s.394 - Unfair dismissal

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

[1] This decision concerns an application by Mr Lee Young for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Mr Young was employed as a retail assistant by High Wired Pty Ltd from January 2019 until his dismissal on 3 December 2019 for allegedly stealing approximately $1,600.00 in proceeds from sales. Mr Young denies the allegations and contends that his dismissal was unfair.

[2] 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). Mr Young's dismissal took effect on 3 December 2019. He lodged his unfair dismissal application on 27 December 2019.

[3] Mr Young's unfair dismissal application was listed for a jurisdictional hearing in relation to the question of whether the application had been lodged within time and if not, whether an extension of time should be granted.

[4] Mr Young's primary contention was that he filed his application within the 21 day period. He said that the twenty-first day after his dismissal took effect was 25 December 2019, and that because that day was a public holiday, the 21 day period expired on the next day that was not a public holiday, namely 27 December 2019. I reject this contention. Mr Young miscounts the 21 day period.

[5] An unfair dismissal application must be made 'within 21 days after the dismissal took effect'. Mr Young's dismissal took effect on 3 December 2019. One day after the dismissal took effect was 4 December 2019, and twenty-one days after the dismissal took effect was 24 December 2019. The 21 day period expired at midnight on Christmas Eve. It is not necessary to have regard to the rules that apply when the 21 day period ends on a day that is a public holiday,[1] because 24 December 2019 was not a public holiday. Mr Young's application was filed out of time. In order for the Commission to hear and determine the merits of the application, the Commission would first need to grant a further period for the application to be made.

[6] Mr Young's alternative contention was that if his application was filed out of time, the Commission should grant a further period, having regard to the statutory considerations in s 394(3).

[7] 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'. The test of 'exceptional circumstances' establishes a high hurdle for an applicant.[2] The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),[3] where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can 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. The decision in Nulty concerned the expression 'exceptional circumstances' in the context of s 365 of the Act however its reasoning is also applicable to s 394(3).

[8] 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 the Commission considers that it is fair in all the circumstances to do so.

[9] 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.

[10] I now consider these matters in the context of Mr Young's application.

[11] 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.[4] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd a Full Bench noted that 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.[5]

[12] Mr Young cited several matters as reasons for the delay in lodging his application. He said that he was under financial strain following his dismissal, and that he was unable to pay for legal advice in relation to his unfair dismissal application. He said that he was waiting to consult with a certain solicitor who had offered to assist him for free but was ultimately unable to do so. Mr Young said that during this time he was 'sitting on his hands', and that by the time he realised that the solicitor could not assist him it was 23 December 2019 and he had very little time left to prepare and file his application. Mr Young also said that he was busy looking for work at this time and, as he said in his application, was 'dealing with Christmas', all of which did not help with submitting his application on time.

[13] I do not consider these matters to be an acceptable or reasonable explanation for the delay. Mr Young's financial position and unsuccessful efforts to obtain free legal assistance did not prevent him from filing his application on time. It was Mr Young's choice to seek to have a solicitor assist him. Unfair dismissal applications can be made without any assistance from a lawyer. Material to assist the general public in lodging applications is available on the Commission's website. Many applicants prepare and file their own applications. Mr Young said that he had previously represented himself in proceedings before the Victorian Civil and Administrative Tribunal and had found this to be very difficult. However, Mr Young could have filed his unfair dismissal application himself, and then sought to be represented at the hearing, although in this regard, he would have needed to seek the permission of the Commission to be represented by a lawyer under s 596 of the Act.

[14] In the jurisdictional hearing Mr Young also contended that, if his calculation of the 21 day period was incorrect, this simply reflected his lack of understanding of the legal position. He also said that the delay in question was only a small one. However, failure to understand the relevant requirements is not an acceptable reason for delay, and the relatively small period of the delay is not a factor that somehow tells in favour of granting an extension. Nor are these exceptional circumstances.

[15] I am not satisfied that Mr Young has made out an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application. This weighs against an extension of time.

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

[16] Mr Young was notified of his dismissal on the same day that it took effect. He had the full period of 21 days to lodge his unfair dismissal application. This is not a case where the person became aware of the dismissal after the date on which it took effect, and therefore did not have the full benefit of the 21 day period for lodging the application. This consideration therefore does not weigh in favour of an extension of time.

