Timothy Carter-O'Sullivan v Kerembla Pty Ltd
[2022] FWC 2789
•31 OCTOBER 2022
| [2022] FWC 2789 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Timothy Carter-O’Sullivan
v
Kerembla Pty Ltd
(U2022/9259)
| DEPUTY PRESIDENT DEAN | CANBERRA, 31 OCTOBER 2022 |
Application for an unfair dismissal remedy.
Mr Timothy Carter-O’Sullivan (Applicant) was employed by Kerembla Pty Ltd (Respondent) until he was summarily dismissed on 23 August 2022. On 14 September 2022 he made an application pursuant to s 394 of the Fair Work Act 2009 for a remedy on the basis of an alleged unfair dismissal by the Respondent.
Section 394(2) of the 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 Commission allows pursuant to s 394(3).
The present application was lodged one day outside the statutory time limit. The Applicant seeks an extension to the period of time in which his application can be made. This was opposed by the Respondent.
The matter was listed for hearing by telephone on 27 October 2022. The Applicant appeared on his own behalf and the Respondent was granted permission to be represented by Mr Joshua Whale of Equilaw Solicitors. Oral evidence was given by the Applicant and Mr Jason Preston.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, 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.[1] 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.[2]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(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.
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. I now consider these matters in the context of this application.
Reason for the delay
The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[3]
The Applicant submits that he was initially of the belief that his application had been lodged within the required timeframe by his accountant, Ms Dianne Preston of Dianne Preston Accounting & Taxation Service. He gave evidence that he completed the application on 11 September 2022 and relied on his accountant to print, scan and submit for him as he doesn’t have a printer or scanner. He said that he attended Ms Preston’s office on 12 September 2022 and was told by the secretary to whom he handed the application that it would be lodged on the same day. It was not until he was notified by the Commission that he became aware that his application was made one day late. He added that it was for this reason that he stated in the Form F2 that the application was made with 21 calendar days of the dismissal taking effect.
The Applicant’s evidence was corroborated by a statement provide by Ms Preston which states, in part, the following:
“Please be advised I am the tax agent for Timothy O’Sullivan. Timothy requested our office to process his unfair dismissal forms as he had no computer, printer or scanner. I spoke with Timothy on Friday 9th September and advised him if he had the information to our office by Monday 12th September, we would send this for him straight away.
Timothy gave our office the information to email to the Fair Work Commission on 12th September 2022. Unfortunately, my receptionist was ill and off work until Wednesday 14th September which has led to the information being sent 2 days after the information was given to ourselves by Timothy.”
Ms Preston did not attend the hearing to give oral evidence. Instead, Mr Jason Preston, the husband and secretary of Ms Preston, gave oral evidence at the hearing and was cross examined by Mr Whale. Mr Preston’s evidence was that he took the application from the Applicant on 12 September 2022 and was told by him that it needed to be sent straight away. He said that he was supposed to lodge the application but he became ill and was unable to do it until two days later. Mr Preston said that it was solely his fault that the application was not made within time.
The Respondent submits that the circumstances of the Applicant in combination are not exceptional. It is submitted that the lack of printing and scanning facilities are not out of ordinary and that the Applicant failed to follow up to ensure the application was filed within time.
It was revealed during cross examination that the Applicant is in a close family relationship with Mr and Mrs Preston. I have paid regard to this aspect but consider that there is no reason to doubt the evidence from these witnesses notwithstanding their personal relationship.
I am satisfied on the evidence that the Applicant attended Ms Preston’s office on 12 August 2022 with his completed application and that he was led to believe his application would be filed within the required period on that day. This followed the communication between the Applicant and Ms Preston on 9 August during which Ms Preston assured the Applicant that the application would be sent off ‘straight away’ if he handed it in by 12 August. The Applicant was entitled to rely on Ms Preston to act on the instruction.
In the circumstances, I am satisfied that this was a case of representative error and the delay was not attributable to the Applicant. Accordingly, I find that the Applicant has made out an acceptable and credible explanation for the delay in lodging his unfair dismissal application. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his dismissal on 23 August 2022 and had the full period of 21 days to lodge the application. This weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
I accept the Applicant’s evidence that he took some actions to dispute the termination of his employment by making enquiries from the Commission immediately following the termination of his employment and writing to the Respondent disputing the dismissal. This weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.
The Applicant was dismissed for serious misconduct. He strenuously denied any wrongdoing. In the absence of tested evidence, it is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am satisfied that there are exceptional circumstances which would warrant my granting an extension of time. In this case it is a combination of the Applicant’s circumstances that support such a finding.
Accordingly, an extension of time is granted. An order reflecting this decision will be issued.
DEPUTY PRESIDENT
Appearances:
T Carter-O’Sullivan, on his own behalf.
J Whale of Equilaw Solicitors for Kerembla Pty Ltd.
Hearing details:
2022.
By telephone:
October 27.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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