Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

• [1] Mr Dwayne Yates, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Dahlsens Building Centres Pty Ltd, whom I will refer to as the Respondent.

• [2] Before granting a remedy, the Commission must be satisfied that the application was not made out of time.

• [3] Having heard the parties, I now proceed to give these reasons for my decision ex tempore.

• [4] This published decision reflects the decision I gave ex tempore on 16 February 2022 with corrections for grammatical, syntactical and any other insignificant errors.

• [5] An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

• [6] The parties agree, and I so find, that the dismissal took effect on 24 December 2021 and the application was made on 20 January 2022, some 27 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.

• [7] The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:

(b) whether the Applicant first became aware of the dismissal after it had taken effect;

(c) any action taken by the Applicant to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the Applicant and other persons in a similar position.

• [8] As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.

• [9] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 15 January 2021. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 20 January 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.

• [10] As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.

• [11] As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.

• [12] The Applicant acknowledged in his Form F2 Application that his application was not made within 21 days of the dismissal taking effect. The Applicant submitted that the delay was for the following reasons:

• His uncertainty as to public holiday requirements;

• Wanting to spend Christmas time with his daughters; and

• • Waiting for Centrelink to re-open and ignorance as to the 21-day deadline.[1]

• [13] In response to directions issued by Chambers on 21 January 2022, the Applicant provided the following further reasons:

• Only finding out about the statutory time limit after the period had expired.

• When he emailed his form, it was 3 days late, but the email did not send.

• When he did not receive a phone call from the Commission he searched for the email and found it in the drafts folder. He then sent the application to the Commission and acknowledges the application was 6 days out of time.

• [14] At the Hearing, the Applicant confirmed the above reasons for the delay.

• [15] In relation to the reason for the delay, the Respondent submitted that[2]:

• That the above events do not constitute exceptional circumstances that warrant granting an extension of time.

• [16] Having considered that evidence, I find that the reasons for the delay were the Applicant's lack of familiarity with the process involved in the making of an Unfair Dismissal application, ignorance of the statutory time limit, the timing of the dismissal during the December holiday period and his shock at being dismissed. I note that the Applicant contends that he attempted to lodge his application on Monday 17 January 2022 but the email application failed to send. The Applicant concedes that at this point, the application was already 3 days out of time.

Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect

• [17] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on 21 December 2021 and that the effective date of dismissal was 24 December 2021. The Applicant therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal

• [18] It is not in dispute, and I so find, that the Applicant did not take any actions to dispute his dismissal prior to making the application on 20 January 2022.

I must now consider the prejudice to the employer (including prejudice caused by the delay)

• [19] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

I will now turn to the merits of the application

• [20] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

• [21] In essence, the Respondent contends that the Applicant was on notice from October 2021 that he was required to comply with the Victorian Government's COVID-19 vaccination requirements for authorised workers by 26 November 2021[3] and on 10 December 2021, the Applicant was informed that failure to provide proof of vaccination or additional information by close of business 24 December 2021 would result in the termination of his employment effective that day.[4] The Applicant disputes the Respondent's submission and in oral evidence states that the dates set by the Respondent kept changing and that the Respondent should have allowed him to work from home.

• [22] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, it is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter" in an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.

• [23] In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

• [24] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position

• [25] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings

• [26] As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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. 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.

• [27] I have made findings at paragraph 16 as to the reasons advanced by the Applicant for failing to lodge his application within the 21-day statutory time limit.

• [28] I note that mere ignorance of the statutory time limit is not an exceptional circumstance. This is made clear in the Full Bench decisions in Nulty v Blue Star Group at [2011] FWAFB 975 and Miller v Allianz Insurance Australia at [2016] FWCFB 5472.

• [29] Statutory time limits that are applicable 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 should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.[5]

• [30] Having regard to all of the matters at subsection 3 of section 394 of the Fair Work Act, I am not satisfied that there are exceptional circumstances.

• [31] I further note that the Applicant filed submissions and materials in relation to the COVID-19 vaccination requirements, including an extract from the Nuremberg Code amongst other materials related to vaccine mandates. Giving my findings above at paragraphs 23 and 24 as to the merits of the application, I do not consider these materials relevant to my consideration as to whether an extension of time should be granted.

• [32] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed.

10:00am Wednesday 16 February 2022 via Microsoft Teams

[1] Applicant's Form F2, 20 January 2022, question 1.5

[2] Employer Response Form F3, 8 February 2022, question 2.2

[5] Lidia Li v Slim Form Australia Pty Ltd [2021] FWC 619, [20].

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