s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

• [1] This is an edited version of my decision delivered ex tempore and recorded in transcript on 23 December 2022.

• [2] An application by Mr Beau Paardekooper (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) was lodged on 20 October 2022 (Application).

• [3] In the Application, the Applicant states that his employment with Sherocon Pty Ltd (Respondent) was terminated with effect from 23 September 2022.

• [4] Section 394(2) of the FW Act states 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 period of 21 days ended at midnight on 14 October 2022. The Application was therefore filed six days outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.394(3).

• [5] Prior to the allocation of this matter to my chambers, the chambers of Vice-President Catanzariti sent correspondence to the Applicant on 9 November 2022 advising that the Application appeared to be out of time and inviting the Applicant to provide any preliminary submissions. On 10 November 2022, the Applicant filed a response stating, "This information enclosed prepared by the youths legal service is a true and correct account of my situation and application for unfair dismissal."

• [6] Following the allocation of the matter to my chambers, I issued directions giving both parties an opportunity to file any further materials in support of, or in opposition to, the Applicant's application for an extension of time.

• [7] The Applicant did not file any further materials. On 14 December 2022, the Respondent filed its Form F3 Employer Response and a statement of Mr Brad Peters.

• [8] For the reasons that follow, I decline to grant an extension of time under s.394(3).

• [9] The FW 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]

• [10] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [11] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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);

(f) fairness as between the person and other persons in a similar position.

• [12] 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.

• [13] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[3]

• [14] I now consider these matters in the context of the Application.

• [15] The FW Act does not specify what reason for 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 an applicant's favour, however all of the circumstances must be considered.[4]

• [16] The Applicant commenced his employment with the Respondent as an apprentice carpenter on 31 July 2017. Following the completion of his apprenticeship, he remained employed with the Respondent as a carpenter and for a short period, was engaged as a site supervisor.

• [17] On 23 September 2022, the Applicant had a telephone discussion with Mr Sheridan, the Respondent's director. In this discussion, Mr Sheridan raised examples of poor workmanship completed by the Applicant that resulted in defects and required rectification by the Respondent.[5]

• [18] The Applicant submits that during the telephone call Mr Sheridan told him to "pack [my] bags and leave".[6] The Respondent submitted that Mr Sheridan warned the Applicant that if he couldn't complete work to the Respondent's standards, he could "pack [his] tools up".[7] The Respondent denies that it terminated the Applicant's employment.

• [19] Irrespective of which version of that telephone call is accepted, it is not in dispute that the Applicant's employment ended that day.

• [20] On 6 October 2022, the Applicant contacted the Fair Work Ombudsman (Ombudsman) and says he was advised that due to the industry specific redundancy scheme set out in clause 41 of Building and Construction General On-site Award 2020 (Award), he is entitled to eight weeks' redundancy pay. Furthermore, the Applicant says he was advised by the Ombudsman that he is also entitled to four weeks' pay in lieu of notice pursuant to s.117 of the FW Act.

• [21] The Applicant further submitted that he was advised by the Ombudsman that he did not need to make an application for unfair dismissal as he had a legal entitlement to receive 12 weeks' pay.

• [22] On 7 October 2022, the Applicant sent a 'letter of demand' to the Respondent seeking payment of eight weeks redundancy pay and four weeks' pay in lieu of notice. On the same day, the Applicant submitted that he had a further discussion with the Ombudsman who referred him to the Youth Law Australia Young Workers' Rights Service.

• [23] On 19 October 2022, and not having received any response to the letter of demand, the Applicant contacted the Youth Law Australia Young Workers' Rights Service. The Applicant submitted that he was advised that the period of his apprenticeship would affect the quantum of any entitlement to redundancy pay under the Award and was advised to file an application for unfair dismissal. The Application was filed the next day on 20 October 2022.

• [24] The Applicant submitted that the Ombudsman had provided incorrect advice regarding the quantum of redundancy pay and had he known that his entitlement under the Award was affected by the period of his apprenticeship, he would have filed an application for unfair dismissal.

• [25] During the proceedings before me, the Applicant confirmed that during his discussions with the Ombudsman he was not otherwise aware that he could make an unfair dismissal application.

• [26] I cannot accept the Applicant's submissions that the Ombudsman provided incorrect advice in the absence of clear evidence.[8] In this respect, the Applicant has not provided any witness statement setting out the nature of the advice or assistance sought, nor has the Applicant filed any supporting records from himself or the Ombudsman relating to this enquiry.

• [27] It is clear on the letter of demand that the Applicant was pursuing alleged unpaid entitlements and when it became apparent to him that those entitlements would not be paid, or would not be as substantial as he expected, he decided to file the Application.

• [28] It is well established that a delay in filing an unfair dismissal application whilst pursuing an alleged underpayment of wages or entitlements is not an acceptable or reasonable explanation for the delay.[9]

• [29] In relation to the Applicant's submission that he was not otherwise aware that he could make an unfair application, it is difficult to accept that given the Applicant's submission that he would have made an unfair dismissal application if he had known his period as an apprentice affected any entitlement to redundancy pay. In any event, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[10]

• [30] Accordingly, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

• [31] The Applicant was aware that his employment ceased on 23 September 2022 and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [32] The only action taken by the Applicant to contest the alleged termination of his employment, other than the filing of the Application, was the sending of the letter of demand to the Respondent on 7 October 2022. The Applicant submitted that the letter of demand was action taken to contest to the 'dismissal'.

• [33] On a fair reading of that correspondence, it does not dispute the dismissal, or refer to the alternative action of making an application for an unfair dismissal remedy if the Respondent does not comply with the demand. Accordingly, and I so find, the letter of demand was not action taken to dispute the dismissal. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [34] The Applicant submitted that the Respondent has not suffered any material prejudice, and I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted.

• [35] However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of an extension of time. I therefore consider this to be a neutral consideration.

• [36] The FW Act requires me to take into account the merits of the Application in considering whether to extend time. While there is no dispute that the employment ceased on 23 September 2022, the parties are in dispute as to whether the Applicant's employment was terminated at the initiative of the employer, or whether he resigned.

• [37] Accordingly, it is not possible to make any firm or detailed assessment of the merits, as 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. I consider the merits to be a neutral consideration.

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

• [38] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [39] 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.

• [40] 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).

• [41] Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

[8] See Moutafis v IA Support Pty Ltd T/A Imaging Associates [2022] FWC 772 at [32]; Touzell v Sport Integrity Australia [2022] FWC 1410 at [49].

[9] Coles Supermarkets Australia Pty Ltd v Alexander Tapier [2021] FWCFB 2559 at [25]; Matthew Dakin v Farmgate MSU Pty Ltd [2022] FWC 1707 at [3]; Sxa Fang Chong v SSM International Pty Ltd [2022] FWC 2591 at [18].

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

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