Stephen Truscott v Churches of Christ Care

[2023] FWC 2207

[2023] FWC 2207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stephen Truscott
v

Churches Of Christ Care

(U2023/6358)

DEPUTY PRESIDENT LAKE BRISBANE, 7 SEPTEMBER 2023

1. Mr Stephen Truscott (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with the Churches Of Christ Care (the Respondent).

1. The Applicant commenced his employment with the Respondent on 3 October 2020 and was notified of his dismissal on 21 June 2023. The dismissal was effective on the same day.

1. The Applicant lodged his application on 13 July 2023. The application was lodged 1 days outside the statutory time limit prescribed by s.394(2) of the Act.

1. The question before me is therefore whether the Applicant should be granted an extension of time to lodge his application pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.

1. Directions were issued and material was filed by each party.  A hearing was held before me on 1 September 2023.

Should a further period be granted?

1. Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

“(3)       The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)         the reason for the delay; and

(b)whether the person first became aware of the dismissal after it had taken effect; and

(c)         any action taken by the person 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 person and other persons in a like position.”

1. The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1]  In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

1. Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

1. For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.

Consideration

Reason for the delay (s.394(3)(a))

1. The Act does not specify what reasons for delay might suggest allowing for a further period of time, however it must be an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]

1. It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

1. The Applicant stated the following for the reasons for delay:

‘In my application, I was summoned to a meeting with Jeff Davis and Claudia Goiack on the 21st of June between 1200-1300 and had myself and union support person. I made an application for unfair dismissal on 13th July and paid fee and this was submitted. I believe I submitted this paperwork within allocated time frame as, Fair Work Act 2009 says that an unfair dismissal application must be made within 21 days after the dismissal took effect. And this ACT would not come into effect until 22nd June, and I made this application within this 21-day time frame.’

1. In Giles v Coal Train Australia Pty Ltd, Deputy President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.[7]

1. I do not find it sufficient that the miscalculation of the 21-day time frame is an exceptional circumstance, especially considering the Applicant had support and contact with a member from the union at his show cause meeting. The Applicant was aware of the unfair dismissal process and was starting to fill out his Form F2 at least five days after the dismissal. He was also provided with links to the Fair Work Commission website from the union official.

1. The Applicant had also stated that he was also suffering depressive and anxiety symptoms and was taking medication to deal with a workplace accident which prevented him from submitting the Application on time. The Applicant did not provide evidence regarding the symptoms of his anxiety and depression.  However, I do take this into account for the reason for delay.

1. The Respondent had provided evidence of the Applicant’s workplace injury which determined that the surgery was 14 weeks prior to the dismissal of the Applicant, and it was marked that he was suitable for office work.  

1. In consideration the above, the Applicant did have support in filing the application and therefore this consideration does not weigh in favour of granting an extension of time.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

1. The Applicant was aware of his dismissal on 21 June 2023 and received a termination letter confirming his dismissal. Furthermore, the Applicant was aware of the 21-day timeframe through advice from his union support member. The Applicant was aware of his dismissal date well within the 21-day period.

1. This consideration does not weigh in favour of granting an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

1. The Applicant did not take actions to dispute the dismissal.  

1. This consideration does not weigh in favour of a finding of exceptional circumstances.

Prejudice to the employer (s.394(3)(d))

1. The Respondent did address that an extension could potentially cause a degree of prejudice. I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

1. In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission 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.”

1. Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

1. The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[9]  In McBride v JA Krieger Forestry Services[2021] FWC 6284 at [5], Deputy President Colman found that a person being unaware of the requirement to lodge an unfair dismissal application within 21 days of the dismissal is not an acceptable reason for delay.

1. This consideration does not weigh in favour of a finding of exceptional circumstances.

Conclusion

1. Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. 

1. I Order that the application be dismissed. 

DEPUTY PRESIDENT

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

[7] Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at 38.

[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[9] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].

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