Steven Bradford v Lion-Beer Spirits & Wine Pty Ltd T/A Castlemaine Perkins

[2020] FWC 159

[2020] FWC 159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Steven Bradford
v
Lion-Beer Spirits & Wine Pty Ltd T/A Castlemaine Perkins
(C2019/4407)

DEPUTY PRESIDENT CROSS SYDNEY, 21 JANUARY 2020

Application to deal with contraventions involving dismissal - extension of time consideration.

[1] On 17 July 2019, Mr Steven Bradford (the Applicant) lodged a Form F8 General Protections Application involving dismissal pursuant to s.365 of the Fair Work Act 2009 Cth (the Act) (the “Application”). The Application stated that the Applicant commenced employment with Lion-Beer Spirits & Wine Pty Ltd t/a Castlemaine Perkins (ACN 008 596 370) (the “Respondent”) on 17 November 2017, and his employment had been terminated by the Respondent on 12 June 2019.

[2] General Protections Applications involving dismissal must be made within 21 days after a dismissal takes effect or in such further time that the Fair Work Commission (the “Commission”) allows. As the dismissal took effect on 12 June 2019, an application for a remedy should have been lodged by no later than 3 July 2018. The Application was therefore fourteen days late.

[3] Section 366 of the Act determines the permissible time limit for a general protections application. Section 366(1) of the Act provides:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).”

[4] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[5] It is clear from the structure of s.366(2) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[6] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances.

[7] On 12 August 2019, I convened a directions hearing to outline how the Commission would determine whether the Applicant would be granted a further period to make the Application. By consent, the Applicant and the Respondent agreed to a timetable for filing their Outlines of Submission, any witness statements and other documentary material on which they intended to rely. The Applicant and the Respondent also agreed that the Application would be determined upon the materials filed, unless either party made an application for a hearing of evidence, and that application was granted. In the directions hearing, I guided the Applicant and the Respondent to the five factors that must be taken into account pursuant to paragraphs (a) to (e) of subsection 366(2) of the Act as outlined below.

[8] The Respondent did request, and was granted, a short hearing in relation to part of the evidence. On 22 October 2019, there was some brief cross-examination of the Applicant, together with further submissions.

The Applicant’s Case

[9] On 26 August 2019, the Applicant filed an Outline of Submissions (the “Applicant’s Submission”) and two witness statements. Addressing the consideration of the reason for the delay, the Applicant’s Submission was as follows:

“(a) The applicant has good reason for the short delay, being a culmination of the below reasons:

(i) The applicant had to prioritise finding new employment in order to support his family. Please refer to paragraph 5(a)(i) of the Witness Statement of Mr Steven Bradford;

(ii) The applicant had been corresponding with Lion to obtain payslips and termination payments. Please refer to paragraph 5(a)(ii) of the Witness Statement of Mr Steven Bradford;

(iii) The applicant had been seeing a psychologist prior to the Dismissal and after and feels he was incapable of dealing with the Dismissal in the first weeks following his Dismissal. Please refer to paragraph 5(a)(iii) of the Witness Statement of Mr Steven Bradford; and

(iv) The applicant was unaware that he needed to lodge his application with Fair Work within 21 days from the date of Dismissal (and was also unaware of the date that was properly considered to be the date of his Dismissal) until he sought legal assistance on the 22nd day following his dismissal. Please refer to paragraph 5(a)(iv) of the Witness Statement of Mr Steven Bradford;

(v) Between the 22nd day following the dismissal (4 July 2019) and the date of the application, the applicant and his solicitors acted urgently. In this regard, it ought to be noted that, due to the complex factual background (heavily summarised herein), in order to prepare this application, the applicant’s solicitors were required to:

(i) have numerous telephone calls with the applicant to clarify the facts of the matter;

(ii) review 20 to 25 lengthy documents regarding the applicant’s employment;

(iii) give consideration to the grounds for the application, including jurisdictional issues; and

(iv) prepare this application,

Please refer to paragraph 5(b) of the Witness Statement of Mr Steven Bradford and paragraphs 2 to 11 (inclusive) of the Witness Statement of Mrs Jessica Jo-Anne Daniels.”

(collectively referred to as the “Reasons”)

[10] As to the other limbs of s.366(2), the Applicant’s Submissions were as follows:

“(b) Although the applicant has not disputed the Dismissal since being dismissed, he made it abundantly clear to Lion that he disputed all the Allegations and Further Allegations that were the basis for the Dismissal. The only reason he did not dispute the Dismissal directly to Lion is because they advised their decision was final. Please refer to the evidence attached the Applicant’s application.

