[42] I am therefore unable to accept that the Applicant has provided an acceptable explanation for the period between the date which the Applicant received the further documents, which was 21 April 2017, and the date on which this application was made, which was 17 May 2017. The only explanation is that the Applicant was of the opinion that he needed to wait until Commissioner Matthews had made a decision. That opinion was formed without inquiry and was baseless.

[43] The Applicant's failure to take any step to seek advice after becoming aware and armed with supporting documents that there was likely a problem also weighs against a conclusion that there is an acceptable explanation for the delay following 21 April 2017. Therefore, I do not consider that the Applicant has an acceptable explanation for the whole of the delay. In the circumstance, this consideration weighs against the Applicant.

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

[44] The Applicant was aware of the ending of the employment on the day it took effect. He had 21 days to lodge his application. This would normally weigh against the Applicant because the Applicant had the benefit of the full 21 day period within which to lodge the application. However, in the circumstances of this case, given the Applicant lodged in the WAIRC, albeit erroneously, the following day, and given all that followed, I consider this factor to be neutral.

Action taken by the Applicant to dispute his dismissal

[45] It is clear that the Applicant took immediate action to contest his "forced resignation" albeit in the wrong jurisdiction. Moreover, in the course of the WAIRC proceeding, it was clear that the Applicant was disputing his dismissal.

[46] In the circumstances, this is a matter that weighs in favour of the Applicant.

[47] Turning to the question of prejudice, the mere absence of prejudice is not a factor which immediately weighs in favour of an Applicant who seeks a further period within which to lodge an application for an unfair dismissal remedy.

[48] The Respondent says that it would not be in the position that it is today but for the delay. It says that this matter could have been dealt with six months prior if the Applicant had taken the necessary steps to make sure he was pursuing the correct application.[50]

[49] The Respondent's position is that if the application is granted the company will suffer significant prejudice because it has dealt with this matter in the wrong jurisdiction already and despite putting the Applicant on notice, he persisted in that application instead of filing his application in the Commission. The Respondent submits that it is a small business with no dedicated human resource department[51] and there would be significant prejudice if the Applicant were now allowed to pursue his claim in the Commission when he could have done so at a much earlier stage. The Respondent says that to date, the Respondent has been required to expend substantial time and money in order to defend the claim filed in the WAIRC which did not have any prospects of success.[52]

[50] The Respondent's position is not without merit. The Applicant's failure to seek advice at any stage contributes to the delay and meant that the Respondent was forced to prosecute its jurisdictional objection in the WAIRC to finality. All this could have been avoided by some measure of diligence on the Applicant's part at least since 21 April 2017.

[51] In the circumstances, this consideration weighs against the Applicant.

[52] As to the merits of the application, a hearing to consider whether time should be extended is essentially an interlocutory hearing, which does not generally permit a substantive review of the merits of the particular application. Indeed as s.396 of the Act make clear, the question whether an application was made within the period required in ss.394(2) (which includes whether a further period is to be allowed) is a matter that must be decided before considering the substantive merits of the application. In most cases the best that can be done is to take the Applicant's case at its highest and assess the merits from that perspective. That is, to look at the Applicant's case in the most favourable light and make an assessment about the merits.

[53] On the Applicant's case, the Applicant was forced to resign for a number of reasons including that Mr McDonald allegedly "harassed" and "bullied" the Applicant "until he had no other option then [sic] to resign".[53] The Applicant filed a medical certificate which declared him unfit for work for the period of 15 November 2016 to 22 November 2016 inclusive and the Applicant alleges that he was given a medical certificate for a period of four days on 5 December 2016.

[54] The Applicant also says that he was not paid correctly and was forced to accept part-time hours without his consent. The Applicant's evidence is that the above factors combined seriously impacted his family structure and forced him to resign.[54]

[55] The Respondent denies that it altered the Applicant's employment to part-time and submits that the Applicant's employment status remained at full time.[55] The Respondent says that in late November 2016, the Applicant received a written warning for leaving work earlier than his rostered finish time without any authorisation or notice. Further, the Respondent submits that no dismissal took place within the meaning of s.386 of the Act on the basis that the Applicant resigned from his employment on his own volition.[56]

[56] On the face of the materials, there seems to be some dispute as to whether there was to be an alteration of hours, which had the effect of altering the Applicant's status from full-time to part-time.

[57] As indicated above, Mr Taylor gave evidence that the written notice given to the Applicant by Mr McDonald contained an error[57] however Mr McDonald did not attend the hearing and so as things presently stand on the material before me the Applicant's case is not without some merit, not least because such an alteration, without agreement, would be in breach of the Meat Industry Award 2010 (Award).

[58] However, if the Respondent is able at a hearing to establish that the email, to which earlier reference is made, was sent and received by the Applicant, then the Applicant is likely to have difficulty in establishing there was a dismissal since a variation to rostered hours is permissible under the Award with notice and consultation. It seems to me therefore, the merits consideration is a neutral factor.

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

[59] As to fairness 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 in part with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission.

[60] The Respondent submits that the Applicant would be significantly advantaged in relation to other persons in a similar position because the Applicant would, in essence, be granted an extension for reasons which are not outside the ordinary course, and therefore, not exceptional circumstances.[58]

[61] No other submissions were made on this issue, neither party brought to my attention any other relevant decision or matter before the Commission.

