s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 12 days out of time - extension granted.

• [1] On 9 July 2024, Mr Jason Santocono applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy by lodging a Form F2 - Unfair Dismissal Application (Form F2). The respondent named in the Form F2 was Inform Building Permits but the termination letter filed with the Form F2 suggests that the correct legal name for the respondent was Inform Building Permits Pty Ltd. Accordingly, I determined it was appropriate to exercise the discretionary power in s.586 of the Act and correct the name of the respondent to Mr Santocono's application so that it is henceforth recorded as being Inform Building Permits Pty Ltd (the Respondent).

• [2] The Form F2 outlined that Mr Santocono was notified of his dismissal and that the dismissal took effect on 6 June 2024. The period of 21 days in s.394(2)(a) of the Act for Mr Santocono to make an unfair dismissal application ended at midnight on 27 June 2024. Mr Santocono's application was filed 12 days outside this 21-day period on 9 July 2024 and, as such, he requires the Commission to allow him an extension of time (s.394(2)(b)). I conducted a determinative conference on 20 August 2024. Both parties were notified of the determinative conference in advance but only Mr Santocono attended. I received into evidence the Form F2 and attachments, together with the material filed by Mr Santocono in accordance with my directions dated 22 July 2024.[1]

• [3] 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.[2] 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.[3]

• [4] Section 394(3) of the Act states that the Commission may allow a further period for the application to be made if the Commission is satisfied that there are execeptional 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."

• [5] 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.

• [6] The 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 the applicant's favour, however all the circumstances must be considered.[4]

• [7] The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 27 June 2024. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 12-day delay, or any part of that delay, beyond the 21-day period.[5]

• [8] It may be observed that, upon being notified of his dismissal, Mr Santocono's initial focus was on redundancy pay and entitlements. This was because redundancy was the purported reason the Respondent gave for the termination of Mr Santocono's employment as an Assistant Building Surveyor on 6 June 2024. During the 21-day period that followed, Mr Santocono made enquiries to the Fair Work Ombudsman and the Australian Taxation Office (ATO) and researched the websites of both the Commission and JobWatch. While this research alerted him to the 21-day period within which to lodge an unfair dismissal application, Mr Santocono did not initially believe that he had grounds to make an unfair dismissal claim. The 21-day period for the making of an unfair dismissal application therefore expired at midnight on 27 June 2024. Mr Santocono subsequently discovered a Seek job advertisement (Job Advertisement) on 4 July 2024 and, having previously commenced dialogue with Ms Sophie Whyte from Haste Recruitment regarding new employment, asked for the identity of the prospective employer. Ms Whyte sent an SMS message in reply at 6.41pm on Friday 5 July 2024 which stated "that one is with inform unfortunately."

• [9] At this point, Mr Santocono formed the view that his redundancy may not have been genuine because the Job Advertisement was for an Assistant Building Surveyor (his previous position), with the Respondent (his previous employer). Upon discovering this information, Mr Santocono said that he spent from 5 to 8 July 2024 investigating his eligibility to make an unfair dismissal application. Mr Santocono also discussed his circumstances with "Fairwork", the ATO and a director of his former employer, Mr Steven Esler, during this period. Mr Santocono said that, in a telephone conversation with Mr Esler at 9.53pm on Sunday 7 July 2024, Mr Esler undertook to make enquiries with the Respondent's accountant regarding a redundancy package. Mr Santocono said he next heard from Mr Esler at 6.18pm on Monday 8 July 2024, at which time Mr Esler informed him that he had not yet spoken to the accountant. At 2.42pm on Tuesday 9 July 2024, Mr Esler again telephone Mr Santocono. As to this conversation, Mr Santocono said he was told by Mr Esler that he (Mr Esler) had not authorised the Job Advertisement and further, that it was the Respondent's view that Mr Santocono was not eligible for unfair dismissal. Mr Santocono said that later that day, at 8.52pm, he discovered the Job Advertisement was deleted from the Seek website[6] and so he proceeded to file his unfair dismissal application shortly after.[7]

• [10] Having regard to these matters, I accept Mr Santocono's proposition that because the termination of his employment on the basis of redundancy appeared genuine until he became aware of the Job Advertisement on 5 July 2024, it is credible that his application for an unfair dismissal remedy could not have been made any earlier than Friday 5 July 2024. Therefore, I consider there is a credible explanation for the first 8 days of the 12-day period of delay from 28 June 2024 until 9 July 2024. Further, although I am satisfied that Mr Santocono already knew he was outside the 21-day time period when he became aware of the Job Advertisement, I have noted the steps Mr Santocono took between 5 and 9 July 2024 and, in particular, his dialogue with Mr Esler.

