Shane Archer v Focus Demolition and Asbestos Removal Pty Ltd
[2022] FWC 1077
•16 MAY 2022
| [2022] FWC 1077 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Shane Archer
v
Focus Demolition and Asbestos Removal Pty Ltd
(U2022/3177)
| DEPUTY PRESIDENT BINET | PERTH, 16 MAY 2022 |
Application for an unfair dismissal remedy - Extension of time application. Application by the Respondent pursuant to s 399A of the Fair Work Act – Application dismissed.
On Tuesday 15 March 2022, Mr Shane Archer (Mr Archer) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Focus Demolitions and Asbestos Removal Pty Ltd (FDAR) on 15 February 2022.
An unfair dismissal application must be lodged with the FWC within 21 days after the dismissal takes effect. The FWC may only allow a further period for lodgement in exceptional circumstances.
Mr Archer has made an application for an extension of time to file his application. FDAR oppose the application.
Directions were issued to parties on Friday 8 April 2022 which required Mr Archer to file his materials in relation to the question of whether to extend the time for filing of his Application (Extension of Time Application) by 4pm (AWST) Friday 15 April 2022 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.
Mr Archer failed to file any materials in accordance with the Directions.
On Tuesday 19 April 2022, Chambers wrote to Mr Archer and reminded him that his materials in relation to the Extension of Time Application were overdue.
Later the same day Mr Archer called Chambers and left a voice message but did not explain why his materials had not been filed.
On Wednesday 20 April 2022 FDAR made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Archer had failed to comply with the Directions (Dismissal Application).
On Thursday 21 April 2022 Mr Archer was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on 22 April 2022. Chambers advised Mr Archer that if he did not file submissions and evidence by 4pm Thursday 22 April 2022 the Application would be dismissed pursuant to section 399A of the FW Act.
At 11am on Friday 22 April 2022, Mr Archer forwarded Chambers an email which he sent to the Chambers of Vice President Catanzariti on 31 March 2022. This email read:
“ Shane Archer
The reason I lodged my claim late.
I worked very hard for Focus Demolition while with them.
I got a phone call was told my best mate who was a brother had just died Friday 11 February, worked Saturday caught up on sleep Sunday worked Monday realised Tuesday he was gone phoned in Tuesday said I would not be at work went to work Wednesday and the boss sacked me on the spot with not even a warning. With my head not in a good place and funeral arrangements to make which took a few weeks. Got my head back together rang a few lawyers who never said a word about only having 21 days to lodge a claim, then my cousin got me a lawyer and he told me that I only had 21 days to lodge a claim he told me to lodge a claim even though it was a week past date and we are at this point now. Shane Archer”
At 12.15pm on 22 April 2022 Chambers wrote to Mr Archer explaining that his email did not constitute sufficient compliance with the Directions. The email from Chambers:
a.explained in detail the materials Mr Archer was required to file;
b.drew his attention to various resources available on the FWC website to assist him prepare those materials; and
c.attached various templates to assist him comply with the Directions.
The mail from Chambers also informed Mr Archer that he should file his materials as soon as possible and by no later than 4pm (AWST) Tuesday 26 April 2022.
At 2:02pm (AWST) Friday 22 April 2022, Mr Archer forwarded Chambers his Form F2 -Unfair Dismissal Application (Form F2) filed in the FWC on 15 March 2022.
At 2.43pm (AWST) on Tuesday 26 April 2022 Chambers wrote to Mr Archer informing him that forwarding his Form F2 was not sufficient compliance with the Directions and reminding him that he was required to file his materials in relation to the Dismissal Application and the materials set out in the Directions no later than 4pm that day.
In the absence of a response from Mr Archer at 5:08pm Chambers wrote to Mr Archer reminding him again to file his materials in accordance with the Directions and to file his response to the Dismissal Application materials as soon as possible and by no later than 4pm (AWST) Thursday 28 April 2022.
My Associate spoke to Mr Archer by telephone twice on Thursday 28 April 2022 to clarify what materials he was required to file.
At 12.28pm (AWST) Thursday 28 April 2022, Mr Archer provided Chambers with a signed and dated witness statement of one page which briefly addressed some of the criteria relevant to the determination of his application for an extension of time.
Mr Archer filed no submissions or evidence in relation to the Dismissal Application.
The materials filed by the parties did not disclose any factual dispute. In these circumstances, with the consent of the Parties, I have determined whether to grant Mr Archer an extension of time to file the Application and the Dismissal Application solely on the materials filed by the parties without a hearing.
Consideration
Section 399A of the FW Act provides:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
Mr Archer failed to file the materials he was directed to file by the dates specified in the Directions.
As at the date of this Decision Mr Archer has filed no submissions or evidence in relation to the Dismissal Application to explain why his witness statement was not filed in accordance with the Directions.
I am satisfied that Mr Archer has unreasonably failed to comply with directions of the FWC relating to this Application.
For completeness I have also considered whether I would have granted the extension of time if Mr Archer had filed his materials on time.
Subsection 394(2) of the FW Act provides 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 FWC allows pursuant to subsection 394(3) of the FW Act.
The 21 day period does not include the day on which the dismissal took effect.”[1]
If 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]
In his witness statement, Mr Archer states that he was dismissed on 15 February 2022.
The date 21 days after the dismissal took effect was Tuesday 8 March 2022.
The Application was therefore filed seven days out of time on 15 March 2022.
