Unfair dismissal - extension of time for lodging application.

[1] Mr Agriropoulos (the Applicant) lodged an application with Fair Work Australia (the Tribunal) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) asserting that he had been unfairly dismissed by Electricity Networks Corporation trading as Western Power (the Respondent).

[2] The application was lodged on 2 August 2010. The application states the Applicant was dismissed on 1 July 2010.

[3] Section 394(2) and (3) of the Act provides that:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(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

(f) fairness as between the person and other persons in a similar position_._"

[4] The application was made after the 14 day time limit. This decision deals with whether or not a further period should be allowed for the Applicant to make the application.

[5] I turn to consider the particular factors specified in s. 394(3) of the Act.

S.394(3)(a)

[6] The reason for the delay as explained for the Applicant was that:

• He had worked for the respondent since 1972 and the termination felt like he had been "kicked in the head" and caused him to have trouble sleeping and to need prescription sleeping medication.

• He was not offered counselling or told what steps he could take if he was aggrieved by his termination.

• On 7 July 2010 he contacted a lawyer and met with them on 13 July 2010. He was advised they did not practice in the field and he should approach another firm of solicitors. He approached a number of other firms unsuccessfully and then on 16 July 2010 met with a paralegal of the firm of solicitors that assisted him to lodge this application.

[7] Considering the reasons for the delay, the upset the Applicant felt upon being terminated is not an unusual reaction and does not of itself provide an acceptable explanation for the delayed lodgement. Further the difficulties the Applicant experienced in getting legal advice is a common problem that many employees who are unfamiliar with such matters do experience and this is also not an acceptable explanation for the day. I also note there is no explanation for the delay between 16 July 2010, when the solicitors took instruction from the applicant, and the date this application was made which was not until 2 August 2010. Overall the applicant has not given acceptable reasons for the delay in lodging this application.

S.394(3)(b)

[8] The Applicant became aware of the dismissal at the time it took effect, 1 July 2010.

S.394(3)(c)

[9] The Applicant took no action to dispute the dismissal other than making this application.

S.394(3)(d)

[10] There is no prejudice to the Respondent other than the usual prejudice that accompanies any grant of an extension of time.

S.394(3)(e)

[11] The Applicant was terminated for his role in a safety incident that occurred on 17 June 2010. The matter was investigated by the Respondent and he was first interviewed over the incident on 22 June 2010. On 26 June 2010 the investigation's findings were put to the Applicant, whom was accompanied by a support person, and he was told that termination of his employment was possible pending the final outcome of the investigation.

[12] A disciplinary meeting was held with the Applicant on 1 July 2010 in which admissions of some failures to undertake required electrical testing and to report a safety incident were made by the Applicant. He was accompanied by a support person for this meeting. The Respondent then made the decision to terminate the applicant based on his replies about this safety incident and considering the background of two previous written and two previous verbal warnings. The Respondent did have consideration for the Applicant's extensive length of service in making their decision.

[13] The application challenges some of the Respondent's conclusions and provides explanations in part for some of the failures of the Applicant.

[14] The authorities make it clear that it is not appropriate to embark upon a fact finding exercise in relation to the merits of a dismissal for the purposes of determining an extension of time application such as this. Accordingly, I will proceed on the basis that the Applicant's case whilst very weak is not one that no possibility of success.

S.394(3)(f)

[15] This factor is not relevant in the present case.

[16] Section 394(3) of the Act requires that Fair Work Australia be satisfied that there are "exceptional circumstances" to allow a further period of time to make an application after the 14 day time limit has elapsed.

[17] Exceptional describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. [2009] FCAFC 150 at 51.

[18] In this case considering all of the factors, I am not satisfied that there are exceptional circumstances that warrant extending the time allowed to make this application.

[19] Accordingly this application, having been made out of time, is not properly before the Tribunal and must be dismissed.

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