Zakiah Przybylkiewicz v Thornton Engineering Australia Pty Ltd
[2024] FWC 760
•2 APRIL 2024
| [2024] FWC 760 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Zakiah Przybylkiewicz
v
Thornton Engineering Australia Pty Ltd
(U2024/1915)
| COMMISSIONER WILSON | MELBOURNE, 2 APRIL 2024 |
Application for an unfair dismissal remedy – application filed out of time – circumstances not exceptional – application dismissed.
This decision concerns an application made by Mr Zakiah Przybylkiewicz (the Applicant) alleging unfair dismissal against Thornton Engineering Australia Pty Ltd (Thornton Engineering or the Respondent). Mr Przybylkiewicz’s employment ended on Tuesday 30 January 2024. Mr Przybylkiewicz’s application for unfair dismissal remedy was lodged in the Fair Work Commission (the Commission) on Wednesday 21 February 2024.
Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates referred to above, Mr Przybylkiewicz’s application was made 1 day outside of the statutory time limit which ended on Tuesday 20 February 2024.
Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Przybylkiewicz’s application. Thornton Engineering object to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application.
On Monday 25 March 2024 a hearing was conducted in respect of whether an extension of time should be allowed for the filing of the application, however the Applicant did not attend that hearing, giving no notice of his inability to attend. In order to ensure Mr Przybylkiewicz had a fair opportunity to present his case about an extension of time I determined the matter should be adjourned until Tuesday 2 April 2024. After the hearing scheduled for 25 March 2024 Mr Przybylkiewicz contacted my Associate, apologised for his absence and stated he had been ill and in hospital.
Mr Przybylkiewicz also did not attend the hearing scheduled for 2 April 2024 and made no contact prior to the hearing about a potential inability to attend. This is despite the Notice of Listing issued for 2 April 2024 stating that “The Commissioner advises Mr Przybylkiewicz that if he fails to attend the relisted Determinative Conference/Hearing on Tuesday 2 April 2024 or fails to give at least 2 business days’ notice of his inability to attend then the extension of time objection will be determined on the basis of the material already before the Commission.”
Mr Jason Demillo, Human Resources Manager at Thornton Engineering attended both hearings.
As a result of Mr Przybylkiewicz’s failure to attend the 2 April 2024 hearing I determined it was appropriate to determine the application on the basis of the material before the Commission.
In considering an application for an extension of time for the making of an unfair dismissal application, the FW Act requires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion[1] and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[2]
I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Mr Przybylkiewicz’s case and that an extension of time should not be granted for the making of his unfair dismissal application.
BACKGROUND
Mr Przybylkiewicz was first employed by the Respondent, Thornton Engineering on 21 September 2021 as an apprentice. He was employed under an Australian Apprenticeship arrangement leading to an AQF3 qualification in Engineering – Fabrication which was expected to be completed by August 2024.
Mr Przybylkiewicz’s employment ended on Tuesday 30 January 2024.
Mr Przybylkiewicz’s application form lacks clarity in relation to why he believes he has been dismissed unfairly, other than putting forward that he had been targeted and harassed throughout 2023. After recollecting a series of health issues Mr Przybylkiewicz puts forward what appears to be a difference of understanding between him and his supervisor after he had asked to move work sheds at the end of October. While agreement had been given, it was never actioned. In January 2024 Mr Przybylkiewicz went on holiday with the expectation that the change would take place when he returned, putting forward:
“but on the 11th till 27th I was on holiday and was supposed to be moved sheds when I got back from holiday. Work continued on the 30th of jan and I was told I was not gonna be moved sheds because he wanted me to stay I said I’ll look for another job then and 30min later he gave me a termination letter and fired me. all that was on the termination later was because I missed a day on the 10th of jan and didn’t let him know I had to take time off when he wasn’t at work that week and wasn’t going to be till the following week.”
Thornton Engineering’s termination letter and Employer Response Form (the Form F3) put forward a different perspective, arguing that on 31 October 2023 Mr Przybylkiewicz received a verbal warning over repeated lateness on 27 and 31 October 2023 and that he failed to heed the warning when he did not attend for work on 11 December 2023. Further:
“3. On January 4, 2024, Mr. Przybylkiewicz arrived for work at 11.14 am. His rostered shift was to commence at 6.30am. Mr. Przybylkiewicz had not communicated his lateness as per the required communication channels outlined to him on October 31, 2023. Upon arrival, Mr. Przybylkiewicz Presented himself to the HR Manager. When asked why he was late and why he had not communicated as per the protocols, Mr. Przybylkiewicz shrugged his shoulders in response. I (Jason Demillo – HR Manager) once again informed Mr. Przybylkiewicz of the required process and that another instance of non-compliance would result in his dismissal.
4. On January 29, 2024 Mr. Przybylkiewicz once again failed to attend work and did not follow protocol in reporting his absence.”
Mr Przybylkiewicz’s employment was terminated on 30 January 2024 with effect from the same date with the termination letter referring to the warning and the Applicant’s failure to heed it on the days he was absent, 11 December 2023 and 29 January 2024.