(c) On the basis of the matters contained in the application, the general protections application is not without merit.

(d) There is no prejudice to the employer (due to the short length of the delay) and there are no other employees in similar positions that an extension would be unfair to.”

[11] In conclusion, relying on Nulty v Blue Star Group Pty Ltd 1 [2001], the Applicant submitted:

“1.7 The Applicant submits that some of the Reasons are common and some of them are uncommon. The uncommon reasons are the complex factual background of the matter (and consequences flowing from that set out herein) and the Applicant’s mental health condition (‘Uncommon Reasons’). The common reasons are the remainder of the Reasons set our herein, being the need to urgently find new employment, the need to liaise with the Respondent and the Applicant’s ignorance of the 21-day time limitation (‘Common Reasons’).

1.8 The Applicant submits that each of the Uncommon Reasons, produce a situation which is unusual or uncommon on their own and are enough for the circumstances to be considered as ‘exceptional’. However, if the Commission does not agree, the Applicant submits that the combination of the Reasons (even if all viewed as common), when taken together, ought to be seen as exceptional.

1.9 The Applicant notes that, although mere ignorance is not an exceptional circumstance, it does not mean that it cannot be added to the pool of circumstances which may be viewed together as unusual.”

The Respondent’s Case

[12] On 16 September 2019, the Respondent filed an Outline of Submissions with a number of annexures (the “Respondent’s Submissions”).

[13] As to the reason for the delay, the Respondent submitted that none of the Applicant’s four reasons for delay, either individually or collectively, constitute exceptional circumstances justifying the exercise of the Commission's discretion. Those four reasons are:

(a) The Applicant had to prioritise finding new employment;

(b) The Applicant felt incapable of dealing with the dismissal on account of stress caused by the disciplinary process;

(c) The Applicant had been attempting to obtain payslips and confirm his termination payments; and

(d) The Applicant was not aware that he needed to lodge his application within 21 days from the date of dismissal.

[14] Regarding prioritising finding new employment, the Respondent did not dispute that the Applicant may have had to search for alternative employment, and noted that was a matter which inevitably arises from a dismissal. Indeed, it was submitted it was likely that in almost every single dismissal scenario, the departing employee’s focus turns to finding new work. On that basis, it could not reasonably be contended that the need to source alternative employment constituted an exceptional circumstance.

[15] Regarding the assertion that the Applicant felt incapable of dealing with the dismissal in the first weeks following the dismissal, the Respondent’s Submission was as follows:

“However, it is not exceptional or uncommon that an employee would experience elevated emotions such as shock and hurt during a disciplinary process or as a result of being dismissed. Support for this contention can be found in Underwood v Terra Firma Pty Ltd[2015] FWC 1387, where Deputy President Sams held as follows:

‘[12] While I am sympathetic to the applicant's mental condition, ‘elevated levels of stress and anxiety consistent with an adjustment disorder’ do not positively demonstrate that the applicant was incapable of lodging his application, within the 21 day timeframe. Indeed, many dismissed employees suffer from elevated levels of stress and anxiety following termination of their employment. On one view, this is unexceptional, rather than exceptional. In Shaw v Australia and New Zealand Banking Group Limited TIA ANZ Bank[2015] FWCFB 287, the Full Bench, by majority (Watson VP and Smith DP) said at para [15]:

“[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual.”’

…”

(emphasis added)

[16] Regarding the assertion that the Applicant’s delay could be explained by his attempts to obtain payslips and confirm his termination payments, the Respondent noted how that assertion contradicted the Applicant’s assertions regarding his levels of stress and anxiety. The Respondent submitted:

“The fact that the Applicant chose not to take any steps to contest his dismissal (either with the Respondent or in the Fair Work Commission), was a matter for the Applicant. However, he clearly had the capability to exchange communications with the Respondent and others during this time period. By virtue of the Applicant's communications with the Respondent following the dismissal, the Applicant has demonstrated that he was not generally incapacitated during the period immediately following the dismissal.”

[17] For completeness, the Respondent noted that the communication regarding payslips and termination payments was not detailed and could not have in any way substantively affected his ability or availability to pursue a General Protections claim against the Respondent.

[18] Regarding the assertion that the Applicant was not aware of the need to lodge the Application within 21 days of dismissal, the Respondent noted it is uncontroversial that ignorance of the statutory time limit is not an exceptional circumstance. The Respondent noted the Applicant chose not to take any steps during the 21 days after his dismissal to:

(a) enquire about his rights;

(b) seek advice about his dismissal; or

(c) contest his dismissal (either with the Respondent or in the Fair Work Commission).

