Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed out of time - circumstances not exceptional - application dismissed

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

• [2] The Applicant states that his employment with Xpress Agi Hire Pty Ltd (Respondent) was terminated with effect from 12 August 2024. The Application was made on 2 October 2024.

• [3] 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 Fair Work Commission (Commission) allows pursuant to s.394(3).

• [4] Based on the information in the Application, the period of 21 days ended at midnight on 2 September 2024. The Application was therefore made 30 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.

• [5] In accordance with directions issued by me, both parties were given the opportunity to file materials in support of, or in opposition to, the application for an extension of time. The Applicant did not file any materials in accordance with my directions, relying on the Application and the accompanying attachments. The Respondent relied on its Form F3 Response.

• [6] The matter was heard before me on 28 November 2024. The Applicant was self-represented. The Respondent was represented by its Operations Manager, Mr Bhuvnesh Salhotra.

• [7] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).

• [8] 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]

• [9] 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.

• [10] 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.

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

• [12] I now consider these matters in the context of the application.

• [13] The Applicant is a truck driver and commenced full-time employment with the Respondent on 29 July 2024 following a transfer of employment from Get Along (NSW) Pty Ltd to Respondent. The Applicant contends that Get Along (NSW) Pty Ltd and the Respondent are related entities. The Respondent denies they are related entities.

• [14] On 12 August 2024, the Applicant stated that he attended a meeting with Mr Rakesh Palta and Mr Salhotra. The Applicant submitted that during this meeting Mr Palta agreed to promote the Applicant to fleet manager for the Sydney depot and increase the Applicant's salary. The Applicant stated that Mr Palta also agreed to reimburse the Applicant for some work-related expenses and rectify any unpaid entitlements.

• [15] On 14 August 2024, the Applicant stated that he had a heated discussion with Mr Palta because he had not received any allocation of work for 13 and 14 August, had not received the contract for the fleet manager position, and had not received any of the payments allegedly promised. Despite this, the Applicant continued to send text messages to the Respondent up to 22 August 2024 stating that he was available and waiting for work to be allocated.

• [16] On 27 August 2024, the Applicant sent correspondence to Mr Palta stating:

• That he has not received any work or response from the Respondent; and

• • That if the outstanding wages, payment in lieu of notice and reimbursement of expenses is not paid by 5:00pm that day, he will lodge a claim with the Fair Work Ombudsman.[4]

• [17] The Respondent denies that it dismissed the Applicant. The Respondent stated that on 12 August 2024 the Applicant was directed to attend work. The Respondent contends that the Applicant failed to attend work on 13 and 14 August 2024. The Respondent further contends that on 15 August 2024, the Applicant informed the Respondent that he no longer wanted to work for the Respondent and refused to confirm his availability thereafter.

• [18] Having regard to the limited material before me and the competing positions of the parties, which are not supported by sworn evidence, I find for the purposes of the application for an extension of time that the employment ended on 27 August 2024. It was at that point that the Applicant wrote to the Respondent threatening the lodging a claim with the Fair Work Ombudsman in response to the lack of work and seeking payment of outstanding wages and payment in lieu of notice. To the extent that the employment relationship remained on foot at that point, the correspondence sent by the Applicant was an acceptance of the Respondent's repudiatory conduct which terminated the employment.

• [19] I do not accept the Respondent's submission that the Applicant stated that he no longer wanted to work for the Respondent on 15 August 2024. The Respondent's submission is not supported by direct evidence and the screenshots of text messages sent by the Applicant requesting work after that date are inconsistent with that submission.

• [20] This means the Application was made 36 days after the dismissal, and 15 days outside the 21-day period. Accordingly, the Applicant will require an extension of time.

• [21] 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.[5]

• [22] The only explanation for the delay was set out in response to question 1.4 of the Application as follows:

They sent me an email saying that they would update my payments by the end of September.

• [23] During the hearing, the Applicant stated that the Respondent subsequently informed him that it would rectify any outstanding payments by the end of September 2024. The Applicant stated that although he was aware of the 21-day time limit, he waited to see if the Respondent would make the payments before making the Application. The Applicant stated that when the payments were not made by that date, he decided to make the Application.

• [24] It is well established that delaying the making of an unfair dismissal application whilst pursuing an alleged underpayment of wages or entitlements is not an acceptable or reasonable explanation for the delay.[6]

• [25] 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

• [26] The Applicant was aware that his employment ceased by 27 August 2024 and was aware of the 21-day time limit. Therefore, the Applicant had the full period of 21 days to make the Application.

• [27] This factor does not weigh in favour of a conclusion that there are exceptional circumstances.

• [28] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[7]

• [29] In Hunter Valley Developments Pty Ltd v Cohen[8], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[9]

• [30] There is no evidence of any action that the Applicant took to put the Respondent on notice that the dismissal is contested. This factor weighs against a conclusion that there are exceptional circumstances.

• [31] Neither party submitted that the Respondent would be prejudiced by the delay, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.

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

• [33] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. 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.

• [34] It follows that it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

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

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

• [36] The test of 'exceptional circumstances' establishes a 'high hurdle'. 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.

• [37] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).

• [38] The Application is dismissed. An Order to that effect will be issued with this decision.

• [39] Finally, I note this outcome does not prevent the Applicant from pursuing any unpaid wages or entitlements (if they remain unpaid) through a court of competent jurisdiction or by seeking the assistance of the Fair Work Ombudsman.

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

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

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

[6] Coles Supermarkets Australia Pty Ltd v Alexander Tapier [2021] FWCFB 2559 at [25]; Matthew Dakin v Farmgate MSU Pty Ltd [2022] FWC 1707 at [4]; Sxa Fang Chong v SSM International Pty Ltd [2022] FWC 2591 at [18]; Weijie Song v Hilltop Meats Pty Ltd [2022] FWC 3274 at [29]- [30]; Beau Paardekooper v Sherocon Pty Ltd [2022] FWC 3372 at [26]- [28].

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[8] [1984] FCA 176.

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