Fair Work Act 2009

s.394 - Unfair dismissal

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

• [1] Mr Maarino Graves (the Applicant) lodged a s.394 application under the Fair Work Act 2009 (the Act) for unfair dismissal remedy in relation to the termination of his employment with Maritimo Labour Pty Ltd (Maritimo or the Respondent).

• [2] Mr Graves was employed in the position of Stainless-Steel Polisher, as a casual employee from 30 January 2017 until his dismissal on 10 January 2024. The unfair dismissal application was lodged on 15 April 2024, 75 days after the statutory 21-day limit.

• [3] The hearing for an extension of time was held on 31 May 2024. The Applicant was self-represented and gave oral evidence. The Respondent was granted leave to be represented by Hopgood Ganim Lawyers. The following witnesses gave evidence for the Respondent:

• Mr Kym Fleet, Production Manager
• Ms Debbie Brown, Payroll Officer/ Accounts Payable
• Mr David Alderson, Stainless Steel Fabrication Supervisor.

• [4] Mr Graves acknowledges that his application is late but seeks an extension of time. Maritimo however, submit that there are no exceptional reasons to grant an extension of time.

• [5] The Act allows for an extension of time by the Commission if it is satisfied that there are exceptional circumstances. 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]

• [6] Section 394(3) of the Act 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; 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.

• [7] 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. I now consider these matters in the context of the Application.

• [8] 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 of the circumstances must be considered.[3]

• [9] Mr Graves submits that on being dismissed he was angry, confused and upset. However, the main reasons for the delay were financial and a fear of retribution towards his brother who was still employed by the Respondent. It is submitted that Mr Graves spent all of his money over Christmas and on losing his job on 10 January 2024, he could not afford to file an application, nor afford the quoted price of representation when he contacted a "law firm" having attempted to contact the Fair Work Commission. He submits that he could not recall the name of the "law firm".[4]

• [10] Mr Graves described his efforts with his mother's assistance while looking over the Commission's website soon after his dismissal and then calling the law firm, instead of the Fair Work Commission. He says that he can't recall how he managed to speak to the law firm and could not recall their name. I observe that in April when he filed his application, he also applied for fee relief which was granted, consequently no cost was incurred in the application. Furthermore, Mr Graves did not report any difficulty with the Commission's resources on its website.

• [11] Mr Graves submits that after the dismissal of a friend and his brother - both stainless steel polishers like himself, the 3 together with his mother discussed challenging their dismissals, contacted the Fair Work Ombudsman and again reviewed the Commission's website. During the hearing it was confirmed that the friend was dismissed on the same day and his brother on 13 March 2024. Mr Graves also gave evidence that all of the materials filed with the Commission were handwritten by his mother and not himself. When asked why he did not prepare his own application the reason given to the Commission was because his mother's handwriting was neater.

• [12] In oral evidence Mr Graves states that he was well aware of the 21-day statutory timeframe and knew that he had to seek an extension of time, he also states that the Fair Work Ombudsman advised him of the challenging high bar involved in making an extension of time application. .

• [13] Mr Graves provided no explanation for the delay from the date of his brother's dismissal on 13 March and the date of application on 15 April 2024.

• [14] The Respondent submits the explanation for the delay of 3 months and 5 days is not exceptional and the reason of fear of retribution was contrived at the time of making the application.

• [15] On the evidence and submissions made, Mr Graves' explanations are neither out of the ordinary course, unusual, special or uncommon. The making of the application including the application of fee waiver is a simple process which does not require legal representation. The cost of representation, presumably based on the quote by the law firm was not necessary, nor proved to be a deterrent from filing this application. I do not accept the fear of retribution to be a valid explanation, as Mr Graves stated himself in evidence that if his 7 years' service did not mean anything to the Respondent, and he did not expect anything otherwise in his brother's case where he served a lesser period of 3 years' service.

• [16] The 21-day period is intended to serve a purpose, no credible reason was given for this application which was made 96 days after the dismissal and 75 days late.

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

• [17] Mr Graves was clearly aware that his dismissal occurred on 10 January 2024. The evidence from Mr Fleet was that he pulled aside Mr Graves at 9.00am on 10 January 2024 and said words to the effect of:

(c) I will pay you until noon on Friday 12 January 2024."[5]

• [18] Mr Fleet further gave evidence that Mr Graves collected his personal belongings and left the premises and at 9.11am on the same day Mr Fleet sent an email to management and Ms Brown confirming that he dismissed Mr Graves.[6]

• [19] Mr Graves does not dispute the evidence of Mr Fleet except for the alleged statement that he was told he would be paid until Friday 12 January 2024. It is not disputed that Mr Graves immediately collected his personal belongings and left the workplace after Mr Fleet dismissed him, clearly directing him to leave. On this basis Mr Graves clearly had the full benefit of the 21 days to file his unfair dismissal application. This consideration does not weigh in favour of the extension.