[19] As to the balance of the considerations in s.366(2), the Respondent submitted:

“(a) The Applicant concededthat no steps were taken following the dismissal to dispute the dismissal until after the 21 day time period had elapsed;

(b) The Respondent does not assert any particular prejudice arising from the Application being accepted out of the 21 day time limit;

(c) The Respondent's reasons for dismissing the Applicant are plainly apparent and none of the reasons relate to any of the complaints cited in the Application. The Respondent submits that the Applicant's case is without merit.

(d) Fairness between the Applicant and other persons in a like position is not a relevant factor in these proceedings.”

[20] In conclusion, the Respondent submitted the following:

“However, the most telling matter supporting the Respondent's position is that when the reasons for the delay are carefully considered, it becomes apparent that all of the reasons raised are essentially commonplace matters that will inevitably arise with almost every dismissal.

Whilst the Commission can certainly have sympathy for the position in which a dismissed employee finds themselves on being dismissed, the reality is that the Parliament is presumed to have proceeded on the basis that “an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion” and that “the timeframe to agitate applications was to be strictly limited”. Absent such steps taking place, the Parliament has clearly stipulated that an application can only proceed in exceptional circumstances.”

[21] On 26 September 2019, the Applicant’s representative informed my Chambers that the Applicant did not intend to file any materials in reply to the Respondent’s submissions. That representative ceased acting for the Applicant on 14 October 2019.

Consideration

[22] I will now turn to the matters to which regard must be had.

(a) The reasons for the delay

(i) Prioritising finding new employment

[23] In most circumstances, when an employee loses their job, they need to find a new job. As such, it cannot be said that the Applicant needing to look for alternative employment is exceptional.

[24] The Applicant’s witness statement stated that his need to find alternative employment was urgent in order to support his family. Providing for a family is an experience common to a large percentage of the workforce. The Applicant advanced no further evidence with respect to why his need to provide for his family was out of the ordinary course, unusual, special or uncommon.

(ii) The Applicant seeking payslips

[25] It is unclear in the Applicant’s submissions the relevance that the Applicant seeking payslips has when explaining why he was unable to also file the Application with the Commission. The extent of the submission seems to be that it was an endeavour that “took up a not-insignificant amount” of the Applicant’s time.

[26] The Respondent made the submission that the totality of this communication amounted to a text message sent on Friday 28 June 2019, and a 32 second phone call on 2 July 2019. During cross-examination, the Applicant stated he believed that he might have sent a further text message. Despite this, the Applicant conceded that his endeavours to obtain his pay slips would have taken no longer than approximately ten minutes.

[27] Even if the Applicant seeking payslips was to explain why the Applicant was delayed in filing the Application, it could not be said that any applicant seeking payslips from a former employer is an occurrence that is out of the ordinary course, unusual or uncommon.

(iii) The Applicant incapable of pursuing application

[28] The Applicant contends he did not have the mental capability to lodge the Application with the Commission due to an adverse reaction he had to the termination of his employment. The Applicant submitted that he saw a psychologist in the weeks following his dismissal. Annexed to the Application, the Applicant submitted a letter from his psychologist Stephen Mayers. Mr Mayers’ letter confirmed the Applicant sought psychological support on 4 June 2019 and 14 June 2019. Further the letter noted the Applicant reported significant distress regarding his treatment by his line managers and that he had been struggling to manage his stress levels due to the ongoing nature of the workplace dispute. During cross-examination, the Applicant testified he had spoken to his psychologist a number of times but only met with his psychologist in person on two occasions.

[29] With respect to an Applicant’s mental capability to prosecute a claim, two decisions of Deputy President Sams provide guidance as to whether, and in what circumstances, stress and anxiety that manifests in mental illness can constitute an exceptional circumstance. In Underwood v Terra Firma Pty Ltd[2015] FWC 1387, Deputy President Sams made the observation recorded at paragraph [15] above.

[30] In contrast to the above decision, in Scott v Steritech Pty Ltd t/a Steritech [2019] FWC 2970, Deputy President Sams found at [95] – [97]:

“[95] True it is that apart from the consultations on 16, 19 and 23 August 2018 with Dr Ikramova (within the 21 day period) there was no express medical evidence that Mr Scott was unable to undertake normal tasks during this period. In fact, as Steritech submitted, quite to the contrary; he was meeting with a lawyer, speaking by phone to Mr Trotman, had filed a workers’ compensation claim and spoken to Workcover during this period.