• [11] I am satisfied the reason for the delay in this case weighs in favour of a finding of exceptional circumstances. There is an acceptable and reasonable explanation for 8 days out of the 12-day period of the delay from 28 June 2024 until 9 July 2024 and I have noted the steps taken by Mr Santocono between 5 and 9 July 2024.

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

• [12] I am satisfied that Mr Santocono was aware he would be dismissed with immediate effect on 6 June 2024 and, therefore, had the full period of 21 days to lodge his application. This consideration is a neutral consideration.

Action taken to dispute the dismissal - s.394(3)(c)

• [13] Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.[8] In this case it is understandable that Mr Santocono did not initially challenge his dismissal directly with the Respondent. He eventually took action after he discovered the Job Advertisement, when he commenced telephone dialogue with Mr Esler on 7 July 2024. As Mr Santocono took this action to dispute his dismissal, this factor weighs in favour of a finding that there are exceptional circumstances.

• [14] I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice, however, is not in my view a factor that would point in favour of the grant of extension of time but even if one were to consider the absence of prejudice as favouring of an extension, I would attribute it very little weight in the consideration of whether there are exceptional circumstances.

• [15] I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

• [16] In addressing the merits, Mr Santocono asserted the following:

1. Despite having been made redundant on 6 June 2024, his previous role as Assistant Building Surveyor was advertised on Seek as early as 4 July 2024, without him having been invited to reapply and this suggests the Respondent requires the job he was performing at the time of his redundancy (i.e. an Assistant Building Surveyor) was required to be performed by someone else;

1. The Job Advertisement was taken down after he raised it with Mr Esler; and

1. Mr Mathew Hart, another former Assistant Building Surveyor previously employed by the Respondent, was re-employed as an Assistant Building Surveyor on or around 15 July 2024.

• [17] While the Job Advertisement outlined that the location of the position was Mount Waverley, Mr Santocono provided details of the Respondent having had offices in both Geelong, where he had been located, and Mount Waverley. Further, Mr Santocono asserted that 90% of his work had been "Mount Waverley work", which he had been able to perform despite having been based in Geelong. Mr Santocono also took issue with the Respondent's assertion of having been a small business at the material times, asserting the Respondent had related entities operating in respect of Geelong and Mount Waverley.

• [18] The weight to be given to this merits consideration is dependent on the extent to which there is merit in the substantive application.[9] In this case, it is not possible to make any firm or detailed assessment of the merits. It is evident to me that the merits of Mr Santocono's unfair dismissal application would turn on some points of fact, which would need to be tested if an extension of time were granted and the matter was to proceed to arbitration. Mr Santocono is not without a prima facie case, to which the Respondent raises some counterpoints in its Form F3-Employer response to unfair dismissal application[10] and the Small Business Fair Dismissal Code Checklist.[11] I apprehend that the arguments and counter-arguments relating to whether Mr Santocono's previous position was redundant would most certainly be further developed and tested. The merits of the application would depend on factual findings made at the final hearing. In these circumstances, I consider the merits of Mr Santocono's unfair dismissal application to be a neutral consideration in relation to whether or not I should extend time.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

• [19] 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. Mr Santocono did not bring to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. The matters Mr Santocono raised were instead directed at the merits of his case. This consideration is a neutral consideration.

• [20] The requirement is that there be exceptional circumstances before time can be extended under s.394(3) of the Act. This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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.

• [21] The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[12] which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, outlined reasoning also applicable for applications for extensions of time for unfair dismissal applications:

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each."[13]

• [22] Having considered each of the considerations in s.394(3) of the Act, I have found paragraphs (b), (e) and (f) are neutral while paragraphs (a), (c) and (d) weigh in favour of the grant of an extension, albeit not to any great degree in the case of paragraphs (c) and (d). The distinguishing factor in this case is that any suggestion that Mr Santocono's dismissal was not a bona fide redundancy only arose after the 21-day time period for the making of an unfair dismissal application had expired. Having weighed each of the considerations in s.394(3) of the Act and having considered them collectively, I am satisfied the combination of factors, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.

• [23] I have been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act and I am also satisfied that it is appropriate to exercise my discretion to extend the time for Mr Santocono to make the application to 9 July 2024. An order[14] to that effect will be issued with this decision and the matter will now be the subject of further directions.

[1] This bundle of documents was included in the Digital Court Book (DCB) at pages 2-45 and marked Exhibit A1.

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

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

[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[9] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71].

[12] [2018] FWCFB 901.

[14] PR778388.

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