Warwick Poulton v Teleresult Pty Ltd
[2023] FWC 2290
•11 SEPTEMBER 2023
| [2023] FWC 2290 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Warwick Poulton
v
Teleresult Pty Ltd
(U2023/6751)
| DEPUTY PRESIDENT DEAN | CANBERRA, 11 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
This decision concerns an application by Mr Warwick Poulton (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.
The Applicant was employed by Teleresult Pty Ltd (Respondent) until his employment was terminated with effect from Friday 30 June 2023. His unfair dismissal application was lodged on Monday 24 July 2023.
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 Applicant’s application was filed 3 days outside the 21-day period and can only proceed if the Commission grants a further period for the application to be made.
The matter was listed for hearing by telephone on 8 September 2023. The Applicant appeared and gave evidence on his own behalf. Mr Brian Stevens (Director) appeared and gave evidence for the Respondent.
Extension of time
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.
Consideration
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 explained he thought the 21-day time period ended on Saturday 22 July and as a result he filed his application on Monday 24 July 2023.
However, the Applicant had miscalculated, and the 21-day time period in fact ended on Friday 21 July 2023.
I am not satisfied that miscalculating the time period is an acceptable explanation for the delay. This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
There is no dispute that the Applicant was aware of his dismissal from the time it took effect on 30 June 2023. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute the dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
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
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 his application, the Commission ‘should not embark on a detailed consideration of the substantive case.
The Respondent’s decision to dismiss the Applicant was based upon performance. The Applicant contends that he was not provided with adequate time to appropriately address the performance issues and that his dismissal was procedurally unfair.
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.
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
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.
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
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 not satisfied that there are exceptional circumstances, either when the various circumstances are 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. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
W Poulton on his own behalf.
B Stevens for Teleresult Pty Ltd.
Hearing details:
2023.
By telephone:
September 8.
[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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