistent with the approach of the Full Bench in Parker, the Applicant was blameless in the late filing. The two-minute delay can be attributed to the agent. It is extraordinary that an agent could inform a potential applicant they no longer wish to act for them, take on the responsibility of filing the application, and then fail to do so in time. In those circumstances the representative error as the reason for the delay counts towards exceptional circumstances for the purposes of s 394(3).
Did the Applicant first become aware of the alleged dismissal after it had taken effect?
The Applicant asserts he was forced to resign from his employment by reason of repudiatory conduct of Respondent under s 368(1)(b). The Respondent maintains the Applicant resigned of his own volition.
It is not contested the Applicant sent an e-mail resignation on 28 September 2023 giving a weeks’ notice to 5 October 2023. He was therefore aware of the cessation of employment from the date of his resignation letter on 28 September 2023 prior to the cessation of his employment on 5 October 2023.
What action was taken by the Applicant to dispute the dismissal?
It was not contested the Applicant took no action to dispute the dismissal prior to the lodgement of the application.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent conceded that it suffered no prejudice due to the two-minute delay in the filing of the application.
What are the merits of the application?
The Applicant asserts he was forced to resign from his employment by reason of repudiatory conduct of the Respondent under s 368(1)(b). The Respondent maintains the Applicant resigned of his own volition on 28 September 2023.
Applicant’s evidence on constructive dismissal
The Applicant filed a series of documents which included copies of print outs from the SIMPRO system (which is used to allocate staff to jobs), e-mails to his direct supervisor Joe Gregan, and Microsoft Teams chat documents with Naina Bhamara about the lack of progress towards resolution of his various grievances.
The documents included an e-mail dated 21 August 2023 to Mr. Gregan:[8]
“Hi all
I would like to bring to your attention a few things that have happened over the last few weeks. These issues include:
*Being disregarded and excluded as being a member of the team regarding opportunities at work.
*Provided minimal information on some works and provided no support when completing works. When raising issues being told that 'I'm there's only ever problems on my jobs'
*Scrutinised and made to feel that when I voice my opinion that it holds little to no merit and is less important or valuable than others in the team.
*Excluded from the "Vic Team" regarding working opportunities.
*Other times being isolated to solely participate completing certain tasks. (Job will only be completed by myself, no one else would be scheduled for that job regardless of others schedules etc)
*Singled out from the other team members regarding working conditions and treated to be less important or to have less worth than other staff members. These issues have left me feeling putdown, made to feel unimportant, irrelevant, and unincluded as part of the Securitas team.”
The Applicant also filed a further e-mail sent to Mr. Gregan on or after 19 August 2023:[9]
“In summary I have been at Securitas for best approximately 5 years. I have enjoyed my time here; I take pride in working here and have always conducted myself to the highest standard and the best of my abilities.
I do not know why in these last few weeks these issues occurred but as they have continued to occur. This is now having an impact to both my work and family life and has created a great deal of stress and anxiety, the feeling of having little worth as a team member and Securitas employee. I am being made to feel like I am a nuisance to have at work and that there's no work that I'm capable of doing.
I do not know why I'm not a part of email chains when works are offered to ALL other members of the team for overtime works outside of regular hours and weekends?
Why others in the team are offered opportunities when things are 'quiet' to then spend their work hours completing internal Securitas modules or have now been working on our Construction projects such as Microsoft Data Center?”
If other's have been offered this without being 'asked to take RDO's', why has this not been offered to myself?
Why am I being FORCED to take leave when Securitas have labour hire being used on projects such as Microsoft Data Center?
Sub-contractors are still being used to complete small works and other technicians are needing to working over or having to leave a job to attend another, then return to the original job and all others being offered to work scheduled overtime?”
The Applicant also filed a record of a Microsoft Teams chat commencing on 5 September 2023 between the Applicant and Naina Bhambra. In that record the Applicant is attempting to progress his various complaints through Human Resources.[10] Those documents included the following exchange:[11]
“Sean Rojas
Have not heard or had any update from anyone regarding what is going on?
Naina Bhambra
Mediation? There is a shortage of readily available mediators. I am working on this in the backend, i am not sure when i will be able to appoint someone.
