s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances exceptional - extension of time for filing allowed

• [1] Mr John Wassens (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Fair Work Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Murrells Freight Services Pty Ltd (the Respondent).

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

• [3] Subsection 394(2) of the Fair Work Act provides that such an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

• [4] Under subsection 394(3) of the Fair Work Act, the Commission may 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:

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

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

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

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

• [5] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [6] The Respondent has objected to the application on the grounds that, inter alia, the application is out of time.

• [7] There being contested facts involved, the Commission is required to conduct a determinative conference or hold a hearing.

• [8] The Applicant and the Respondent did not express views about the question of whether the matter should proceed by determinative conference or hearing. I considered whether a hearing would be the most effective and efficient way to resolve the matter. I considered it appropriate to hold a determinative conference. The determinative conference was held on 29 January 2025.

• [9] Mr Wassens appeared for himself and gave evidence. Mr Rene Vescio appeared for the Respondent and gave evidence for it.

• [10] The parties provided information and documentary evidence by email to the Commission in advance of the determinative conference. They had the opportunity to tender documents, provide sworn evidence, and make submissions at the determinative conference.

• [11] I have carefully considered the evidence and the parties' arguments.

• [12] The parties were initially in dispute about when the employment came to an end. Mr Wassens' application stated the dismissal took effect on 25 September 2024. The Respondent said Mr Wassens resigned on 23 September 2024, and they "allowed him payment in lieu of his notice period." Mr Wassens' letter relevantly says:

I John Wassens Maintenance Co Ordinator for Murrells transport tender my resignation be it (2 weeks notice) as of todays date 23rd September 2024.

• [13] Though the language is ambiguous, the better reading, having regard to the reference to two weeks' notice, is that Mr Wassens' resignation would take effect two weeks later, on 7 October 2024.

• [14] Despite the content of the application and the letter of 23 September, Mr Wassens conceded, at the Determinative Conference, that the employment had come to an end the day that he provided his resignation letter, 23 September 2024. Accordingly, both parties' position was that the employment ended on that date.

• [15] The application was received by online lodgement at 12:24 am AEDT on 16 October 2024. As both the Applicant and the Respondent gave addresses in New South Wales I take AEDT as being the relevant time zone at the time. Accordingly, I find the application was made on 16 October 2024.

• [16] The application was due to be lodged by midnight on 14 October 2024. It was lodged slightly more than one day out of time.

• [17] Accordingly I will now consider whether to allow an additional period, of that duration, for the Applicant to file his application, having regard to the considerations set out in section 394(3) of the Fair Work Act.

• [18] I set out my consideration of each matter below.

• [19] 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.[2] 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.[3]

• [20] At the conference Mr Wassens gave evidence that:

(a) He had needed a shoulder reconstruction, for his right shoulder. He had been having problems with his right shoulder throughout his employment with the Respondent. From around July 2023 to September 2024 he had been seeing doctors every three weeks or so to get certificates of capacity in relation to the right arm. He says the reference to lifting requirements in his letter of 23 September 2024 had related to that issue with his right arm.

(b) Mr Wassens said that he had been overcompensating with his left arm, and had developed tendinitis and bursitis in his left arm as a consequence. This had developed while he was still working for the Respondent, and he had felt it coming on the week his employment came to an end. He said the pain had been so bad that it had caused him to cry while pulling a sheet over himself at night.

(c) He said that at some point after the pain developed in his left arm, he was admitted into Royal North Shore Hospital and had to have three injections into his left shoulder to try to get his left arm going, the first one in October and the other two in November/December. The three injections were spread out.

(d) He said he lived on his own. He just got the application in the best he could. He said the situation with both his arms was not easy to deal with, making it difficult to manage general duties around the house. He said he could not drive the car. A provider called icare was providing transport for him, and had been from around October last year.

