Timothy Hunter v Hope Community Services Ltd
[2025] FWC 326
•5 FEBRUARY 2025
| [2025] FWC 326 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Timothy Hunter
v
Hope Community Services Ltd
(C2024/7557)
| COMMISSIONER P RYAN | SYDNEY, 5 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal – application made out of time – circumstances not exceptional – application dismissed
Introduction and Background
This decision concerns an application by Mr Timothy Hunter (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
The Applicant states that his employment with Hope Community Services Ltd (Respondent) was terminated with effect from 25 September 2024. The Application was made on 17 October 2024.
An application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows.[1] The period of 21 days ended at midnight on 16 October 2024. Therefore, the Application was made 1 day outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.
Upon the allocation of the matter to my Chambers, I directed the parties to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The matter was heard on 20 December 2024. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Ms V Stamper.
The following material was admitted into evidence:
· Witness Statement of Scott Roffey, the Respondent’s Manager, People and Culture (Exhibit R1).
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).
Exceptional Circumstances
The FW 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.[2] 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.[3]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) 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) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) 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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to make an application for the Commission to deal with a dismissal dispute.[4]
I now consider these matters in the context of the Application.
s.366(2)(a) – Reason for the delay
The FW Act does not specify what reason for 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 an applicant’s favour, however all of the circumstances must be considered.[5]
In response to question 1.4 of the Application, the Applicant provided the following explanation for the delay:
I had sent the application prior to the 21 days but didn’t realize [sic] that the email did not send and resent today the 17/10/2024.
The Application, which is dated 14 October 2024, was made by email correspondence sent at 3:45pm on 17 October 2024. The email correspondence included the following explanation:
I had sent this email on the 14/10/2024 but have only just noticed that it did not go through.
The Applicant did not file any evidence or submissions in response to my Directions and relied on the explanation set out in the Application.
During the hearing, the Applicant provided the following explanation:
· That he made a spelling error in the email address to which he was sending the Application;
· That the email did not send and ‘bounced back’ to the Applicant’s unsent folder; and
· That he did not realise that had occurred until he checked his email the next day and that is when he made changes to the Application and resent it.
(Emphasis added)
Where an applicant is seeking to establish exceptional circumstances on the basis of technical difficulties, that party will bear the evidentiary onus to adduce evidence of the nature and extent of those difficulties.[6]
In Giles v Coal Train Australia Pty Ltd[7], Deputy President Asbury (as the Vice President then was) stated:
[38] Notwithstanding this I accept that an Applicant seeking to establish exceptional circumstances on the basis of technical difficulties associated with lodging the application, is required to provide evidence to establish the nature and the impact of those difficulties. At very least, an Applicant assertion such difficulties should provide evidence about when attempts were made and what those attempts consisted of including documentary evidence where it is available. For example, in Arch v Insurance Australia Group Services Pty Limited there was evidence of technical issue associated with a maintenance closure of the Commission’s portal at or around the time that the Applicant established that he was attempting to lodge his application. The Applicant provided sufficient evidence of the time at which his attempts were made including copies of a partially completed application sufficient to establish that he did attempt to lodge it a time when he reasonably believed that the Commission’s portal was not functioning and that this was the only way to lodge his application.
[39] In the present case there is insufficient evidence about the attempts made by the Applicant to file her material and when she made those attempts. The incomplete application, while being validly made, does not contain information to enable conclusion to be reached or inference to be drawn as to when it was prepared, to support the Applicant’s assertions that she attempted to lodge it on 23 or 24 January 2020. As a result, there is no credible explanation for the delay in lodging the application. The lack of a credible explanation for the delay in filing the application is a matter that weighs against the exercise of the discretion to grant a further period for the application to be made.
As stated above, the Applicant did not provide any evidence in support of his explanation. For example, the Applicant did not provide a copy of the undelivered email showing the incorrect email address and the dates it was sent and returned.
Furthermore, the Applicant has made inconsistent statements as to when he became aware of the undelivered email and resent the Application. In his covering email correspondence to the Commission the Applicant stated that he sent the initial email on 14 October 2024 and resent it on 17 October 2024 having “only just noticed” that it was undelivered. However, in the proceedings before me the Applicant stated that he became aware of the undelivered email and resent the Application the day following the day he initially sent it. Based this explanation, the Applicant would have been aware of that the initial email was undelivered as at 15 October 2024, which was still within the 21-day period.
In the absence of supporting evidence, and noting the inconsistencies in the Applicant’s explanation, I am not satisfied that the technical difficulties described constitute an acceptable or reasonable explanation for the delay.
In the absence of an acceptable or reasonable explanation, this circumstance weighs against a conclusion that there are exceptional circumstances.
s.366(2)(b) – Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[8]
In Hunter Valley Developments Pty Ltd v Cohen[9], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[10]
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal other than making the Application. This factor weighs against a conclusion that there are exceptional circumstances.
s.366(2)(c) – Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced by the delay, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
s.366(2)(d) – Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.
It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed.
It follows that it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
s.366(2)(e) – Fairness as between the person and other persons in a similar position
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[11]
The Respondent submitted although the Commissions is not bound by the principle of stare decisis, the Commission has found in other matters that unsubstantiated technical difficulties were not exceptional warranting an extension of time.
There have been numerous decisions where the Commission has refused an extension of time in circumstances where the person has failed to provide evidence in support of a contention that technical difficulties prevented the making of an application within the statutory time limit. Adopting a position of fairness between the Applicant and other persons relying on technical difficulties, this factor does not weigh in favour of a conclusion that there are exceptional circumstances.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).
Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
T. Hunter, the Applicant.
V. Stamper, solicitor for the Respondent.
Hearing details:
2024.
Sydney (via Microsoft Teams video-link):
20 December.
[1] See s.366 of the Fair Work Act 2009.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan [2019] FWCFB 5104 at [43].
[7] [2020] FWC 2274 at [38]-[39].
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[9] [1984] FCA 176.
[10] Ibid at [19].
[11] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [41].
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