Sean Rojas
So in the mean time?
Naina Bhambra
What about working conditions? What has happened there? I thought Antonio and you were working your next project?
I am only handling the mediation organisation, I don’t have any other updates for you. Sorry.
In the meantime, you continue to work with your people leader, Antonio.
Sean Rojas
And human resources are for?
Naina Bhambra
what support do you require from us, Sean?
Sean Rojas
none, I guess.
Naina Bhambra
Once a mediator is organised, they will be in contact. These things take time, and it is not a quickfix, sorry. The person doing the mediator needs to have the right skills and qualifications to be able to handle this. We cannot just assign anyone random to mediate.
Sean Rojas
How long has it been already?
Naina Bhambra
It’s been 2 weeks plus.
Sean Rojas
Are we seriously saying that if it took 3 months and thats an acceptable time frame to deal with
Naina Bhambra
I thought you and Antonio are working together on your projects.
Sean Rojas
I thought mediation was being organised
I feel like nothings been organised
Naina Bhambra
Sorry, I deny this. I spoke to you and Antonio a fortnight ago and we agreed to a mediation. And I have been trying to get this organised, like I said, it takes time.
Sean Rojas
My complaint has gone on unanswered and ignored.
Naina Bhambra
Sorry, that is your feeling and l am unable to change that, but I have been speaking to consultants trying to get this sorted.
Sean Rojas
Brushed off again.
Naina Bhambra
Sorry that’s how you feel. Once, I have organised mediation, the mediator will get in contact with you and the other parties.
Sean Rojas
Guess it’s hard to see what’s being done when you’ve been excluded from all.
So you haven’t organised a mediator?
Naina Bhambra
I have, its being appointed, it takes time.
I will get Antonio to reach out to you if you still have concerns with Joe.
Sean Rojas
So i have brought these issues to everyone’s attention on at least 3 separate occasions, we haven’t had a single "formal discussion"" nothing has been registered anywhere and I’m just told to sit tight were doing something
Naina Bhambra
Antonio had a conversation with you already, a formal one.
Sean Rojas
which was?
Nothings minuted?
Naina Bhambra
If you want a formal conversation - I will get Antonio to organise this.
Sean Rojas
Thanks
I thought I was doing the right thing in taking the channels I did to raise the issues I had but it really feels like it
Naina Bhambra
I am sorry you feel like this, but we have done everything we can from our end in HR and Safety, and we will be organising a mediator to have vou and Joe talk it out.
Sean Rojas
In the simplest form Naina, I have been given 3 tasks to complete in the last 4 weeks, i have nothing ever assigned to myself, i hear from no body in the business, Antonio occasionally, it’s evident that for some reason nobody knows what to do with me or how to go address the situation”
There is a further excerpt marked “Thursday 16:51”[12] which I assume is Thursday 7 September 2023, where the Applicant has typed:
“This all makes no sense in fact it builds upon my example for constructive dismissal. They (sic.) way my concerns raised have been reacted to voluntarily.”
Three weeks later, at 5:51 PM on 28 September 2023, the Applicant sent the following group e-mail with the subject “Resignation”.
“I am writing to formally announce i am providing notice of my resignation from my position as a Security Technician at Securitas effective the Thursday, 5th of October (1 week). Through years I have thoroughly enjoyed my time at Securitas and appreciate the opportunities and experiences I have gained during my time here and have had the pleasure of working with some amazing people.
This decision has not been taken lightly, and it comes after careful consideration of my personal and professional goals. I believe that this step is necessary for my career growth and development. I am grateful for having been given the chance to work with my colleagues during my time here. I look forward to staying in touch and hope to cross paths with you all in the near future.
Thank you once again for the opportunities I have had here, and I wish Securitas continued success in all its endeavours.”
Respondent’s arguments against a constructive dismissal
The Applicant did not adduce evidence on the circumstances of the complaints raised or grievances of the Applicant but relied on the fact of the resignation.
In its Form F3 response, the Respondent “denied it forced the Applicant to resign”
and asserts “the applicant voluntarily resigned on 28 September and the last working day was on 5 October 2023”. It also denied “it had engaged in unwarranted treatment and any failure to act or any unwarranted treatment causing the Applicant to resign”.