• [20] For the Respondent, Mr Fleet and Ms Brown gave evidence that rather than Mr Graves challenging his dismissal, his mother called asking why her son was dismissed. Ms Brown gave evidence that she received 2 telephone calls and in the second phone call on 3 April 2024 she was told by Mr Graves' mother that 3 unfair dismissal applications were to be made despite them all being out of time.

• [21] Mr Graves took no action himself to challenge his dismissal with the Respondent. The application was lodged not by Mr Graves, but his mother. Having observed both Mr Graves and his mother, together with the benefit of reviewing the filed materials it is my view that the mother and not Mr Graves took all steps to challenge the dismissal. The absence of any evidence of motivation by Mr Graves to challenge his dismissal with the Respondent does not weigh in his favour.

• [22] Neither party addressed this issue, therefore it is a neutral factor.

• [23] Mr Graves submits that after 7 years of loyalty to his employer and without warning or any due process, he was dismissed immediately. Having been told that he was no longer required, he submits that he was confused over the reason for his dismissal because he consistently worked full-time hours, despite being paid as a casual employee, and the only issue that he considered may have been relevant was that he selected a more expensive face mask on the same morning of the dismissal.

• [24] In relation to the face mask, the Respondent submits that a new OHS regulation required the Respondent to fit all staff with facial masks which occurred at or around 6.30am on the day of the dismissal. Despite Mr Graves' fear that he was dismissed for his selection of the more expensive mask due to having facial hair, the Respondent denied it was a factor. During cross examination, Mr Fleet offered that it was only necessary to fit the mask once, which may require shaving only once as it was unnecessary to wear the mask. Nonetheless, Mr Graves formed the view that the mask was a relevant incident leading to his dismissal. Despite the denials of the Respondent, the evidence of Mr Fleet appeared unconventional to the purpose of respiratory protective equipment (masks) intended to prevent exposure to airborne contaminants by a worker.

• [25] It is unclear given the Respondent's decision to dismiss Mr Graves because of its resolution to import finished polished steel product, why Mr Graves participated in the fitting of masks on the day of his dismissal. Mr Fleet gave evidence that the business determined it no longer required 4 steel polishers, so it dismissed 3 of the 4 steel polishers mainly because of the alleged poor workmanship and/ or conduct of those polishers. Where the loss of jobs arose due to the change in business process, i.e. to import the product since September 2023 and do away with the requirement of labour, the surplus labour represents redundant jobs. Yet, the process to dismiss Mr Graves was not in accordance with conventional practices required in such circumstances. It was uncontested that Mr Graves was sent an employment separation certificate within a week of the dismissal which cited loss of job because of imported product. While the certificate provides a reason for the dismissal, no other evidence regarding the process was evident of satisfying a fair and/or reasonable consultation and dismissal process.

• [26] Mr Fleet gave evidence that he had only just been informed that long term and regular casuals also had protections and he was wrong to assume casuals could be dismissed without reason or due process.

• [27] On the evidence of Mr Fleet and Mr Graves, one may reasonably conclude that the dismissal lacked any process or forewarning that should come with the decision to import finished polished product which would result in the jobs of 3 polishers becoming redundant. The Respondent decided to keep one polisher and when the remaining polisher resigned, it transferred an employee from another department to fulfil the job requirements of one steel polisher. Mr Fleet gave evidence that given its size, redeployment to another area of the business was possible, but the decision was made to dismiss Mr Graves because of alleged concerns over behaviour and performance, even though no formal warning process took place nor has there been any warnings during Mr Graves seven years of employment.

• [28] It is probable that Mr Graves has a meritorious case, however, all of the factors of s.394(3) are relevant considerations in an extension of time application.

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

• [29] Neither party addressed this issue, therefore it is a neutral factor.

• [30] Having considered the submissions and material provided by the parties, I have taken them into account in my assessment of whether I can be satisfied of exceptional circumstances to justify an extension of time. Of the relevant considerations in s.394(3) only merit reckons in favour of an extension. Despite the potential merit of the case, this must be weighed against the balance of the considerations. On the evidence, albeit not fully assessed, an apparent absence of fairness by the Respondent ought ordinarily to hold weight in favour of an extension, but in this matter the evident inaction by Mr Graves to prosecute his application and his reasons for the delay are considerable. The balance of the factors required to be considered are either neutral or add no further weight to favour an extension.

• [31] I am not satisfied on balance that there are exceptional circumstances in favour of an extension, accordingly, the application for an unfair dismissal remedy is dismissed.

• [32] An order[7] to that effect will be issued with this decision.

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

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

[5] Respondent's Statement of Evidence of Mr Kym Fleet, Digital Hearing Book ('DHB'), pg. 52-53, [4].

[6] Email from Kym Fleet dated 10 January 2024 at 9.11am, DHB, pg. 59.

[7] PR775628

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