Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal; application made outside of time prescribed; whether there are exceptional circumstances; whether discretion to extend should be exercised; extension of time granted.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 18 December 2015. Mr James Morphett (Applicant) commenced employment with Pearcedale Egg Farm (Respondent) on or about 24 June 2014. He was employed to undertake general maintenance duties with the Respondent. Following discussions with the parties it is apparent that although the letter of termination issued to the Applicant was dated 19 October 2015, that the termination of employment did not take effect until 20 October 2015 and on that day the Applicant was advised by text message that his employment had been terminated.

[2] The Applicant subsequently received the letter of termination, which as I have indicated is dated 19 October 2015. The reasons that have been given by the Respondent for its decision to terminate the Applicant's employment concern an incident which occurred on or about 12 October 2015, during which it is said the Applicant made threats of violence towards Mr Monnier, the Respondent's General Manager.

[3] It is said that after obtaining legal advice the Respondent decided to terminate the Applicant's employment for serious misconduct arising from his conduct during the meeting on 12 October 2015. The Applicant lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act) on 11 November 2015. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

[4] Based on the termination date being 20 October 2015, the application should have been lodged by no later than 10 November 2015. The application was therefore lodged outside the time prescribed and it was effectively made one day after the last day on which it should have been made. The Act allows the Fair Work Commission (Commission) to consider extending the period within which applications for an unfair dismissal remedy may be made, but only if first satisfied that there are exceptional circumstances.

[5] Before I deal with the evidentiary matters as contained in the documents that have been filed by the parties, I just need to say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend the time. As is evident of the text of s.394 of the Act, the statute allows me to allow a further period in which an application may be made but that discretion will only be exercise if I am first satisfied that there are exceptional circumstances which warrant the exercise of my discretion.

[6] Subsection (3) of s.394 of the Act sets out the matters which must be taken into account in assessing whether or not there are exceptional circumstances, and these are:

• whether the Applicant first became aware of the dismissal the day it took effect;

• any action taken by the Applicant to dispute the dismissal;

• any prejudice that the Respondent may suffer, including any prejudice caused by the delay; and

• fairness as between the Applicant and other persons in a similar position.

[7] It is clear from the structure of s.394(3) that each of these matters need to be taken into account in assessing whether or not there are exceptional circumstances. Individual matters might not, when viewed in isolation, be particularly significant, so it is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.

[8] 'Exceptional circumstances' are not defined in the Act, however, 'exceptional circumstances' are circumstances that are out of the ordinary course, unusual, special or uncommon. But the circumstances do not need to be unique or unprecedented. Nor do they need to be very rare. I will turn now to deal with the statutory considerations, beginning with the reason for the delay.

[9] When considering the explanation for the delay or the reason for the delay, the explanation needs to be a credible or acceptable explanation, and it needs to be an acceptable explanation for the whole of the period of the delay. In this case, it is clear on the evidence that the Applicant endeavoured to lodge an application through the e-filing mechanism on 6 November 2015. On that day, the Applicant filed an email to which was attached the letter of termination.

[10] It is apparent from the materials that the Applicant completed an unfair dismissal application, and that he had signed that Application on 6 November 2015. He received from the Commission, a document which acknowledged that certain documents had been dispatched to the Commission but as is clear from the email to the Applicant from the Commission on 6 November 2015, that document was not an acknowledgment that the documents that he was attempting to file were accepted as filed in the Commission.

[11] The document tells the Applicant that the materials he endeavoured to file would be reviewed for compliance with the rules, and that he would be advised as soon as possible whether his application had been filed or whether there was some anomaly in the materials that were filed. As things transpired, on 6 November 2015 the Applicant only successfully filed the letter of termination that he had received from the Respondent.

[12] On or about 9 November 2015, the Applicant received a telephone call from a staff member within the Commission Registry, during which he was told that he had been unsuccessful in filing his application using the e-filing mechanism and that he would need to re-file in order to successfully make an application. It is apparent that the Applicant was not told on 9 November 2015 that he could lodge his application by telephone.

[13] Telephone lodgement is a mechanism that is provided for under the rules of the Commission. The Applicant's uncontested assertion is that he could not lodge his application electronically from home because his scanner was not working and he was unable to arrange to attend a friend's premises to use that person's equipment until 11 November 2015. On 11 November 2015, the Applicant successfully lodged his application and it is recorded as having been lodged at 1.17pm on 11 November 2015.

[14] Applicant's bear the responsibility of lodging applications correctly and within time. And, in normal circumstances there is no particular obligation on the Commission to provide advice to applicants about lodging their applications. However, it seems to me that it will have been apparent that from the letter of termination that had been received by the Commission on the 6th, that when a Registry staff member had a conversation with the Applicant on 9 November 2015, the Applicant was either then out of time or just within the timeframe for lodging an application.

[15] It would in those circumstances, have been prudent to have advised the Applicant that he could have then and there made an application by telephone. Had that occurred, the current proceeding would be unnecessary. As things transpired and for the reasons given by the Applicant, he was unable to lodge his application until 11 November 2015. I am satisfied that had the Applicant lodged his application through the post it would not have been received any earlier than 11 November 2015 once he became aware that his first attempt at lodging the application was unsuccessful.

[16] In those circumstances, I am satisfied that there is an acceptable explanation for the delay and in those circumstances that is a matter that weighs in favour of the Applicant in this case.

[17] As to the question of whether the Applicant became aware of his dismissal after the date it took effect, given that it is now common ground that the Applicant was dismissed with effect on 20 October 2015, and that he was advised of his dismissal on that day, then it is clear that the Applicant had been notified of his dismissal on the day that it took effect, and that he, therefore, had the full benefit of the 21 day time period within which to lodge his application.