It addressed the resignation in its submissions in support of its contention that the Applicant voluntarily resigned:
“The Applicant was not dismissed. The Applicant resigned on 28 September 2023 and his final working day was 5 October 2023. The Applicant’s resignation email was provided with the Respondent’s Form F3.
The Applicant served out his notice period after he tendered his resignation. The Applicant stated his reasons for resigning were “after careful consideration of [his] personal and professional goals” and he resigned for his own “career growth and development.”
The Respondent denies it forced the Applicant to resign. The Respondent acknowledges the Applicant raised workplace concerns throughout his employment; however, these concerns were either addressed or being addressed through ongoing engagement.”
Approach on merits consideration for the purposes of s 394(3)
Merits consideration for the purposes of an extension of time was discussed in Craig Thomson v. Linx Cargo Care Pty Ltd[2022] FWCFB 40:
[33] In Long v Keolis Downer T/A Yarra Trams,[13] (Long) a Full Bench of the Commission reviewed the approach taken in Kornicki and observed:
“[67] The Applicant contends that he was only required to establish that his substantive unfair dismissal application was ‘not without merit’ and refers to Kornicki v Telstra Network Technology Group (‘Kornicki’) in support of this proposition. In Kornicki the Full Bench considered that in determining whether to grant an application to extent time primary consideration should be given to two factors:
· whether there is an acceptable explanation for the delay; and
· the merits of the substantive application.
[68] As to the merits of the substantive application, the Full Bench said:
‘If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’
[69] The above observation needs to be seen in the context of the legislative framework at that time. In Kornicki the Full Bench was construing s.170CE(8) of the Workplace Relations Act 1996 (Cth) which provided that:
‘The Commission may accept an application that is lodged out of time if the Commission considers that it would be unfair not to do so’.
[70] The Full Bench observed that:
‘…s.170CE(8) is intended to convey an approach to the exercise of the Commission’s discretion which is more generous to applicants than that which prevailed under the former s.170EA(3)(b)… The central consideration in determining whether or not an out of time application should be accepted is whether it would be unfair to the applicant not to extend the time limit’.
[71] The discretion to extend time in s.394(3) is not enlivened on the basis of a finding that it would be ‘unfair not to do so’; rather the Commission must be satisfied that ‘there are exceptional circumstances’. For the consideration in s.394(3)(e) to weigh in favour of such a finding it must be shown that there is some merit in the substantive application. The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application. (emphasis added)
[72] In considering the merits of the substantive application for the purpose of s.394(3)(e) the Commission is not in a position to make findings of fact on contested issues unless evidence is called in respect of these issues. And, as the Full Bench observed in Kyvelos v Champion Socks Pty Ltd, evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application: ‘In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. ‘Though this observation was made in relation to s.170CE(7) of the Workplace Relations Act 1996 (Cth) it is apposite to the consideration of the merits in s.394(3)(c).” (emphasis added).
[34] We observe that a finding that the consideration established by s.394(3)(e) was a “neutral consideration” should be made with some caution in the context of a merit finding of the kind made by the Deputy President. It may be, in a given case, that it is not possible to draw any conclusions about substantive merits. A preliminary view, as expressed by the Deputy President, that the substantive application is not without merit (that is, not meritless) but no more would meet the approach outlined in Kornicki as clarified in Long. On the other hand, it may be possible to make a more definitive preliminary assessment about merits, or lack thereof, and this would then be a factor going to weight in the overall assessment required by s.394(3) of the Act.”
Consideration of the merits
Some of the evidence before me suggests the Applicant may not have been “forced to resign because of the conduct or course of conduct engaged by his employer” as required under s386(1)(b), including:
· The three-week delay between the conduct of the Respondent which the Applicant claims forced him to resign and the resignation itself;
· The text of the resignation: “This decision has not been taken lightly, and it comes after careful consideration of my personal and professional goals”: which, on its face, attributes the dismissal to the Applicant and provides his reasons for the resignation; and
· The fact the Applicant gave a week’s notice which is dissonant where the Applicant claims he was forced to resign.
However, despite the text of the resignation and those particular circumstances, I cannot reach a concluded view on whether there was a constructive dismissal without hearing evidence of the full factual context in which the resignation occurred, and the conduct of the Respondent up to the point of the resignation.
