Steven Ots v Enable WA Inc

[2021] FWC 66

[2021] FWC 66

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Ots
v
Enable WA Inc
(U2020/14187)

COMMISSIONER WILLIAMS PERTH, 22 JANUARY 2021

Termination of employment - extension of time.

Introduction

[1] Mr Steven Ots (Mr Ots or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Enable WA Inc (the Respondent).

[2] Mr Ots was dismissed on 26 March 2020.

[3] On 27 March 2020, the Applicant filed his first unfair dismissal application with the Fair Work Commission (the Commission); which was subsequently withdrawn. On 1 April 2020, the Applicant filed an unfair dismissal application with the Western Australian Industrial Relations Commission (WAIRC); which was dismissed for want of jurisdiction on 22 October 2020. This application was then made on 28 October 2020.

[4] This application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[5] Section 394 (3) of the Act allows the Commission to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in section 394 below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(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 similar position.”

[6] Submissions have been provided by both parties regarding allowing a further period for this application to be made.

The relevant facts

[7] The facts relevant to the question of whether or not a further period should be allowed for this application to be made are not in dispute.

[8] The Applicant was dismissed on 26 March 2020 following an investigation into an incident that occurred on 23 March 2020.

[9] On 27 March 2020, the Applicant made his first unfair dismissal application (U2020/3776). On 1 April 2020, the Applicant’s representative filed a form F50-Notice of Discontinuance advising the application is wholly discontinued to purse an alternative application.

[10] That same day, 1 April 2020, the Applicant filed an unfair dismissal application with the WAIRC (U 44 OF 2020). On 20 April 2020, the Respondent filed a jurisdictional objection with the WAIRC opposing the application on the basis that it was a constitutional corporation and therefore a national systems employer.

[11] The parties attended three conciliation conferences in total before the WAIRC and by 3 September 2020 all submissions addressing the jurisdictional objection has been filed.

[12] On 22 October 2020, the WAIRC dismissed the application for want of jurisdiction. 1

[13] On 28 October 2020, the Applicant filed this unfair dismissal application.

Are there exceptional circumstances?

The reason for the delay

[14] The Applicant explains that the reasons for lodging his application outside of the time prescribed was that he received incorrect advice from his representative which resulted in the first unfair dismissal application being withdrawn and an application being made to the WAIRC.

[15] The Respondent submits that the Applicant’s case demonstrates that, whilst the Applicant acted on mistaken legal advice, he was aware of the issues with his WAIRC application as early as 20 April 2020 when it filed its response to the WAIRC.

[16] The Respondent says there is no evidence that the Applicant took any step to ensure that his application was being correctly pursued after having been alerted to the jurisdictional objection.

[17] I accept that the withdrawal of the first unfair dismissal application and the application to the WAIRC is, although made erroneously, understandable given the legal advice the Applicant received from his representative. I also appreciate that the Applicant acted expeditiously and lodged his first unfair dismissal application the day after his dismissal took effect. I therefore accept that before 20 April 2020, the date of which the Respondent filed its answer to the WAIRC application, there was nothing that was readily available to the Applicant which would have alerted him to the fact that he filed an application in the incorrect jurisdiction.

[18] On 20 April 2020 the Respondent had notified the WAIRC and the Applicant of its jurisdictional objection. That response is not before me so I am unable to make an assessment as to whether the information provided in that response provided sufficient information that would have been reasonably apparent to the Applicant that there was a real possibility that his application has been made in the wrong jurisdiction.

[19] By 3 September 2020 the parties had filed a number of submissions and supporting documentation addressing the jurisdictional objection before the WAIRC and attend two directions hearings. The Applicant did not challenge the Respondent’s evidence in the WAIRC proceedings. 2

[20] Whilst I accept that by 31 August 2020 (the date on which the Respondent filed its last submission) the Applicant had all the information that supported the Respondent’s position that it is a national system employer, the Applicant was self-represented in the WAIRC proceedings so it is unsurprising that it was not apparent to him his application had possibly been made in the incorrect jurisdiction; especially because he lodged the application in the WAIRC based on erroneous advice given to him by his then representative.

[21] However, at the very least, on reviewing the material filed by the Respondent in support of its jurisdictional objection, the Applicant should have sought some other advice about whether his application had been lodged in the correct jurisdiction or taken steps to enquire about whether he could continue with his application in the WAIRC and file an application in the Commission simultaneously. He did none of these things.

[22] I therefore do not accept that the Applicant has provided an acceptable explanation for the period between the date which the Applicant received the Respondent’s final submission, which was 31 August 2020, and the date on which this application was made, which was 28 October 2020.

[23] In addition, the only explanation provided by the Applicant for the delay between the date the WAIRC application was dismissed, 22 October 2020, and date this application was filed, 28 October 2020, is that he made enquiries with his former representative to no avail so it was then he sought to make this application on his own behalf. The Applicant may have reason to be dissatisfied with his former representative however, this is not in my view an acceptable explanation for the delay in between 22 October 2020 and 28 October 2020.

[24] Therefore, I do not consider that the Applicant has an acceptable explanation for the whole of the delay. In the circumstance, this consideration weighs against the Applicant.

Whether the person first became aware of the dismissal after it had taken effect

[25] The Applicant became aware of the dismissal on the day it took effect.

Any action taken by the person to dispute the dismissal

[26] It is clear the Applicant took immediate action to contest his dismissal by lodging the first unfair dismissal application a day after the dismissal took effect.

[27] The day that first unfair dismissal application was withdrawn the Applicant sought to continue to dispute the dismissal by lodging an application with the WAIRC; which has turned out to be the wrong jurisdiction.

[28] In the circumstances, this is a matter that weighs in favour of the Applicant.

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

[29] The Respondent submits that if this application is granted it will suffer significant prejudice because it has already dealt with this matter in the wrong jurisdiction and despite putting the Applicant on notice, he persisted in that application instead of filing his application in the Commission. The Respondent submits it is a not-for-profit organisation with limited funds.

[30] I agree the Applicant’s failure to seek other advice or make enquiries contributes to the delay and meant that the Respondent was forced to prosecute its jurisdictional objection in the WAIRC to finality. There has also now been a lengthy time since the dismissal which may to some extent prejudice the Respondent’s defence of this application.

[31] In the circumstances, these considerations weigh against the Applicant.

The merits of the application

[32] The Applicant’s employment was terminated with immediate effect following an alleged incident involving serious misconduct of the Applicant.

[33] It is only at a hearing of a matter such as this would it become clear whether or not the application has merit. The Commission does not embark upon a hearing of the merit when determining the preliminary issue of an application to extend time for filing the substantive application.

[34] Consequently, I view the merits of the application as a neutral factor in this decision.

Fairness as between the person and other persons in a similar position

[35] There is no evidence of person in a similar position.

Conclusion

[36] The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[37] I have considered the information provided by Mr Ots. In this case there is an acceptable reason for only part of the delay in making the application with no explanation for the period between 31 August 2020 and 22 October 2020 and then to 28 October 2020.

[38] There is no basis for finding in this instance that there where exceptional circumstances.

[39] In the absence of exceptional circumstances, I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[40] An order [PR726027] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 9 November 2020.

Respondent, 1 December 2020.

Printed by authority of the Commonwealth Government Printer

<PR726026>

 1   2020 WAIRC 00864.

 2 Ibid., at [10].