s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - application dismissed

• [1] This is an edited version of my decision delivered ex tempore and recorded in transcript on 17 April 2025. I refused to grant an extension of time and issued an order[1] to that effect separately.

• [2] Mr Malcolm Clark (the Applicant) commenced employment with Altus Traffic (the Respondent) on or about February 2017 and he was employed as a traffic controller. The reason given by the Respondent for the decision to terminate the Applicant's employment was for serious misconduct - that being intimidating and offensive behaviour directed at a particular employee - after having received a final warning for similar behaviour in 2024.

Application was filed outside the statutory timeframe

• [3] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) and that application was lodged on 25 March 2024. The application was filed outside the statutory time frame. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. The Applicant's employment was terminated by the Respondent with effect from 3 March 2025 and that is not in dispute.

• [4] Based on the termination date taking effect on 3 March 2025, the application for a remedy should have been lodged no later than 24 March 2025. The application was, therefore, lodged outside of the time prescribed. The application was made, in effect, one day after the last date on which it could have been made. The Act allows the Commission to consider extending a period within which an application for an unfair dismissal remedy may be made if it is satisfied there are exceptional circumstances.

• [5] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. That is, evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

• [6] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are the reason for the delay; whether the Applicant first became aware of the dismissal after the date it took effect; any action taken by the Applicant to dispute the dismissal; prejudice to the Respondent, including prejudice caused by the delay; the merits of the application; and fairness as between the Applicant and other persons in a similar position.

• [7] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

• [8] Briefly, '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 or unprecedented, nor do they need to be very rare. I must be satisfied that taking into account section 394(3), there are exceptional circumstances. I will now consider these matters in the context of the application.

• [9] Firstly, in terms of the reason for the delay, 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 the circumstances must be considered.

• [10] In this matter, at an earlier mention hearing to deal with the non-compliance of the Applicant with the first set of directions, the Applicant's partner, Ms Grant who has been assisting the Applicant, said that they thought that they had actually lodged in time and that they misunderstood the time frame required. Mr Clark has confirmed today that this is essentially why the application was lodged late. I have considered that submission, but do not consider it an acceptable reason for the delay. Generally, a lack of knowledge about the requirement to lodge in the 21‑day period is not an acceptable reason for a delay.

• [11] There were materials lodged yesterday which spoke about a personal and legal issue which the Applicant does not wish to discuss in an open forum. I sought some clarification today as to whether that was connected to the reason for the delay, but the Applicant has clarified that that was the basis for his non-compliance and/or non-attendance at the first proceedings to try and advance this matter. It is not related to the reason for the delay in filing the initial application.

• [12] I accept that the Applicant may well be dealing with a personal legal matter, but there was no reason advanced in connection to that as to how that impacted on the delay in lodging the initial application. I am satisfied that the actual reason for the delay was the one that was put, I think succinctly and honestly, at the non-compliance hearing and confirmed today. The Applicant thought that the application was made in time, but that's not so.

• [13] That is consistent with the answer to the question at 1.4 of the F2, that they understood it was being lodged in time, but, as I say, that is not an acceptable reason for delay. In the circumstances, I am not satisfied that the applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the applicant in this case.

Whether the Applicant became aware of the dismissal after the date it took effect

• [14] Turning to whether the Applicant first became aware of the dismissal after the date that it took effect, the evidence is that the Applicant was advised on 3 March 2025 that his employment would end on that date. There is no contest about that. The Applicant had the full benefit of the 21‑day period to lodge his application. In the circumstances that is a matter that weighs slightly against the Applicant.

Action taken by the Applicant to dispute his dismissal

• [15] In terms of action taken by the Applicant to dispute his dismissal, the Applicant indicated in his written materials yesterday that he had contacted his union. He provided some further information about that today. In essence, as I recall, on the same date he was dismissed his union representative essentially advised him that it was too difficult a process, or words to that effect, to bother with making an application to contest the dismissal.

• [16] Subsequent to that meeting, the Applicant has given evidence that he tried to get in touch with the union, but that he did not get any reply from them. In the circumstances, there is certainly no evidence the union were asked to do anything, and the evidence is the union indicated that they did not think he should take any action to dispute the dismissal by way of unfair dismissal. That is a matter for them, but ultimately in respect of this factor I am satisfied that that is action that the applicant took to dispute the dismissal. That is, by way of contacting his union or attempting to, although he did not progress the matter any further. It is not a significant factor, but it is a factor that weighs slightly in favour of the Applicant.

• [17] In terms of prejudice, the Respondent has made no submission about that. The Applicant submits there is no prejudice. I am satisfied that there is no prejudice or likely no prejudice for a one‑day delay. That is a neutral consideration in all the circumstances.

• [18] In terms of the merits of the application, in cases such as this where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant's case at its most favourable.

• [19] Having done that, the circumstances are that the Applicant has been given a final warning for the way he spoke to other employees in 2024. The Applicant today, and via his short witness statement that he filed yesterday, has indicated he disputes those allegations; that it was someone else on the radio, or words to that effect. He was terminated for allegedly engaging in the same or similar behaviour - that is, speaking to someone inappropriately, swearing at them - and according to the Respondent he accepted that he spoke that way, but said that he would try to improve.

• [20] The Applicant indicated in his evidence today words to the effect that the other person was speaking to him in an unfavourable manner. Essentially, the Applicant's position that he took today was that he does not consider that he engaged in that conduct or, as I say, alternatively, that he was responding to being spoken to in an inappropriate manner. There are factors that will favour the Applicant, such as his length of service which is of a reasonable length of time. It is not an inordinately long time, but in terms of the factors that do not favour him, it appears that it has been a reasonable procedure to effect the dismissal.

• [21] To the extent that there are contested facts, especially as to conduct - which are not going to be resolved today - the situation is that taking into account all the factors, it seems to me that the Applicant's claim is not without merit. That is not to suggest it is going to succeed, because it will turn on witness evidence particularly about his conduct, but there is at least some merit in the case.

• [22] In all the circumstances though, particularly given what would appear to be a vigorous contest in terms of the evidence that would be led about whether he engaged in the conduct or not, taking into account all the circumstances, I consider the assessment of the merits to be a neutral factor. That is, it neither favours nor is against the Applicant.

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

• [23] In terms of fairness as between the Applicant and the 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 the application and consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position. That may relate to matters currently before the Commission or matters previously decided by the Commission. It may also relate to the position of various employees and the employer responding to an unfair dismissal application.

• [24] On this matter, the Applicant has indicated that he felt he was unfairly targeted. Really that goes to the merits of the matter, as to whether he was unfairly targeted for the dismissal. It does not particularly assist in this consideration and so my conclusion on that is that neither party has brought to my attention any relevant matter concerning this consideration. I am unaware of any relevant matter and, therefore, I consider that to be a neutral consideration.

• [25] Turning to the conclusion, 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 can 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 was 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 the action will be exercised promptly, otherwise, other than in exceptional circumstances, the right to bring the action will be lost.

• [26] A person who seeks relief from an unfair dismissal must make an application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period.

• [27] As I set out earlier, in terms of the various factors under reason for delay, when the Applicant became aware of the dismissal, are factors that weigh against the Applicant. The action taken to dispute the dismissal, which really involved some emails being sent to the union, but nevertheless I accept that that is action taken to dispute, that weighs slightly in favour of the Applicant and all the other factors are neutral.

• [28] In the circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and, therefore, there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. The extension of time is, therefore, refused, and the application for unfair dismissal remedy made by the Applicant is dismissed. An order[2] to that effect will separately be issued.

[1] PR786215.

[2] PR786215.

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