The evidence provided by the Applicant on the conduct of the employer is limited to e-mails, Microsoft Teams chats and excerpts from the SIMPRO system. Some of this material hints at conduct which might support an argument the Applicant was forced to resign under s 386(1)(b).
The Respondent, unsurprisingly for an extension of time application, called no evidence in relation to its conduct or the grievances the Applicant complained of in the e-mails, and Microsoft Teams documents.
In Australian Hearing v. Perry,[14] the Full Bench noted at paragraph [41]:
“…in cases involving resignation the factual enquiry necessary to determine whether there was a termination of employment at the initiative of the employer often overlaps with the factual inquiry necessary to determine whether, if there was such a termination, it was unfair.”
This is an example of just such a case. Without a full consideration of evidence on the conduct of the employer to provide a context in which that resignation was made, I am not in a position to decide either whether there was a constructive dismissal, or whether the dismissal was unfair.
In the absence of a full hearing, 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 it is not possible to make an assessment of the merits of the application. It follows I find the merits are a neutral to a finding of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position
Neither party made submissions in relation to this factor.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
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.[15] 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.[16]
Reason for delay
I find the two-minute delay in the filing of the application was entirely the fault of his former paid agent who had undertaken to file the Form F2 application despite indicating he no longer wished to act for the Applicant. It was the Applicant’s sworn evidence the day before the 21-day deadline he had contacted the paid agent and had “reiterated the importance of having the F2 form lodged before the deadline…”.
Consistent with the analysis in Parker, the Applicant was blameless for the delay and therefore the representative error can support a finding of exceptional circumstances as the reason for the delay.
Awareness of the dismissal
It is not contested the Applicant resigned on 25 September 2023 and gave a week’s notice. This consideration is not a factor in a determination of “exceptional circumstances”.
Any action to dispute the dismissal
It is not contested the Applicant took no action to dispute the purported dismissal. This consideration counts against the Applicant in a determination of exceptional circumstances.
Prejudice to the employer
The Respondent conceded in the hearing it suffered no prejudice by reason of the short delay. This consideration supports a finding of exceptional circumstances.
Merits
There are aspects of the circumstances of the resignation that seem to support the Respondent’s argument the Applicant was not dismissed. Conversely, the material relied on by the Applicant hints at conduct of the employer that could reach the repudiatory character required of a constructive dismissal under s 386(1)(b).
I cannot make a determination of either the merits or the no dismissal argument without the benefit of a full hearing. In those circumstances the merits are a neutral consideration for exceptional circumstances.
Fairness as between the person and other persons in a similar position
No submissions were made with respect to this factor.
Consideration
The factors in favour of a finding of exceptional circumstances are the representative error as a reason for the delay and the lack of prejudice to the Respondent. The factor against is the lack of action by the Respondent to dispute the dismissal. The factors in s 393(3)(b), (e) and (f) are neutral.
The delay in issue here is two minutes. The Respondent claims no prejudice arising from the delay. The representative error was in circumstances where the Applicant had reminded the agent of the deadline, the agent had taken on responsibility to lodge it even though he had stated that he did not wish to act for the Applicant. Despite the warning and volunteering to lodge it, Mr. Koletsos still filed the application late. The representative error is an exceptional circumstance on its own to justify an extension of time under s 394(3).
Conclusion
Taking into account the exceptional circumstances and the object of the Act to ensure a “fair go all round” in s 381(2), I am satisfied it is appropriate to extend the period for the application to be made to 27 October 2023.
COMMISSIONER
Appearances:
Mr. Sean Rojas, the Applicant, for himself
Ms. Jewlia Holt and Mr. Richard Laufer for the Respondent
Hearing details:
7 December 2023
Microsoft Teams
[1] 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.
[2] 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; Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Exhibit A1 at pages 12 to 15 in the Digital Court Book (DCB).
[8] DCB p. 35
[9] DCB p. 41
[10] DCB pp. 43 to 52
[11] DCB pp. 43 to 47
[12] DCB p. 49.
[13] [2018] FWCFB 4109.
[14] [2009] AIRCFB 680.
[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[16] Ibid.
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