Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - late lodgement - whether extension of time should be granted - exceptional circumstances not present - extension not granted - application dismissed.

[1] Mr Alexander Pavlenko has applied under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The respondent employer is Dirtybits Pty Ltd T/A SA Motorcycles (SA Motorcycles).

[2] Mr Pavlenko was employed by SA Motorcycles from 30 March 2015 until his dismissal which took effect on 18 April 2017. Mr Pavlenko was dismissed for allegedly breaching company policy and procedures. Amongst other matters, Mr Pavlenko denies that he was provided with the policies and procedures and claims that his conduct was known and tolerated within the business.

[3] The unfair dismissal application was lodged with the Commission on 15 May 2017 and this is beyond the relevant initial statutory period of 21 days within which such applications must be made. The Act, however, permits the Commission to allow a further period if it is satisfied that exceptional circumstances exist and that it is appropriate to grant an extension of time (EOT).

[4] Mr Pavlenko contends that there are exceptional circumstances and that the Commission should exercise its discretion to extend the time limit in order to allow the unfair dismissal application to proceed.

[5] SA Motorcycles opposes the EOT application and the unfair dismissal application itself. However, it did not seek to be further heard in relation to the EOT matter.[1]

[6] The EOT application was subject to a hearing by telephone on 8 June 2017, during which, Mr Pavlenko gave sworn evidence about the events leading to the late lodgement of the unfair dismissal application.

1. The statutory provisions and the required approach

[7] Section 394 of the Act relevantly provided as follows:

(a) within 21 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."

[8] Accordingly, s.394(2) of the Act provides a 21-day period within which to lodge the unfair dismissal application. The period is defined as being 21 days after the dismissal took effect and the 21-day period is exclusive of the day of the event; in this case, the dismissal.[2]

[9] Mr Pavlenko should have lodged the unfair dismissal application on or before 9 May 2017. It is therefore some 11 days "late".

[10] Section 394(3) of the Act provides the Commission with discretion to extend the time for lodgement beyond the 21-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take into account the considerations outlined in paragraphs (a) to (f) of s.394(3) of the Act. I have done so in this matter.

[11] Although the statutory discretion in s.394(2) requires the relevant considerations to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act. In assessing these matters, I have considered the ordinary and natural meaning of "exceptional circumstances" and whether the combination of factors in this case, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, or very rare but exceptional circumstances are not regularly, routinely or normally encountered.[3]

[12] Where "exceptional circumstances" are established, there remains discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in s.394(3) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that the time for making the application should be extended.[4]

1. The various statutory considerations as applied in this case

[13] It is convenient to consider the statutory considerations that inform the existence of exceptional circumstances by dealing with the issues that arise from them in the context of this application.

[14] Mr Pavlenko contends that he lodged his (original) unfair dismissal application using the Commission's on-line lodgement process on 5 May 2017. His evidence about this event was to the following effect:

• Soon after his dismissal, he researched the unfair dismissal jurisdiction and was aware of the requirements to lodge an application within 21 days and understood the general approach adopted by the Commission as to whether a dismissal was unfair;

• Mr Pavlenko considered that he had been dismissed unfairly and decided that he would lodge an application well within the 21 day limit;

• He went onto the Fair Work Ombudsman's website and created an account and then followed the links to the Commission's website;

• Mr Pavlenko then followed the on-line process for the lodgement of an unfair dismissal application and considered, at that time, that he had completed the form; and

• Informed others that he had done so.

[15] I accept the evidence of Mr Pavlenko about these matters.

[16] Despite the genuine belief of Mr Pavlenko, it is evident that he did not fully complete the lodgement process. He cannot recall being requested to pay the lodgement fee (or complete the fee waiver application) and there is no evidence that he did so. This is a necessary step in the process. Despite information that is provided as part of the initial steps in the on-line process about the requirement to make a payment (or seek a waiver) and the fact that a confirmation would be provided if the application was successfully made, neither of these things occurred. Given the research undertaken by Mr Pavlenko, this should also have raised immediate concerns about whether the application had been lodged.

[17] There is no evidence that the on-line lodgement system itself has not operated properly and it is clear that no application was in fact lodged within the Commission's system by Mr Pavlenko at that time. It is also clear to me that Mr Pavlenko is an intelligent person who was generally confident in his use of the technology and the on-line lodgement system.

[18] After a delay, Mr Pavlenko subsequently sought advice from a lawyer to whom he had been referred. This occurred on 15 May 2017. Upon being advised that some contact from the Commission should have been received by that time, Mr Pavlenko then immediately contacted the Commission and was advised that no application had been received by the Commission and that a (new) application should be lodged.

[19] Mr Pavlenko lodged the unfair dismissal application, and made the relevant payment, that same day using the on-line lodgement process. He received email confirmation of the application from the Commission later that day and was advised of a date for a conciliation conference within a few days. This was consistent with the information provided by the Commission at the outset of the on-line lodgement process.

[20] In summary, there is some explanation for the delay in lodging the application associated with the applicant's genuine, but misplaced, confidence that he had lodged the unfair dismissal application with the Commission on 5 May 2017. However, that explanation is not completely satisfactory given the context as a whole and it is all of the circumstances between the dismissal and lodgement that must be considered.[5]

[21] His subsequent conduct in pursuing the matter is however also relevant.

3.2 When did Mr Pavlenko first become aware of the dismissal after it had taken effect?

[22] Mr Pavlenko was aware of the dismissal on the day it took effect.