[96] However, from the uncontested evidence of Dr Slack, Mr Trotman, Mrs Scott and Mr Smith, and from my observation of Mr Scott when he was describing how he felt at the time, it could not seriously be said that Mr Scott had been functioning normally. To varying degrees, the witnesses (and Dr Slack) refer to a person who was not coping at all with having been dismissed. The fact he was hospitalised for a month in September/October 2018 was obviously the most severe manifestation of a dismissed employee progressively reaching a point of almost total despair. The respondent did not (correctly, in my view) submit, or even speculate, that his deteriorating mental condition was not a direct result of his dismissal.

[97] That being so, I am satisfied that the psychological impact on Mr Scott as a result of his dismissal, after 15 years’ service, was not in the same ‘ball park’ as the usual stress and anxiety experienced by most dismissed employees in the post dismissal period. It follows that I find Mr Scott’s circumstances fell well outside what might objectively be considered to be a person’s usual, ordinary or commonly encountered post dismissal circumstances. This factor tells in favour of a finding of ‘exceptional circumstances’ and the granting of an extension of time.” (emphasis added)

[31] It is unfortunate the Applicant had an adverse reaction to the termination of his employment, however the manifestation of that illness was not in any way the level of severity that would take it outside the levels of stress and anxiety usually felt by a dismissed employee. On the evidence before me, the Applicant’s reaction to his termination did not reach a level which would objectively be considered unusual, abnormal or uncommon.

(iv) The Applicant was unaware the ordinary 21 day timeframe

[32] The Applicant has submitted that before 4 July 2019, when he sought legal advice, he was unaware of the ordinary 21 day timeframe prescribed by s.366(1)(a) of the Act.

[33] A Full Bench of Fair Work Australia in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 stated at [14]:

“Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

[34] Consistent with the decision in Nulty, it cannot be said that the Applicant’s ignorance with respect to the 21 day statutory timeframe is an exceptional circumstance.

(v) Actions of the Applicant’s Solicitors from the 22nd day

[35] It is important to note that, while the Applicant waited until 4 July 2019, one day after the statutory deadline, to seek legal advice, he thereafter further delayed for thirteen days before filing the Application. As the Application was not filed until 17 July 2019, it will assist the Applicant in satisfying the Commission that there were exceptional circumstances if he can also provide an acceptable explanation for that further thirteen day period 2. The Applicant advanced a reason for this period, namely that “complex factual background” caused delay in the Applicant’s representative preparing the Application.

[36] The Applicant contends this period can be explained by the Applicant’s solicitor conducting a number of phone calls to clarify the facts, reviewing 20 to 25 lengthy documents regarding the Applicant’s employment, considering the application of the law to the facts, and drafting the Application. The Applicant provided a chronology of the actions his representative took during the thirteen day period by way of a witness statement of his representative. That Statement provided:

“1. I am a solicitor in the employ of Ramsden Lawyers and have carriage of this matter on behalf of the Applicant.

2 On 4 July 2019, I received a telephone call from the Applicant who advised me of his dismissal from his employment with the Respondent and the surrounding circumstances as set out in the Applicant's Application. I advised the Applicant that there is a time limitation of 21 days from the date of dismissal to make a claim for unfair dismissal or general protections in the Fair Work Commission and that time had surpassed. I further advised that, in limited circumstances, the Fair Work Commission will make an order extending the 21-day time limit on application from an Applicant and we needed to provide the Applicant with advice regarding whether he had any prospects of succeeding on such an application. The Applicant wanted to proceed with our advice.

3 On 5 July 2019, I sent the Applicant a client agreement which the Applicant signed and returned on same day and paid our retainer. The Applicant also immediately provided us with instructions we requested which allowed me to commence drafting an urgent letter of advice for the Applicant.

4 On 8 July 2019, I contacted the Applicant by telephone and email to seek instructions regarding the reasons for his delay in seeking legal advice.

5 On 9 July 2019, I contacted the Applicant by email to seek further instructions regarding his dismissal including a detailed timeline of facts.

6 On 10 July 2019, the Applicant provided me with a four-page chronology of events and fourteen documents to review and advise on.

7 On 12 July 2019, the Applicant provided me with a further eight documents to review and advise on including a detailed spreadsheet.

8 On 15 July 2019, I provided the Applicant with a detailed letter of advice and sought his instructions as to whether he wanted to proceed with an application for general protections.

9 On 15 July 2019, the Applicant provided me with instructions to proceed with an application for general protections and an extension of time ('Application') and I commenced drafting the application on that date.

10 On 17 July 2019, I provided the Applicant with the draft Application and filed subsequently filed the Application on same date after the Applicant provided his instructions to do so.

