Todd Vella v Niland Roofing Pty Ltd

[2023] FWC 2479

[2023] FWC 2479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Todd Vella
v

Niland Roofing Pty Ltd

(C2023/4651)

DEPUTY PRESIDENT DEAN CANBERRA, 27 SEPTEMBER 2023

Application to deal with contraventions involving dismissal – extension of time – application dismissed.

1. Mr Todd Vella (the Applicant) has made an application under s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving his dismissal from Niland Roofing Pty Ltd (the Respondent).

1. The Applicant commenced employment on 12 April 2023 and was dismissed on 6 July 2023. This application was lodged on 2 August 2023.

1. Section 366(1) of the Act requires that a general protections application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). The application was lodged 6 days outside the 21-day period and can only proceed if the Commission grants a further time for the Applicant.

1. A hearing took place on 26 September 2023. The Applicant appeared on his own behalf and the Respondent was represented by Mr S Niland.

2. For the reasons set out below, I find there are no exceptional circumstances and will dismiss the application.

Extension of time

1. The Act allows the Commission to extend the period within which a general protections 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]

1. The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

2. Section 366(2) of the Act 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. 

1. 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.

1. I now deal with each of the provisions of s.366(2) of the Act.

Reason for the delay

1. 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]

1. The Applicant provided the following explanation for the delay when filing his application: “Aspergers and adhd make me need extra time for processing, also the employer has been harassing me and mocking me ever since the employment ceased causing distractions to everything in my life”.

1. I am not satisfied that the reason provided by the Applicant supports a finding that there are exceptional circumstances. There was no medical evidence provided by the Applicant to suggest that his medical conditions prevented him from filing his application within time. Further, the Applicants medical conditions are not out of the ordinary, unusual or uncommon.

1. This weighs against the granting of an extension of time.

Action taken to dispute the dismissal

1. The Applicant did not take any action to dispute the dismissal other than making this application. This weighs against a conclusion that there are exceptional circumstances.

Prejudice to the employer

1. The delay is relatively short and I cannot identify any prejudice that would accrue to the Respondent 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

1. 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.

1. The Applicant submitted that another employee stole his trowel, then when he attended work the following day he was dismissed because he did not have a trowel to do the work that was required. He further submitted that there was no valid reason for his dismissal.

2. The Respondent submitted that the Applicant was not fired for not having a trowel, but it was the Applicant’s behaviour associated with the loss of his trowel that led to his dismissal.

3. On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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

1. 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.

1. Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.

Conclusion

1. As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and the test of ‘exceptional circumstances’ establishes a high hurdle.

1. Having regard to the matters I am required to take into account, I am not satisfied that there are exceptional circumstances, either when considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.

2. I decline to grant an extension of time and accordingly this application is dismissed.

DEPUTY PRESIDENT

Appearances:
T Vella on his own behalf.
S Niland for Niland Roofing Pty Ltd.

Hearing details:
2023.
By telephone:
September 26.

[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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