(e) He also said he had procrastinated but he was entitled to six weeks' notice under his contract, and his partner had encouraged him to put in this claim to try to get the remaining four weeks' pay (in addition to the two weeks' pay already received).

(f) He said he was in distress when the employment ended but that after leaving Murrells that he was a lot better and he had been focussing on getting his health better.

• [21] Mr Wassens did not call any expert medical witnesses. The materials he had provided largely went to the merits of the unfair dismissal claim, not to the extension of time issue. There were, though, some medical documents. Mr Wassens tendered a certificate of capacity / certificate of fitness for use with workers compensation and CTP claims dated 2 October 2024, signed by Dr Malcom French, treating practitioner,[4] which relevantly stated:

review after specialist rv... left should aggravation/tendonitis due right shoulder

Referral to another health service or rehabilitation provider ...

Dr Petchell, (orthopaedic surgeon) for surgery recommended

tear found on MRI, referred back to Dr Petchell, who has recommended surgery

• [22] This certificate was dated after the employment came to an end but it is consistent with Mr Wassens' evidence that he had had trouble with his right shoulder for some time, and it had affected his left arm through overcompensation.

• [23] Mr Wassens also tendered a letter from Dr Petchell of 17 December 2024 that indicated the surgery had occurred four days before.[5] This is consistent with the above certificate of 2 October which indicated Mr Wassens was being referred to Dr Petchell for surgery.

• [24] In addition to the foregoing, I observe that Mr Wassens struck me as a forthright witness who appeared to still be recovering from his right shoulder reconstruction.

• [25] Having regard to the above, I find that the primary reason for the delay was Mr Wassens' physical incapacity, affecting both arms, at the time.

Did the Applicant first become aware of the dismissal after it had taken effect?

• [26] Given the circumstances set out above there was no issue of Mr Wassens becoming aware of the dismissal after it had taken effect.

What action was taken by the Applicant to dispute the dismissal?

• [27] There is no evidence before me of Mr Wassens taking any action to dispute the alleged dismissal prior to making the application on 16 October 2024.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [28] The Respondent did not seek to argue that it would suffer prejudice if time was extended. The delay was short and unlikely to give rise to any or any significant prejudice.

• [29] In addition to the objection on the grounds that the application was made out of time, the Respondent objects on the basis that Mr Wassens was not dismissed. As stated above Mr Wassens submitted a letter of resignation. The parties are not of the same mind as to whether this constituted a dismissal. It is possible for an apparent resignation to constitute a dismissal, having regard to section 386 of the Fair Work Act.

• [30] The competing contentions of the parties in relation to the merits of the application, and the question of whether Mr Wassens was dismissed, are set out in the filed materials.

• [31] Having examined these materials, it is evident to me that the merits of the application, and the question of whether it would survive the Respondent's objection that Mr Wassens was not dismissed, 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. 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 s.366(2)(d)"[6] and the same applies to s.394(3)(e).

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

• [33] In the circumstances, I find that it is not possible to make an assessment of the merits of the application, beyond observing that each party's case is arguable.

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

• [34] The parties did not address this point specifically. This is not a particularly unusual extension of time request and each request turns on its own facts. There is no issue of fairness, or lack of fairness, as between Mr Wassens and other persons in a similar position that weighs for or against a finding of exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [35] I am satisfied there were exceptional circumstances. In the course of Mr Wassens' life it was exceptional, not usual, to suffer significantly reduced mobility in both of his arms, the delay was short, and none of the other considerations weigh against a finding of exceptional circumstances.

• [36] Having regard to all of the matters in subsection 394(3) of the Fair Work Act, I am satisfied that there are exceptional circumstances.

• [37] Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

• [38] Having regard to those exceptional circumstances and the object stated at subsection 381(2) of the Fair Work Act to ensure that a "fair go all round" is afforded to the parties, the Commission is satisfied that it is appropriate to extend the period for the application to be made to 16 October 2024.

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

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

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

Printed by authority of the Commonwealth Government Printer