Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Extension of time (s 394(3)) - no exceptional circumstances - application dismissed

• [1] This decision concerns an application made by Mr Matthew Dakin for an extension of time within which to bring his unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Mr Dakin contended in his application that he was dismissed from his employment with Farmgate MSU Pty Ltd (respondent) with effect from 21 November 2021. In his written submissions he contended that the dismissal occurred on 3 December 2021. The respondent contends that Mr Dakin resigned. I will proceed on the basis that, assuming there was a dismissal, it occurred on 3 December 2021. Section 394(2) states that an unfair dismissal application must be made 'within 21 days after the dismissal took effect', or such further period as the Commission allows pursuant to s 394(3). The 21-day period ended on 24 December 2021. The application was lodged by email to the registry of the Commission on 20 May 2022, nearly five months out of time. In order for Mr Dakin's application to proceed, he requires an extension of time.

• [2] Section 394(3) states that the Commission may extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are 'exceptional circumstances'. I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, which I will now consider.

• [3] The Act does not indicate what kind of 'reason for the delay' (see s 394(3)(a)) might tell in favour of granting an extension of time, however decisions of the Commission have referred to an 'acceptable' or 'reasonable explanation'. Mr Dakin submitted that he could not reasonably have filed his application any earlier because he was intending to claim payment of outstanding entitlements and that he did not know what payments would be outstanding until he received his final payment from the respondent on 5 May 2022. Mr Dakin stated that he was seeking payment of five weeks' notice, payment for sick leave and payment of certain convertible notes. The respondent contends that there was no uncertainty about Mr Dakin's entitlements and that the delay in payment of entitlements was attributable to Mr Dakin seeking to resolve issues with the Australian Taxation Office.

• [4] I do not consider that Mr Dakin has provided an acceptable reason for the delay. An application under s 394 is one that contends that the applicant's dismissal was unfair. If the Commission concludes that a dismissal was unfair it may order reinstatement or compensation. The Commission has no power to order the payment of outstanding legal entitlements. Only a court has such power. There was no good reason for Mr Dakin to delay his application until such time as his final payments had been made. Mr Dakin's apparent unawareness of the legal framework is not an acceptable reason for delay. Information concerning unfair dismissal claims and lodgement requirements is available on the Commission's website. Mr Dakin could have learned about the requirements by consulting the website or contacting the registry of the Commission. The reasons for the delay weigh against an extension of time.

• [5] I consider the following matters to be neutral considerations. First, Mr Dakin says that he was told of his dismissal on the same day that it took effect, on 3 December 2021 (s 394(3)(b)). Secondly, Mr Dakin does not appear to have taken action to dispute his dismissal apart from filing his unfair dismissal application (s 394(3)(c)). Thirdly, there is no apparent prejudice to the employer associated with the application for an extension of time (s 394(3)(d)). To the extent that this could be considered a factor weighing in favour of an extension, I would afford it little weight. Fourthly, I do not consider that there are any matters that are relevant to the question of fairness as between Mr Dakin and other persons in a similar position (s 394(3)(f)).

• [6] The Commission is required to consider the merits of the application (s 394(3)(e)). Mr Dakin contends that he was dismissed for declining to provide evidence to the respondent that he was vaccinated against COVID-19 and for refusing to agree to changes to his contract which he believed were 'constitutionally unlawful'. He said that he believed it was unlawful for the respondent to request that he provide it with information about his vaccination status, and to require him to work from home when his contract stated that his usual place of employment was the company's premises.

• [7] The respondent objects to the application on a number of grounds. It contends that Mr Dakin has identified the wrong employer in his application and that his contract clearly indicates AgrigateHub Pty Ltd as his employing entity. At the hearing Mr Dakin acknowledged this but said that the two companies formed part of the same undertaking. The respondent further submits that Mr Dakin failed to serve the minimum employment period that is a precondition to bringing an unfair dismissal claim. It also contends that Mr Dakin resigned from his employment by sending the company a letter requiring it to 'cease and desist' from certain actions and requesting it not to contact him. The respondent submits that, even putting the jurisdictional objections to one side, the claim has no merit, because the company was covered by state public health orders that required employers in the Victorian meat industry to ensure that unvaccinated workers did not attend the workplace. As Mr Dakin had not provided proof of vaccination, the respondent could not lawfully permit him to attend its premises for work.

• [8] Mr Dakin's claim is not a strong one. The application names the wrong employer. But even if this were to be corrected, and the other jurisdictional objections were overcome, the merits of Mr Dakin's application remain weak. The respondent was prohibited by public health orders from allowing Mr Dakin to come to work unless he produced evidence of his vaccination status. He chose not to do so. The respondent endeavoured to identify alternative roles that Mr Dakin could perform remotely. But Mr Dakin wanted to come to work. In my view no compelling contentions of unfairness are raised in the application. The merits of the application weigh against an extension of time. But even if the merits of the case had been stronger, this would not have affected my overall assessment.

• [9] The Commission can only extend time if it is satisfied that there are exceptional circumstances. Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. Mr Dakin's unfair dismissal application is therefore dismissed.

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