Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - application dismissed.

[1] This decision concerns an application by Mr Ivan Cowen (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.

[2] The Applicant was employed by Renascent Regional Pty Ltd (the Respondent) until his employment was terminated on 3 December 2020 with immediate effect. His unfair dismissal application was lodged on 11 January 2021.

[3] Section 394(2) of the 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 application in the present matter was filed 8 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).

[4] The 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]

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

• (a) the reason for the delay;

• (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);

• (e) the merits of the application; and

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

[6] The application was listed for hearing on 15 March 2021 to decide whether to extend time. Mr Michael Evans of Whiteley Ironside & Shillington Solicitors appeared with permission for the Applicant and Ms Erin Lynch of Vincent Young Lawyers appeared with permission for the Respondent.

[7] The Act does not specify what reasons for delay 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 the applicant's favour, however all of the circumstances must be considered.[3]

[8] The Applicant and his representative, Mr Evans, both filed statements in support of the application for an extension of time. The Applicant gave evidence that he met with Mr Evans on 21 December 2020 about the making of an unfair dismissal application. He stated that he was told by Mr Evans at the conference words to the effect that: "I will lodge the application today as our offices are closing on 23 December and we re-open on 11 January".

[9] The Applicant said that on 22 December 2020 he went to a property in Errowanbang and stayed there until 24 December 2020. According to him, there is no mobile phone reception at the property and he did not receive any notification of missed calls or voicemail messages during this period.

[10] That said, the Applicant stated in his second statement of 10 March 2021 that he had tried to call Mr Evans on 23 December 2020 but it was after 5:00 pm and he only got an answering machine message.

[11] On 11 January 2021, the Applicant sent an email to Mr Evans seeking confirmation that his application has been filed. His application was subsequently filed later that day.

[12] Mr Evans' evidence was that he had a conference with the Applicant on 22 December 2020 during which he sought information from the Applicant and advised him of the closure of the office for the Christmas holiday period.

[13] On 22 December 2020 Mr Evans sent an email to the Applicant attaching the draft application for his approval. Mr Evans said that he did not receive a reply or a 'bounce back' notification to the email. He tried to contact the Applicant on his mobile but was unable to speak to him. On 23 December 2020 he sent another email to the Applicant with the draft application. Again, no reply was received, and he was unable to contact the Applicant on his mobile phone. It was not until 11 January 2021 when he received an email from the Applicant that he became aware his emails were sent to the incorrect email address recorded by his secretary.

[14] Attached to Mr Evans' statement were copies of emails sent to the Applicant on 22 and 23 December 2020. His email to the Applicant on 23 December reads, in part:

"I refer to the below email and I've also called you a couple of times and left messages.

This needs to be filed tomorrow to be filed on time. I am not in the office but should be able to get it done if you can confirm your instructions by email. If you've decided not to go ahead that's fine too, just let me know."

[15] Mr Evans in his submissions acknowledged that when considered individually, each of the reasons may not be considered exceptional, but he submitted that the reasons for the delay, when taken together, became exceptional.

[16] In this case, he submitted, the Applicant took appropriate steps to protect his rights, and his solicitor took reasonable steps to progress the matter. The circumstances described above combined to frustrate the efforts of both the Applicant and his solicitor. Further, it was submitted that each individual event combined with the others in a way that was unusual or uncommon.

[17] The Respondent submitted that the reasons for delay are not out of the ordinary course, unusual, special or uncommon.

[18] To the extent there were inconsistencies between the evidence of the Applicant and Mr Evans, the Respondent contended that the evidence of Mr Evans should be preferred because it is consistent with the email he sent to the Applicant on 22 December and the email of the Applicant to Mr Evans on 11 January 2021, the effect of which is that little weight should be given to the statement of the Applicant.

[19] The Respondent submitted that this was not a matter where the Applicant had given clear instructions to his lawyer to file an application and the representative failed to do so. In this case, the Applicant did not follow up on his application until 11 January 2021 despite not having received confirmation that the application had been filed.

[20] The Respondent submitted that there was nothing out of the ordinary, unusual, special or uncommon about having an incorrect email address, being out of mobile reception range, or solicitors' offices being closed over the Christmas/New Year period and conversely, these are circumstances that are regularly encountered.

[21] I do not consider the factual circumstances in this case are what might be described as representative error. While the Applicant's email address had been incorrectly transcribed by Mr Evans' secretary, I am not satisfied that this is a case where clear instructions for the lodging of the application had been given to Mr Evans and he failed to do so. It seems clear Mr Evans was under the impression that that Applicant needed to confirm his instructions by way of approving the draft application before it was to be filed. He followed up with the Applicant by phone and email, albeit to the incorrect email address.

[22] Having considered the material before me, I am not satisfied, on balance, that the reasons provided by the Applicant constitute an acceptable reason for the delay. It is not in dispute that the Applicant knew he would be out of mobile phone range from the day after he met with Mr Evans. I accept that Mr Evans told the Applicant that his office would be closed after 23 December until 11 January 2021. The Applicant ought to have either advised Mr Evans he would be uncontactable after their meeting, knowing that was the case, or have ensured he was contactable.

[23] I consider this factor to be finely balanced and does not weigh in favour of or against a conclusion that there are exceptional circumstances.

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

[24] The Applicant was notified of his dismissal on 3 December 2020 and therefore had the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

[25] No action was taken to dispute the dismissal other than the making of this application. I consider that this weighs against a finding that there are exceptional circumstances.

[26] Whilst I do not accept that any prejudice would accrue to the Respondent if an extension of time were to be granted, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[27] The Act requires me to take into account the merits of the application.

[28] The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that 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. It is not possible to make any firm or detailed assessment of the merits in the absence of tested evidence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[29] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[30] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[31] I have had regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant. On balance, I am not persuaded that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. Accordingly, the application for an unfair dismissal remedy is dismissed.

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

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

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