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria.
Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” [3]
The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[4]
In considering whether an extension of time should be granted to Mr Przybylkiewicz, I am required to consider all of the criteria in s.394(3), which I now do.
1. The reason for the delay
The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[5] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[6] An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[7] While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[8]
Mr Przybylkiewicz puts forward in his submissions several matters to be taken into account.
Before being dismissed his house had been broken into and his partner’s car damaged. He then took a holiday to Bali and became very ill, such that he required hospitalisation. After returning to Melbourne in late January 2024 he again required hospitalisation. He says that he got a doctor’s certificate supporting the absence from work on 29 January 2024 and gave it to his supervisor, Simon.
After dismissal he could not pay his rent and became homeless. He learned about a week after his dismissal that he could do something about his dismissal. Since being dismissed his health has deteriorated further requiring him to spend large amounts on treatment.
In view of the fact that Mr Przybylkiewicz’s application to the Commission was 1 day late, and that the delay required to be considered by the Commission is the period beyond the prescribed 21 day period for lodging an application it is to be noted that there is no explanation before me as to why his application was lodged on Wednesday 21 February 2024 and not earlier, within the statutory time limit. The material before me suggests that Mr Przybylkiewicz relies on the collection of his personal circumstances, including his financial and domestic situation as well as his health.
In this case, I am not satisfied that there are exceptional circumstances to explain the delay in filing the application.
The statutory deadline requires active engagement with the making of an unfair dismissal application, personally or through one’s representative which in this jurisdiction does not have to be a lawyer, union or even paid agent. The lack of active engagement with the deadline, and a consequential late lodgement means an inevitable retrospective examination of an applicant’s circumstances to ascertain whether there was an acceptable explanation for the delay. Ignorance of the timeframe for lodgement is not an exceptional circumstance.[9] I am therefore not persuaded by Mr Przybylkiewicz’s submission. Consideration of this criterion therefore does not resolve in the Applicant’s favour for the granting of an extension of time for the making of his application.
2. Whether the person first became aware of the dismissal after it had taken effect
A termination of employment on the employer’s initiative does not take effect unless and until it is communicated to the employee whose employment is being terminated.[10] Mr Przybylkiewicz was notified of the dismissal verbally and through a letter given to him when he was informed of the dismissal.
As the termination of employment was communicated to Mr Przybylkiewicz on the same day it took effect, this factor weighs against an extension of time being granted for the making of the application.
3. Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[11]
The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time”[12] (underlining added).
While affected by his dismissal Mr Przybylkiewicz did not take any active steps to dispute his dismissal until he lodged the application which is the subject of this decision.
I consider this to be a neutral consideration.
4. Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 1 day. The Respondent does not claim that the delay in lodging the application caused it prejudice.
While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.[13]
In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter is a neutral factor in my consideration.
5. The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[14] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[15]
The facts relied upon by each party are set out above.
In summary, Mr Przybylkiewicz disputes that it was reasonable for Thornton Engineering to dismiss him for lateness contrary to a verbal warning and instead believes he was dismissed as part of a pattern of bullying behaviour directed toward him. He puts forward that his ill-health before dismissal necessitated his absences and that he attempted to notify the employer of his absence as best he could.
Thornton Engineering’s case is that it verbally warned Mr Przybylkiewicz about being late for work and that he did not heed the warning when he was absent without any notification on two occasions, 11 December 2023 and 29 January 2024. It argues that these matters justify its decision to dismiss the Applicant.
As a result it is the case in this matter, as with most extension of time matters, that the uncertainties about each party’s case and each parties evidence on the merits is yet to be tested lead me to find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of Mr Przybylkiewicz’s unfair dismissal application.
6. Fairness as between the person and other persons in a similar position
This consideration is concerned with the consistent application of principles in applications of this kind, ensuring fairness between an applicant and other persons in a similar position, noting that applications for an extension of time generally turn on their own facts.[16] This may require consideration of applicants whose applications are either currently before the Commission, or have been decided in the past.[17] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[18]
No such factors are featured in this matter and so consideration of this criterion is also a neutral factor in my conclusion about exceptional circumstances.
CONCLUSION
None of the criteria in s.394 lean decisively toward a finding of exceptional circumstances. Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Przybylkiewicz.
As a result, Mr Przybylkiewicz’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.
COMMISSIONER
Appearances:
No appearance for the Applicant
Mr J. Demillo for the Respondent
Hearing details:
2024.
Melbourne (via video conference);
25 March and 2 April.
[1] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[3] Nulty v Blue Star Group, 2011, 203 IR 1, [13].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].
[7] Ibid, [40].
[8] Ibid, [41].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14].
[10] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496.
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[12] Ibid.
[13] Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201, [16].
[14] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[15] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[16] GHD Pty Ltd v Kevin Alan Black[2023] FWCFB 38, [94].
[17] Wilson v Woolworths [2010] FWA 2480, [24]-[29].
[18] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
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