[18] I note and accept that the Applicant sought legal advice but that is not an unusual occurrence in this jurisdiction. It is incumbent on the Applicant to take steps at the earliest possible opportunity if he or she wishes to pursue their rights. In the circumstances, that the Applicant received notice of his termination on the day it took effect, I consider that is a factor that weighs against the Applicant.

[19] Turning then to the question of any steps that the Applicant took to dispute his dismissal, the Applicant says that apart from lodging the unfair dismissal application, he endeavoured to contact the employer after the date of termination to discuss his dismissal but was told that he should communicate with the Respondent's lawyers. I am satisfied that he at least took some step to dispute his dismissal other than by making this application, and in those circumstances that is a matter that weighs slightly in favour of the Applicant in this case.

[20] As to the question of prejudice, the mere absence of prejudice is not necessarily a factor that weighs in favour of the grant of an application for an extension of time. In this case, Mr Monnier for the Respondent indicated that the employer would not suffer any prejudice, and I think that that is a proper concession to make given the application was lodged only one day outside of the time prescribed.

[21] The persons who will be critical to establishing the circumstances of the incident which led to the dismissal of the Applicant are and will be available to give evidence should the matter proceed to hearing. In these circumstances, the absence of prejudice is a neutral factor in my evaluation.

[22] As to the merits of the case, the allegation of misconduct, as I have indicated earlier, concerns an incident that occurred on or about 12 October 2015.

[23] It is alleged that the Applicant made threats of physical violence towards Mr Monnier. Mr Monnier said he will give evidence about that altercation and what occurred, and also stated that there was another witness who was present during the altercation. The Applicant says that he recorded the meeting on his telephone.

[24] The question whether the recording, which apparently was made without consent may be admitted in evidence, is a matter that will need to be resolved at some later stage. It should not be assumed by the Applicant that the recording will necessarily be admitted into evidence given that it may have been obtained in contravention of the Surveillance Devices Act 1999 (Victoria). But on the assumption that it is admitted into evidence, the parties can deal with the veracity of the recording of the conversation and a decision maker will ultimately have to make a judgment about the weight that is attached to that telephone recording.

[25] In further evaluating this matter consideration will need to be given to whether the employer complied with the Small Business Fair Dismissal Code. That is a further jurisdictional matter that will need to be resolved at another stage, but simply stated, if the employer believed on reasonable grounds that it was justified in dismissing the Applicant summarily, then it will have complied with the Small Business Fair Dismissal Code even if the conduct itself did not occur precisely in the manner as is alleged currently by the Respondent.

[26] Ultimately, in applications of this kind it is not practical for me to test the evidence as it would be tested in a full hearing. And so the evaluation that I can make is only a very preliminary one, and I generally take the view that I should look at the Applicant's case at its highest, and determine whether or not there is at least a case that is not without merit.

[27] Given the disputed accounts of what occurred, it seems to me that the question of whether the dismissal complied with the Small Business Fair Dismissal Code, and if it did not, whether or not the dismissal was harsh, unjust or unreasonable, really turns on what happened at the meeting on 12 October 2015. And, I am satisfied on the material before me that there is at least an arguable case that the Applicant has to advance.

[28] Therefore, on the question of merit, I am satisfied that the Applicant's claim is not without merit, and in those circumstances the merits of the case weigh slightly in favour of the Applicant. Neither party should take from what I have said that the Applicant will succeed or that I believe that ultimately there will be a finding in his favour. It is simply a very preliminary judgment based on the limited material that I have before me.

[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.

[30] Neither party highlighted any particular matter which would be relevant nor am I aware of any particular matter currently before the Commission, or cases decided previously by the Commission which might have a bearing on this consideration. I therefore consider that this consideration is a neutral one in this case.

[31] Statutory time limits that apply to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the parliament's intention that rights to dispute a dismissal should be exercised promptly. Time limits seek to balance two competing interests. On the one hand, the right to bring an action; on the other, an employer's right to be certain that once a particular time period has passed, that actions that they have previously taken will not be subject to dispute.

[32] It is for this reason that the parliament has determined that 21 days is the appropriate time limit within which applications of this kind should be brought. However, the parliament also recognises that there might, in particular circumstances be exceptional circumstances which would warrant the consideration of the exercise of a discretion to extend the time period.

[33] So, in summary, a person who wants relief from an unfair dismissal, needs to act promptly, but there will be occasion where a delay will nonetheless not be fatal if in all of the circumstances, the circumstances for the delay, and having regard to the merits of the application, there are exceptional circumstances. Taking all the matters into account I am satisfied on balance that there are exceptional circumstances in this case.

[34] I am particularly influenced by the reason for the delay and the Applicant's clear attempts to lodge his application within time, and his unfortunate failure to do so. It was also unfortunate that the weekend intervened between the 6th and the 9th of November 2015, the absence of which might have also precipitated a more prompt lodgement of the application. It is unfortunate also in this case that given that the Applicant was so close to the time expiring that he was not advised by the Registry staff that he could make an application by telephone.

[35] The other matters either weigh slightly in favour of the Applicant or are neutral, save that the question of when he was notified of his dismissal weighs against him. I am not aware of any other discretionary consideration which would weigh against the exercise of my discretion to extend the time, so I propose to allow the Applicant an extension so that the period within which Mr Morphett can make his application is extended to 11 November 2015. Consequently, a valid application has been made.

[36] An order giving effect to this decision has been issued separately in PR575247.

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