s.394 - Application for unfair dismissal remedy

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

[1] On 31 May 2023, Mr Daniel Bustamante (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Motor Trading Syd Pty Ltd (Respondent).

[2] Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

[3] In his application, the Applicant stated that his employment ended on 5 May 2023. Therefore, the application has been made outside of the 21-day period prescribed by s.394(2) of the FW Act.

[4] Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1] To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered.

[5] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

[6] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference in accordance with s.399 of the FW Act.

[7] In summary, I have found that the Applicant's employment ended on 5 May 2023. The application should have been made on 26 May 2023 to comply with s.394(2)(a) of the FW Act. The application was therefore made 5 days outside of the 21-day limit.

[8] I have found that the circumstances in which the application was made are not exceptional, according to the factors in s.394(3) of the FW Act, and so I have not granted an extension of time to file the application. The application is dismissed.

[9] On 7 June 2023, the Chambers of Vice President Catanzariti wrote to the Applicant requesting that he explain why his circumstances for lodging the application out of time were exceptional and provide any evidence to support that explanation.

[10] On 12 June 2023, the Applicant provided the following response:

I wish to Pursue the matter of unfair forced resignation and apologise for the 5 days over due period to lodge but due to the following I was unable to lodge within this period:

I have been dealing with the death of my mother and finalising all requirements needed to move forward. As you possibly could imagine this is not easy especially dealing with this matter interstate.

I have had to seek new employment as the main income earner in my family and undergo training throughout the day which gave me limited access enabling me to lodge earlier.

At this stage I am dealing with also ATO for my superannuation and the Fair Work Ombudsman for incorrect leave entitlements, the amount of time taken first to enquire on which department handles which enquiry is disappointing and made my situation even harder to deal with.

Please take the above as a genuine reason for the late application.

If needed I can provide my mothers death certificate, time off taken with medical certificates.

[11] On 14 June 2023, James Mutton, the Respondent's Managing Director sent the following email to my Chambers:

Just confirming we have received the applicants emails. We strongly believe the application is vexatious in nature and are currently obtaining legal advice as to the likely hood of costs being awarded Pursuant to section 611 of the act.

Can we please request that we have an extension for lodging our form F3 until after the commission has decided if the applicants request for an extension is approved or not so we are not further burdened unnecessarily?

We note that the applicants application was made well outside of the allowed 21 days. We also note that the applicant is fully aware his employment was not terminated and that he resigned from his position as mentioned in his own application. We have attached a screen shot of his resignation email for reference.

[12] The screenshot attached to Mr Mutton's email was an email from Mr Bustamante dated 7 April 2023 which stated:

To James Mutton, Kindly accept this letter as my formal resignation as the Sales Manager for Sydney City Motorcycles Campbelltown. My last day with the company will be Friday 5th May 2023. I am incredibly grateful for the Opportunities, the Growth, the Relationships I have had with Sydney City Motorcycles over the past seven years and the friendships I have formed with in the company and with customers. Let me know how I can assist in making the transition as seamless as possible.

[13] On 14 June 2023, my Chambers wrote to the parties advising that the matter was listed for directions conference at 10:00am on 21 June 2023 and that any queries regarding this matter, including in relation to an extension to file a Form F3 response, could be raised then.

[14] At the directions conference, the Applicant was self-represented and there was no appearance for the Respondent.

[15] During the directions conference, I said the following to the Applicant in relation to the material he was required to file:

Now I know that there was an email from Vice President Catanzariti's Chambers that you responded to and you provided some information....I think you offered to provide some proof. You will need to provide that proof as part of your evidence.

So any documents that you want to rely upon, you need to include them and that's really important because sometimes people come along after the Commission and they actually appear to have quite good reasons for lodging out of time, but they actually don't have any proof.

And so if you don't have any proof of the things that you're saying...potentially they're disregarded.

[16] I then made directions for the filing and serving of material and set the matter down for hearing at 10:00am on 7 July 2023.