[62] During the proceeding, I referred the parties to two decisions which were factually similar to the present case. I referred the parties to the decision of Deputy President Gooley in Peter Matthiessen v Pilbara Ports Authority[59] wherein the Deputy President observed that once the applicant "was alerted to the objection" he should have sought advice. In that case, the applicant had wrongly lodged an application in the WAIRC on 16 December 2015. On 15 January 2016 the respondent served its response and put the applicant on notice that it was a national system employer and that the WAIRC did not have the jurisdiction to hear the matter. The applicant lodged his application in the Commission on 3 February 2016 after the conciliation. The Deputy President observed that the applicant was not entitled to simply do nothing and await the outcome of the conciliation before lodging his application in the FWC".[60] On that basis the Deputy President concluded that there was no reasonable explanation for the delay and there were no exceptional circumstances and dismissed the application. In Matthew Palmer v RCR Engineering Pty Ltd[61] the applicant lodged his application in the wrong jurisdiction. That application was lodged in the WAIRC shortly after the termination of the applicant's employment. After lodging that application, the applicant sought legal advice however, the issue of jurisdiction was overlooked. Deputy President McCarthy observed that the applicant had a reasonable explanation for the delay as the respondent lodged an objection to the WAIRC application on jurisdictional grounds, but not until 20 days after the application was lodged. The Deputy President observed that the applicant "took steps, including attempting to get further advice which resulted in a delay of a couple of days, to lodge an application in Fair Work Australia."[62] He further observed that "had it been lodged more expeditiously the applicant most likely would have lodged an application with FWA within the time allowed."[63] On that basis, the Deputy President concluded that there was an acceptable explanation for the delay and, taking into account the other matters, he granted an extension of time.

[63] It seems therefore that a significant factor in cases of this kind is the steps that an applicant took to seek advice after becoming aware that there was a jurisdictional problem with his or her state industrial law application. The Applicant took no step to seek advice to ensure that he was pursuing the claim in the correct jurisdiction.[64]

[64] In the circumstances, I consider this factor weighs against the Applicant.

[65] The statutory time limit that is applicable to the exercise of a person's right, to bring an unfair dismissal remedy application is an expression of the parliament's intention that rights should be exercised promptly. That is because it is important that there is some certainty, particularly in relation to an employer who has taken a particular step, that they know that after the expiration of 21 days, in the case of a termination, that that will be the end of the matter. Time limits seek to balance the right to bring an action by an aggrieved former employee and the desirability of prompt action and prompt resolution of disputes.

[66] It is for that reason, the parliament has chosen to establish a time period and that time period is 21 days. However, the parliament also recognises that there will be some cases where a late application should be accepted and it has set out the test of exceptional circumstances and the matters that need to be taken into account.

[67] A person who seeks relief from an unfair dismissal must make the 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 account 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.

[68] There is no satisfactory or acceptable explanation for the whole period of the delay for the reasons already given. Although the Applicant immediately disputed the termination, the merits of the case consideration is neutral, prejudice weighs against the Applicant as does the fairness factor.

[69] As I have indicated, when I consider all the evidence in this case and the matters that I need to take into account individually and collectively, I am not satisfied that exceptional circumstances exist.

[70] As a consequence, I do not need to consider whether I should exercise my discretion. The application to allow a further period within which the Applicant's application should be lodged is refused.

[71] Before concluding, I would observe that in the WAIRC proceeding, the Commissioner made the following observation:

1. The error Mr King made in naming Mr McDonald and Mr Taylor as his employers is easy enough to understand. He dealt with these persons in relation to his employment. He never received a written contract of employment. The documentation he received in relation to his employment (such as his Payment Summaries provided for taxation purposes) nominated "The Beef Shop" as the payer of his wages. He had no idea that a company had been created, seemingly for the purchase of the business, and that that company operated the business, and employed him, in its role as the trustee for a unit trust established and known as the Three Blind Mice Unit Trust pursuant to a resolution of the company directors.
2. If Mr King's excusable misunderstanding has caused delay in him bringing his claim in the correct forum then to the extent delay is relevant it seems to me, for what it is worth, that the delay is equally excusable.

With all due respect to the Commissioner, the observation was made without properly considering the matters relevant to my determination and moreover the matters about which the Commissioner observes the Applicant had "no idea", should have been clear to him by, at the latest, 21 April 2017.

[72] The application is dismissed. An order giving effect to this decision is separately issued in PR595071.

[4] 2017 WAIRC 00272.

[8] F3 Employer Response at q3.2 at [5], Transcript PN58 - PN74.

[12] Applicant's Outline of Submissions dated 26 June 2017, page 5 at q.1i.

[23] Applicant's F2 - Unfair Dismissal Application dated 17 May 2017 at q.3.2.

[24] Respondent's Outline of Submissions dated 4 July 2017 at [20].

[25] Form 2 - Notice of claim of harsh, oppressive or unfair dismissal.

[26] Respondent's Outline of Submissions dated 4 July 2017 at [21] and R-3.

[29] Respondent's Outline of Submissions dated 4 July 2017 at R-3.

[31] Respondent's Outline of Submissions dated 4 July 2017 at [22].

[32] Applicant's Outline of Submissions dated 26 June 2017, page 4 at q.1i.

[36] Email dated 13 April 2017 from Commissioner Matthew's associate requesting Respondent to file certain documents.

[40] 2017 WAIRC 00272.

[41] See Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[51] Respondent's Outline of Submissions dated 4 July 2017 at [64].

[53] Applicant's F2 - Unfair Dismissal Application dated 17 May 2017 at q.3.1 and q.3.2.

[55] Respondent's Outline of Submissions dated 4 July 2017 at [80].

[58] Respondent's Outline of Submissions dated 4 July 2017 at [89].

[59] [2016] FWC 1532.

[61] [2009] FWA 1431.

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