[17] Mr Young submitted that he disputed his dismissal by strongly protesting his innocence of the alleged misconduct at the time of his dismissal. He also filed his unfair dismissal application. I doubt that the latter is relevant, because there will always be an unfair dismissal application before the Commission when it is considering an application for an extension of time under s 394(3). In any event, I do not consider that these circumstances weigh in favour of an extension of time.

[18] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. 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. It is a neutral factor. Some decisions of the Commission take a different view and see the absence of prejudice as telling in favour of an extension. But even adopting this approach, in this case at least, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[19] The Act requires me to take into account the merits of the application in considering whether to allow a further period for the application to be made.

[20] Mr Young was dismissed for allegedly keeping some $1,600.00 in proceeds from the sale of the company's herbal marijuana substitute product. Mr Young said that he did not do what he was accused of and that his employer did not properly investigate the matter. He said that the director of the company, Mr Edwards, had claimed to have counted the stock immediately before and after each of Mr Young's shifts over a month but that this could not be right because Mr Young had not seen Mr Edwards more than twice over this period. Mr Young said that he asked his employer to review the CCTV footage and to involve the police so that the matter could be properly investigated but that the company did not do either of these things. Mr Young also questioned whether in fact any product or money was missing at all.

[21] Mr Edwards, who appeared in the jurisdictional hearing for the company, said that he did not take the decision to dismiss Mr Young lightly. He said that he spent some days conducting searches and believed that he reached the correct conclusion that Mr Young had engaged in the conduct concerned.

[22] The merits of Mr Young's unfair dismissal 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. Much could depend on assessments of witness credibility. It is not possible to make any firm or detailed assessment of the merits. However, Mr Young's application is not without merit. He has at least a reasonable prima facie case that his dismissal was unfair on the basis that the allegations against him are not substantiated and that there was no valid reason for dismissal. The company has not advanced any detailed explanation of its investigation or the basis upon which the Commission should conclude, if the application were to proceed, that its allegations against Mr Young were substantiated.

[23] In my view the merits of the case weigh in favour of an extension of time.

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

[24] In relation to this consideration, Mr Young said that he believed anyone accused of gross misconduct should not be dismissed without the misconduct having been proved. If the application were to proceed to a merits hearing, the question of whether the allegations against Mr Young were substantiated would of course be a central consideration. However, it is not clear to me how this relates to the question of 'fairness as between the person and other persons in a similar position.'

[25] Applications to extend time generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Young and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[26] Mr Young said that, since losing his job, he has been evicted from his home, and is 'couch surfing'. The dismissal has had a heavy financial impact on him, which has been exacerbated by the circumstances surrounding the current coronavirus pandemic, and that he has not been able to find other employment. I appreciate that Mr Young's circumstances are very difficult. However, losing one's job often brings with it serious financial consequences. Under s 394(3), the Commission does not have a general discretion to extend time. The Commission's power is strictly limited by s 394(3), which states that a further period may be allowed if the Commission is satisfied that there are exceptional circumstances.

[27] I note that, after the hearing, Mr Young sent a message to the Commission, objecting to the fact that Mr Edwards was allowed to make oral submissions, given that he had not previously filed any written submissions. Mr Young said that this put him at a disadvantage, because he had to respond in the hearing immediately to what Mr Edwards said, whereas Mr Edwards had had the benefit of being able to read Mr Young's submission. Had Mr Young asked for further time to make additional submissions in response to what Mr Edwards said during the hearing, I would have granted him this opportunity. But he did not do so. Nor did he seek to make further submissions in reply after the conclusion of the hearing.

[28] In fact, Mr Edwards said very little at all during the hearing. He said that he believed he had reached the correct conclusion that Mr Young had committed the conduct in question. But so much was clear from Mr Young's own application. Mr Edwards also said that the 21 day period in the Act should be observed. But this simply reflects what the Act provides, namely that it is only in exceptional circumstances that the period will be extended. Mr Young did not suffer any disadvantage in the hearing. In any event I place no reliance on what Mr Edwards said. Even if Mr Edwards had not participated in the hearing at all, I would have reached the same conclusion.

[29] The time limit that applies to the exercise of a person's right to bring an unfair dismissal application reflects the Parliament's intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[30] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Mr Young, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.

[31] I decline to grant an extension of time under s 394(3). Accordingly, Mr Young's application for an unfair dismissal remedy must be dismissed.

[1] See Acts Interpretation Act 1901, as in force on 25 June 2009, and s 40A of the Fair Work Act

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [14]

[3] [2011] FWAFB 975

[4] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP, at [16]

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39]

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