[17] The Applicant and Respondent were both self-represented at the conference on 7 July 2023. Mr Mutton appeared at the conference on behalf of the Respondent.

[18] The Applicant gave evidence on his own behalf.

[19] The Applicant filed evidence and submissions in the Commission on 28 June 2023.

[20] The Respondent did not file any evidence or submissions and did not file a Form F3 response.

[21] The Applicant's evidence is that he ceased employment on 5 May 2023. The Respondent has not disputed this and in correspondence dated 14 June 2023 to the Commission provided a screenshot of an email from the Applicant to the Respondent dated 7 April 2023 advising of his resignation effective 5 May 2023.

[22] For the purpose of considering the matter pursuant to subsection 394(2) of the Act, I find that the alleged dismissal took effect on 5 May 2023.

Was the application made within 21 days after the dismissal took effect?

• [23] As the Full Bench has stated in relation to a general protections application, but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[2]

[24] As I found above, the dismissal took effect on 5 May 2023. The final day of the 21-day period was therefore 26 May 2023 and ended at midnight on that day.

[25] It is not in dispute, and I so find, that the application was made on 31 May 2023.

[26] The application having not been made within 21 days of the date on which the dismissal took effect, I now need to consider whether it was made within such further period as the Commission allows.

Should the Commission allow a further period for the application to be made?

[27] Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) whether the Applicant first became aware of the dismissal after it had taken effect; and

(c) any action taken by the Applicant to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

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

• [28] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

[29] I set out my consideration of each matter below.

• [30] For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 26 May 2023. The delay is the period commencing immediately after that time until 31 May 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

• [31] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]

• [32] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[6]

[33] As noted above the Applicant provided the following reasons for the delay in his email to the Commission dated 12 June 2023:

• The Applicant had been dealing with the death of his mother.
• The Applicant had to seek new employment as the main income earner in his family and undergo training throughout the day which gave him limited ability to lodge earlier.
• The Applicant was also dealing with the ATO for his superannuation and the Fair Work Ombudsman for incorrect leave entitlements. The amount of time taken to enquire which department handles which enquiry has made the situation even harder to deal with.

[34] The Applicant did not refer to any of these reasons in the material he filed with the Commission on 28 June 2023. In the Outline of Argument he filed, the Applicant stated, by way of explanation for why his application was made more than 21 days after the dismissal took effect:

FROM THE LAST DAY OF EMPLOYMENT 5MAY IS 19 WORKING DAYS ( DID NOT COUNT WEEKENDS.)

WHEN YOU FILL IN THE LINK TO SEE IF ELEGABLE [sic] WITHIN 21 DAYS TO PROCEED TO APPLICATION, IT CONTINUED TO THE END AND PROCEEDED TO CHARGE FOR THE CASE TO BE HEARD. I ASSUMED WITHIN TIME FRAME AS ONEY [sic] WAS TAKEN.

[35] In making this statement, the Applicant appeared to be saying either that he thought his application was filed within time, because it was lodged withing 21 working days, or alternatively, that he did not understand the time limit requirements.

• [36] It is well established that mere ignorance of the statutory time limit is not an exceptional circumstance.[7] Furthermore, the miscalculation of the required timeframe to lodge an application is not, without more, an exceptional circumstance.[8]

[37] The Applicant did not refer to the reasons he provided to the Chambers of Vice President Catanzariti on 12 June 2023 for lodging the application out of time in the Outline of Argument. The Applicant did not provide his mother's death certificate or any other documents in support of his submission that there are exceptional circumstances justifying an extension of time.

[38] The documents submitted by the Applicant were a series of emails exchanged between the Applicant and Mr Mutton in February 2023 in relation to events which the Applicant alleges led to his resignation.

[39] At the conference, the Applicant explained that his mother, who lived in Canberra, died unexpectedly on 25 February 2023, the Coroner was involved, his mother was buried on 15 March 2023 and he travelled to Canberra on multiple occasions to make arrangements and attend to other matters relating to his mother's affairs.