[23] This is a consideration militating against a finding of exceptional circumstances.

3.3 Any action taken by Mr Pavlenko to dispute the dismissal

[24] This consideration is clearly related in this case to the reasons for the delay as discussed above.

[25] Mr Pavlenko took action to research and make an attempt to lodge his unfair dismissal application within the time limit. He did not, however, complete the process and despite the information provided, failed to immediately follow up when he was not required to make the fee payment and did not receive any confirmation as would have been expected.

[26] Mr Pavlenko did however seek some advice within a relatively short period after nothing had been received from the Commission and immediately contacted the Commission and lodged a fresh application when advised to do so.

[27] This consideration produces mixed factors when applied to a potential finding of exceptional circumstances.

3.4 Is there prejudice to SA Motorcycles (including prejudice caused by the delay)?

[28] SA Motorcycles does not rely upon any particular prejudice. Although the absence of prejudice is not of itself a reason to grant an extension, this is a consideration supporting a finding of exceptional circumstances.

3,5 Is there merit in Mr Pavlenko's (unfair dismissal) application?

[29] The consideration of the merit of the application in this context is limited to an initial assessment on the face of the matter.[6]

[30] The merit of an unfair dismissal application must be assessed in the context of the relevant statutory considerations applying to these matters.[7] Whether the dismissal is unfair involves a global assessment, including consideration such as whether there was a valid reason for the dismissal and, in effect, whether it was handled in a procedurally fair manner.

[31] The alleged misconduct relates to drinking alcohol during working hours. On face value, this is a significant issue particularly in terms of work health and safety obligations. In its response to the unfair dismissal application, SA Motorcycles contends that this conduct was also in breach of the relevant policies, which were known to Mr Pavlenko, and contrary to a specific direction. The employer contends that this was a case of serious misconduct which was acknowledged by Mr Pavlenko in the lead up to the dismissal.

[32] Mr Pavlenko contends that the events concerned occurred on the Thursday evening before the Easter break and that drinking alcohol as part of breakups occurring on similar occasions was common. He also denies that he was instructed not to drink but rather was informed earlier in the afternoon that it was a bit early to start. Mr Pavlenko also contends that whilst another employee was also dismissed in connection with these events, others who were also involved were apparently not subject to significant disciplinary action.

[33] I cannot make any findings about the factual disputes evident from the above positions without hearing evidence from both parties and having that evidence properly tested.

[34] I accept for present circumstances that based upon the contentions advanced by Mr Pavlenko, the unfair dismissal application is not completely without merit. I confirm that the facts, and the consequences of those facts, would need to be determined at a hearing if an extension of time were to be granted. This would include the consequences of the fact that Mr Pavlenko was in a management role and may therefore have had some additional responsibility in terms of the apparent conduct.

[35] This consideration is a factor marginally supporting the existence of exceptional circumstances.

3.6 Fairness as between Mr Pavlenko and other persons in a similar position

[36] Another employee was apparently dismissed by SA Motorcycles in connection with the events apparently leading to this application. That employee has also made an unfair dismissal application and this matter may be considered by the Commission. Accepting those circumstances on face value, this consideration is supportive of the existence of exceptional circumstances.

[37] Further, I note that the consistent application of principles adopted by the Commission in similar matters, where an extension of time to contest a dismissal is sought,[8] is in line with this consideration and I have strived to adopt that approach in this case.

[38] There are various considerations in this case. These include the existence of some explanation for elements of the delay which is not entirely satisfactory. Further, the potential for prejudice to Mr Pavlenko if the unfair dismissal matter is not heard on its merits, and fairness as between other persons in a similar position. The nature of the explanation for the delay and some of the other considerations do not assist the making of a finding of exceptional circumstances.

[39] It is a reasonable inference that applicants in unfair dismissal matters may at times experience, or claim to experience, difficulties in the lodgement of their applications. Subject to the potential to seek an EOT, the obligation is upon those applicants to ensure that they have actually lodged the application within the initial time limit. The situation whereby an applicant may claim to, but does not in fact fully lodge the application, is not exceptional. The overall explanation for the delay in that context, and the other considerations need to be taken into account in determining whether in this case, a situation exists which is out of the ordinary course, unusual, special or uncommon.

[40] Having taken into account the factors cited in s.394(3) of the Act, I am not persuaded that exceptional circumstances within the meaning of the Act have been established. That is, I am not satisfied that there are exceptional circumstances such as to enable or warrant the exercise of the discretion to allow an extension of the timeframe for the making of the unfair dismissal application.

[41] An order[9] dismissing the application is being issued in conjunction with this decision.

[1] SA Motorcycles foreshadowed a request to delay the EOT hearing but did not proceed with that request following the provision of materials regarding the issue by Mr Pavlenko.

[2] S.36 of The Acts Interpretation Act 1901.

[3]Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, 16 February 2011 per Lawler VP, Sams DP and Williams C. Although decided in the context of a general protections application, the general approach outlined at pars [12] to [15] is applicable to the present considerations.

[5] See Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWBFC 349 at [31].

[6] That is, the prima facie merits Although also determined in a slightly different statutory context the decision in H Kyvelos v Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.

[8] See Ballarat Truck Centre Pty Ltd v Melissa Kerr [2011] FWAFB 5645, 29 September 2011 per Acton SDP, Kaufman SDP and Williams C.

[9] PR593677.

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