Timothy Avery v Rangedale Drainage & Industrial Services Pty Limited
[2024] FWC 3476
•13 DECEMBER 2024
| [2024] FWC 3476 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Timothy Avery
v
Rangedale Drainage & Industrial Services Pty Limited
(U2024/12661)
| COMMISSIONER MCKINNON | SYDNEY, 13 DECEMBER 2024 |
Application for an unfair dismissal remedy – application filed out of time – whether an extension of time should be allowed
Mr Avery was employed as Operations Coordinator from 14 November 2023 and later in the role of Operations Manager until 12 August 2024 when his employment terminated on the grounds of redundancy.
On 23 October 2024, Mr Avery applied to the Commission for an unfair dismissal remedy from Rangedale Drainage & Industrial Services Pty Limited (Rangedale). Under s.394 of the Fair Work Act 2009 (the Act), an application for an unfair dismissal remedy must usually be made within 21 days after the dismissal took effect. Mr Avery’s application was required to be filed by 2 September 2024. It was instead filed 7 weeks and 2 days after the expiry of the 21-day filing period.
The question is whether additional time can and should be allowed for Mr Avery to make the application to the Commission. I have decided not to allow additional time for Mr Avery to make his application. My reasons are set out below.
Extension of time
Where an application for unfair dismissal remedy is not made within 21 days after the dismissal took effect, additional time may be allowed under s.394(2) of the Act but only if the Commission is satisfied that there are exceptional circumstances and that an extension of time is appropriate.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:
“[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.”
In reaching the state of satisfaction as to whether there are exceptional circumstances for the purpose of extending the time to apply for an unfair dismissal remedy, it is necessary to consider each of the matters listed in s.394(3) of the Act. These are:
a)the reason for the delay,
b)whether the person first became aware of the dismissal after it had taken effect,
c)any action taken by the person to dispute the dismissal,
d)prejudice to the employer (including prejudice caused by the delay),
e)the merits of the application, and
f)fairness as between the person and other persons in a similar position.
Consideration
Reason for delay: The reasons given by Mr Avery for the late filing of his application are that he did not know about the 21-day time limit, was going through a marriage breakdown in August 2024 and for the past 10 years has had ongoing back issues that meant he was going to a lot of appointments in anticipation of surgery. The combined toll of being made redundant while dealing with his marriage breakup and back issues has been significant and has affected his two children as well as himself. He was prioritising his mental health.
The marriage breakdown is an exceptional circumstance because the timing seems to have coincided with the loss of Mr Avery’s job, although the precise sequence of events is unknown. Mr Avery’s ongoing back issues do not fall into the same category as they were the ordinary circumstances faced by Mr Avery at the time. Neither ignorance of the law nor emotional distress are exceptional circumstances. Mr Avery was able to engage with the “workers compensation people” during the period after dismissal and rang the Fair Work Ombudsman for advice approximately 2-3 weeks after the redundancy. There is no evidence of any inability to make reasonable enquiries about his options after the dismissal. There is, for example, no medical evidence about the effect of Mr Avery’s back injury or mental health on his capacity to commence or participate in a legal case. On balance, the reasons for delay do not weigh in favour of the grant of additional time.
Whether the person first became aware of the dismissal after it had taken effect: Mr Avery knew of the dismissal immediately upon advice to him that his position would become redundant on 1 August 2024. The dismissal took effect on 12 August 2024 after a period of annual leave. These circumstances do not weigh in favour of additional time.
Any action taken by the person to dispute the dismissal: Mr Avery did not take any action to dispute the dismissal except for the filing of this application. This weighs against additional time being allowed.
Prejudice to the employer (including prejudice caused by the delay): No prejudice is asserted by Rangedale and I find none. This is a neutral consideration.
Merits of the application: Mr Avery alleges that he was dismissed a couple of days after asking for two days off work to deal with his marriage breakup. He further submits that his dismissal was not a genuine redundancy, because he signed a contract for the role of Operations Manager a matter of days beforehand, another employee was subsequently employed in the role of Operations Manager, and Rangedale never contacted him to see if he wanted his position back. Rangedale submits that the dismissal was one of approximately 30 genuine redundancies implemented across the business. It denies that any ulterior motive for the dismissal or that another employee was promoted to Operations Manager after Mr Avery was made redundant. The employee referred to by Mr Avery now performs some functions of the role previously performed by Mr Avery but the remaining functions have been transferred to the State Manager.
The parties each have competing and reasonably arguable positions. Their opposing contentions could only be resolved by a hearing where the evidence can be brought forward and properly assessed. It would not be appropriate to delve deeper into the merits of the case at this preliminary stage and accordingly the merits are a neutral consideration.
Fairness as between the person and other persons in a similar position is not a relevant consideration in the circumstances of this case.
Conclusion
An exceptional circumstance exists in this case in relation to Mr Avery’s marriage breakup, but there is limited evidence about its contribution to the delay in filing the application. On balance, the reasons for delay do not weigh in favour of additional time for the application to be made. There are no other exceptional circumstances in the case, and for the reasons above, none of the mandatory considerations weigh in favour of additional time.
Accordingly, I do not consider it appropriate to allow additional time for Mr Avery to make his application to the Commission. The request for additional time to make the application is refused.
The result is that because the application was not filed on time, there is no jurisdiction to deal with the case.
Order
The application is dismissed.
COMMISSIONER
Appearances:
T Avery on his own behalf.
F Marshall for the respondent.
Hearing details:
2024.
Sydney (by video):
December 3.
[1] [2011] 203 IR 1 at [13].
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