The FW Act allows the FWC to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[3] 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.[4]
Section 394(3) of the FW Act requires that, in considering whether to grant an extension of time, the FWC must take into account the following:
- 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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[5]
The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted.[6]
Having taken into account the factors set out in sub-section 394(3) of the FW Act, ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one.[7]
The requirement that there be exceptional circumstances before the time for the lodgement of an application can be extended under section 394(3) of the FW Act contrasts with the broad discretion conferred on the FWC under section 185(3), to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Were there reasons for the delay?
The onus is on Mr Archer to provide a credible reason for the delay.
While the delay to be considered is the period subsequent to the expiration of the 21 day period, the circumstances from the time of the dismissal may be relevant in determining whether the reason for the delay constitutes exceptional circumstances.[8]
In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[9] the Full Bench explained the correct approach by reference to the following example:
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
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.[10]
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.[11]
The FW Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the FWC have referred to an acceptable or reasonable explanation.
Mr Archer provided the following reason for the delay:[12]
“I worked very hard for Focus Demolition while with them.
I got a phone call was told my best mate who was a brother had just died Friday 11 February, worked Saturday caught up on sleep Sunday worked Monday realised Tuesday he was gone phoned in Tuesday said I would not be at work went to work Wednesday and the boss sacked me on the spot with not even a warning. With my head not in a good place and funeral arrangements to make which took a few weeks. Got my head back together rang a few lawyers who never said a word about only having 21 days to lodge a claim, then my cousin got me a lawyer and he told me that I only had 21 days to lodge a claim he told me to lodge a claim even though it was a week past date and we are at this point now.”
In the absence of exceptional circumstances whether an application is filed hours, days, months or years late is irrelevant. As Deputy President Gostencnik noted Ozsoy v Monstamac Industries Pty Ltd:[13]
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
Ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance.[14]
No doubt the loss of his friend would have caused Mr Archer distress and provides an explanation for some of the delay. However, Mr Archer has not explained why it fell upon him to make the funeral arrangements. He has indicated that the death occurred on 11 February 2022 and says that it took ‘several weeks’ after he was dismissed on 16 February 2022 to make the funeral arrangements. It is unclear why the funeral would be delayed three to four weeks.
Where an applicant has given clear and timely instructions to their representative to file their application, the applicant is generally entitled to rely on the representative to carry out those instructions.[15] There is no representative named in Mr Archer’s Form F2 – Unfair Dismissal Application. Nor has Mr Archer identified which lawyers he says he contacted. There is no evidence before me that Mr Archer gave clear and timely instructions to those lawyers.
I consider the evidence before me provides a reasonable explanation for some but not all of the delay. The absence of an acceptable explanation for all of the delay weighs against a conclusion that there are exceptional circumstances.
Did Mr Archer first become aware of the dismissal after it had taken effect?
Mr Archer was informed of his dismissal on 15 February 2022 and therefore had the full period of 21 days to lodge the Application. This factor weighs against Mr Archer being granted an extension.[16]
Did Mr Archer take action to dispute the dismissal?
Action taken by an applicant to contest the termination, other than by virtue of making the application will be relevant and may weight in favour of granting the extension of time.[17]
Mr Archer produced no evidence that he took any steps to contest his dismissal after it took effect other than to file the Application.
This factor weighs against Mr Archer being granted an extension of time.
Prejudice to the employer
Prejudice to the employer will go against the granting of an extension of time. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[18]
The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.
A long delay gives rise “to a general presumption of prejudice”.[19]
I cannot identify any prejudice that would accrue to FDAR if an extension of time were to be granted. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in consideration of whether there are exceptional circumstances. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.
Merits of the Application
If a claim has merits, this will weight in favour of the grant of an extension of time.[20]
In considering the merits of an application for an extension of time, the FWC is not normally in a position to make findings of fact on contested issues because to do so would require the parties in effect to present their evidentiary cases twice.[21]
Given the limited materials before me, it is not possible to make any firm or detailed assessment of the merits at this stage. As I am unable to determine whether the merits of the present case tell for or against an extension of time. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. This consideration is concerned with the importance of the application of consistent principles in cases of the same kind; however, cases of the same kind often turn on their own facts.[22]
As Commissioner Bissett observed in Murray v Ambulance Victoria at [48]: [23]
“In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.”
Neither party brought to my attention any relevant matter concerning this consideration, and I am unaware of any relevant matter. I, therefore, consider this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under section 394 of the FW Act, and all of the matters raised by Mr Archer, I am also not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
On the Application of FDAR and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.
An Order to this effect will be issued with this decision.[24]
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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[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] Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[4] Ibid.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [16].
[7] Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].
[8] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].
[9] [2016] FWCFB 349.
[10] Stogiannidis v Victorian Frozen Foods Distributors PtyLtd[2018] FWCFB 901, [39].
[11] Ibid.
[12] Email from Mr Archer to Chambers dated 31 March 2022.
[13] [2014] FWC 479.
[14] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14], Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].
[15] See, eg, Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759. See also Donohoe v QuickComms Australia Pty Ltd[2020] FWCFB 5426.
[16] Meek v Baycorp Pty Ltd t/a Baycorp Pty Ltd[2016] FWC 1291 at [15].
[17] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.
[18] Ibid.
[19] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.
[20] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[21] Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [14].
[22] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
[23] [2022] FWC 215.
[24] Print PR741058.
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