[40] The Applicant advised that he was looking for work after the cessation of his employment on 5 May 2023 and that he obtained new employment on 10 June 2023. I asked the Applicant to explain how these events prevented him from filing the application on or before 26 May 2023. The Applicant was unable to provide any explanation. In any event, the Applicant commenced employment in a new role after the application was filed, so the Applicant cannot rely on any training or other commitments arising from his new employment as a reason for the delay.

[41] The Applicant did not provide any information at the hearing about how his dealings with the Fair Work Ombudsman and the Australian Tax Office contributed to the delay.

[42] I accept that the Applicant was experiencing a stressful and distressing time arising from the sudden death of his mother in Canberra and the associated work in finalising her affairs and that this may have been compounded by employment issues which led to the alleged dismissal. The cessation of employment and the sudden death of a parent may individually be regarded as ordinary and common occurrences, but together could amount to exceptional circumstances in that an individual would not usually experience such significant life events at the same time.

[43] However, the Applicant did not explain why these events prevented him from lodging the Application on or before 26 May 2023. I would have been assisted by evidence from the Applicant explaining what activities he was engaging in connected with his mother's death and seeking employment between the time he was dismissed and the date he lodged the application however none was provided.

[44] Therefore there is no evidence before me about whether either or both of these events actually caused the delay in filing his application, or whether they were events that occurred around the same time of the dismissal but had no impact on the date the application was filed.

[45] In the circumstances I am not satisfied that the reasons for the delay advanced by the Applicant weigh in favour of a finding that there were exceptional circumstances.

Did the Applicant first become aware of the dismissal after it had taken effect?

[46] Given that the Applicant tendered his resignation on 7 April 2023 effective 5 May 2023, the Applicant first became aware of the alleged dismissal prior to the day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by the Applicant to dispute the dismissal?

[47] It is not in dispute, and I so find, that the Applicant did not take any actions to dispute the dismissal prior to making the application on 31 May 2023.

What is the prejudice to the employer (including prejudice caused by the delay)?

[48] The Applicant submitted that no particular prejudice to the Respondent can be identified. I find that prejudice to the Respondent is a neutral consideration in this matter.

[49] The Applicant alleged that he was dismissed within the meaning of s. 386(1)(b) because he was forced to resign from his employment due to conduct engaged in by the Respondent.

[50] The Applicant produced emails exchanged between the Applicant and Mr Mutton in February 2023. The emails referred to the possibility of the Applicant's employment being terminated if sales did not improve. However, there is no evidence in relation to the period of approximately seven weeks from when the last of these emails was sent to 7 April 2023, when the Applicant tendered his resignation.

[51] In the absence of any material filed by the Respondent and any evidence about the events which occurred immediately before the Applicant tendered his resignation, it is not possible for me to make any firm or detailed assessment of the merits of the application.

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

[52] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[53] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

1. The death of the Applicant's mother.
2. The Applicant seeking new employment.
3. The Applicant dealing with the ATO for superannuation and the Fair Work Ombudsman for incorrect leave entitlements.
4. The Applicant's mistaken belief that his application was filed within time, because it was lodged withing 21 working days, or alternatively, that he did not understand the time limit requirements.

(b) the Applicant becoming aware of the dismissal before it took effect;

(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;

(d) no issue of prejudice to the employer being identified;

(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and

(f) no issue of fairness arising as between the Applicant and other persons in a similar position.

• [54] 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.[9] 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.[10]

[55] The reasons for the delay, the time that the Applicant became aware of the dismissal and the lack of action taken by the Applicant to dispute the dismissal do not weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(d)-(f) are neutral considerations.

[56] Having regard to all of the matters listed at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

[57] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.

[58] The Applicant's application for an unfair dismissal remedy is therefore dismissed. I order accordingly.

[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234 at [15]

[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

[8] Jalil v BMD Constructions Pty Ltd [2014] FWC 9357, [7].

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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