11 I consider that it was wholly necessary to provide the Applicant with well-considered advice prior to him lodging his Application to determine if he wanted to proceed with the application. I further consider that 6 business days (between 5 July 2019 and 15 July 2019) was a reasonable amount of time to provide the Applicant with this advice considering the complex factual background of the matter and number of documents I was required to review. At all times, I acted with utmost urgency in providing-the Applicant with the advice and drafting the Application.

12 In my opinion, and after reviewing the Applicant’s evidence, the Applicant’s application is not without merit for the reasons set out in the Application, but in summary because:

(a) The reasons for dismissal provided by the Respondent are improper given the evidence at hand;

(b) There is evidence that the Applicant exercised his workplace rights to make complaints regarding his employment conditions;

(c) There is evidence, and the Respondent concedes, that adverse action was taken against the Applicant, including his ultimate dismissal; and

(d) For the reasons set out in the Application, it is not outlandish to conclude that the adverse action was taken because the Applicant made complaints regarding his employment conditions.”

[37] The above statement reveals the Application’s preparation was protracted. As at 4 July 2019, both the Applicant and his representative were aware that the Application was, if filed then, one day out of time, and yet significant time was then taken in activities such as “providing a detailed letter of advice” prior to filing.

[38] Properly characterised, the conduct of the Applicant and his representative displayed a distinct lack of urgency. While the Applicant’s representative sought to explain this delay by stating that the facts of the case were complex, it is clear from the Application that the matter was not so significantly more complex than other s.365 applications before the Commission so as to be exceptional.

[39] As noted above, the Applicant’s representative ceased acting for him on 14 October 2019. While not an issue raised by either party in the proceedings, I consider it prudent in the circumstances to traverse whether the Applicant could rely on representative error as a potential reason for the delayed filing of the Application.

[40] In Clark v Ringwood Private Hospital (1997) 74 IR 413 (Clark), a Full Bench of the Commission outlined the principles relevant to considerations of representative error. The Clark principles were usefully summarised by a Full Bench in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1 (Davidson), at page 6, as follows:

“(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.

(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.”

[41] The Applicant’s actions are the central consideration in deciding whether representative error affords an acceptable explanation for the delay. The Applicant became aware of the 21 day statutory time frame on 4 July 2019. He did not instruct his representative to file the Application until 17 July 2019. As such it is evident that he participated in the delay, and therefore cannot be seen as blameless.

[42] Considering all the reasons the Applicant has provided for the delay in his Application, he has failed to provide a credible reason for both the delay in taking prompt action during the 21 day statutory time frame, and the delay in acting from 4 to 17 July 2019, after he became aware of the 21 day statutory time frame. Those failures weigh against a finding of exceptional circumstances 3.

(b) Any action taken by the person to dispute the dismissal

[43] In paragraph 1.5(b) of the Applicant’s Submission, he concedes that beyond filing a general protections claim he has not disputed his dismissal. In determining whether there were exceptional circumstances this is a neutral consideration.

(c) Prejudice to the employer (including prejudice caused by the delay)

[44] In paragraph 5.1 of the Respondent’s Submission, the Respondent states that it does not contend prejudice arises from the Application being accepted out of the 21 day time frame. I consider this to weigh in favour of the Applicant.

(d) The merits of the application

[45] This is a general protections claim. In order to maintain such a claim, an applicant must show that an adverse action took place and that this action took place because of a protected reason. There is no dispute that adverse action in the form of a dismissal occurred.

[46] The Application claims the Applicant was dismissed because he exercised a workplace right, to make a series of complaints regarding his employment. The Respondent’s submissions contest the Applicant’s allegations and provide an alternative explanation for the Applicant’s termination. The Respondent claims the Applicant performed poorly on a performance review, the Applicant attempted to blackmail his leader, the Applicant failed to complete duties assigned to him during his role, and the Applicant misrepresented company data.

[47] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd  4stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”

[48] As these matters are contested, I unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(e) Fairness as between the person and other persons in a like position

[49] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[50] The Applicant has not established that, when viewed holistically, the circumstances are not out of the ordinary, unusual, special or uncommon. When the appropriate weight is assigned to each relevant consideration, particularly to both the reasons for delay and the absence of prejudice to the Respondent, the circumstances are not elevated to the status of exceptional.

[51] Therefore, I am not satisfied that the Commission has jurisdiction to hear the claim and order that the Application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S Bradford on his own behalf

Mr L Izzo and Ms M Soin appeared for the Respondent

Hearing details:

2019

Sydney

October 22

Printed by authority of the Commonwealth Government Printer

<PR715865>

 1 [2001] FWAFB 975.

 2   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd[2018] FWCFB 901 (“Stogiannidis”).

 3   Stogiannidis at [45].

 4   Unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000, Print T2421