s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application out of time - extension of time refused

• [1] Mr Paul Robert Courtney worked as a Fitter for Berendsen Fluid Power Pty Ltd (Berendsen) for approximately 9 years. On 4 December 2024, there was an altercation between Mr Courtney and another employee of the business. On 10 December 2024, Mr Courtney was dismissed on the grounds of serious misconduct. Mr Courtney says the grounds for dismissal are false. He applied to the Commission for an unfair dismissal remedy on 31 January 2025.

• [2] Applications for an unfair dismissal remedy must usually be made within 21 days after the dismissal took effect. If there are exceptional circumstances, this timeframe can be extended by such further period as the Commission allows.[1] In Mr Courtney's case, the date of dismissal was 10 December 2024, and the dismissal took effect that day. Berendsen objects to the application because it was filed late. The 21‑day filing period ended on 31 December 2024 and the application was 31 days late.

• [3] The question is whether to allow an extension of time for Mr Courtney to apply for an unfair dismissal remedy. I have concluded that the answer must be 'No'. The application will instead be dismissed. My reasons are below.

• [4] Under section 394(2) of the Fair Work Act 2009 (Cth) (the Act), the Commission can allow an extension of time to apply for an unfair dismissal remedy if satisfied there are exceptional circumstances, taking into account:

a) the reason for the delay

b) whether the person first became aware of the dismissal after it had taken effect

c) any action taken by the person to dispute the dismissal

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

e) the merits of the application; and

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

• [5] The meaning of "exceptional circumstances" was considered and summarised in Nulty v Blue Star Group:[2]

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[3]

• [6] Reason for delay: The reasons for the delay in making his application are summarised below. Mr Courtney submits that his mental health was affected for the first two weeks after his dismissal because he kept thinking "how could this happen?". He did not know the process for dealing with unfair dismissal as he had never had to deal with anything like this before. He has limited computer skills and does not have a computer or printer at home although he has a mobile phone. He only had limited help from his brother.

• [7] On a date unknown (said to be in the week after dismissal), Mr Courtney called a lawyer. It is not clear if that was the firm Maurice Blackburn, but at some point, he submits that he called that firm and was told its first available appointment was 6 January 2025. Mr Courtney also called the Queensland Law Society and was referred to a list of relevant law firms. He managed to obtain initial advice from McNamara Law but could not reach agreement on fees. He did not take any action over the Christmas period as he did not want to ruin Christmas.

• [8] On 8 January 2025, Mr Courtney attended the doctor about an alleged injury to his teeth during the altercation at work on 4 December 2024. On 14 January 2025, he attended Inala Police Station to make a report about an alleged assault on 4 December 2024. On or about 14 January 2025 (the precise dates are unknown) Mr Courtney called the Fair Work Ombudsman, the Queensland Industrial Relations Commission and an entity responsible for managing portable long service leave about his options and entitlements. The Ombudsman was not available immediately but called him back about a week later and advised him to call the Commission. On 21 January 2025, Mr Courtney called the Commission and discussed making a late unfair dismissal application. Although he refers to a call to the Commission in the week before Christmas, there does not appear to be a record of his call on the Commission's file. Mr Courtney then gathered his documentation, prepared his application on 29 January 2025, and filed the application in the Commission by email on 31 January 2025.

• [9] Over this period, Mr Courtney submits that his health continued to decline. He attended his doctor on 6 February 2025 and was diagnosed with stress "leading to a current depressive episode". On 11 March 2025, he attended a psychologist. Mr Courtney submits that he had earlier seen the psychologist in February 2025.

• [10] On balance, the history of the matter weighs against additional time to make the application. Mr Courtney appears to have made some attempt to obtain legal advice in the weeks after dismissal but then decided to wait until after Christmas to pursue the matter. It is not clear whether he was initially seeking to dispute the dismissal or to pursue the alleged assault as a separate matter.

• [11] From 8 January 2025, Mr Courtney began taking reasonable steps to protect his position. On this day, he sought medical evidence in connection with the alleged assault before making a police report 6 days later about the incident on 4 December 2024. These steps commenced 8 days after the end of the 21‑day filing period for unfair dismissal claims and it then took more than 3 weeks to make the application to the Commission.

• [12] Allowing some latitude for Mr Courtney's age, and lack of access and skill in relation to computers and online systems, the delay is not adequately explained. The Commission can be contacted over the phone or in person at one of its registry counters. Mr Courtney spoke to registry staff over the phone but did not make an application at that time or promptly after the call. He was advised of the option to attend a Commission registry in person but chose not to do so because of the cost and difficulty with parking in the central business district. The submission does not acknowledge the alternative option of public transport. Limited knowledge of unfair dismissal law and procedure takes the matter no further both because it is not an exceptional circumstance and because Mr Courtney had received initial legal advice and had spoken to various regulatory agencies about his situation in the weeks prior to his claim.

• [13] Whether the person first became aware of the dismissal after it had taken effect: Mr Courtney became aware of the dismissal on the day it took effect. This is a neutral consideration.

• [14] Any action taken by the person to dispute the dismissal: The actions taken by Mr Courtney to dispute the dismissal are described above. There is no evidence that Berendsen was on notice of a dispute about the dismissal until he filed the application, and Mr Courtney took his time in working through the options available to him before acting to commence the dispute. On balance, these matters weigh marginally against a grant of additional time.

• [15] Prejudice to the employer (including prejudice caused by the delay): There is some limited prejudice to Berendsen if the application proceeds late because of the additional time and cost of a jurisdictional hearing. For the most part, the asserted prejudice is the same as would apply to Berendsen if the application had been made in time.

• [16] Merits of the application: The facts of the case are hotly disputed. The altercation on 4 December 2024 began as a dispute about the Israeli/Palestinian conflict and ended with both participants trading racial barbs. Mr Courtney submits that he was the victim of assault by the other employee who was the aggressor in the situation and who was not dismissed. Three witnesses to the altercation are said not to support that version of events, and Mr Courtney says they must be lying. Mr Courtney submits that he was a good employee of 9 years standing who was dismissed on false pretences so that Berendsen did not have to pay his long service leave.

• [17] Berendsen's position is that although he failed to land a punch, Mr Courtney was the aggressor in the altercation on 4 December 2024. It submits that it conducted a proper investigation into the altercation; that most allegations against Mr Courtney were substantiated; and that the witness evidence stacks in its favour. Despite dismissing Mr Courtney for alleged serious misconduct, Berendsen paid Mr Courtney 5 weeks' pay in lieu of notice of termination.

• [18] Because there is significant disagreement over the facts said to give rise to the dismissal, the merits could only fairly be assessed in the course of an evidentiary hearing. In addition to whether a valid reason exists for dismissal, considerations such as Mr Courtney's age, length of service and alleged unblemished record will also be relevant.

• [19] Fairness as between the person and other persons in a similar position: Workplace fights involve more than one person, and in this case, Mr Courtney lost his job, while the other participant not. As with the merits of the application, the strongly contested facts of that exchange mean that fairness as between Mr Courtney and the other employee cannot be fairly assessed without an evidentiary hearing. That said, it does not appear to be in contest that the other employee engaged in racially‑based taunting toward Mr Courtney. If so, this might weigh in favour of a finding that Mr Courtney was treated less favourably than the other participant and thus unfairly.

• [20] On balance, I am not satisfied that there are exceptional circumstances in this case in connection with the delay in applying to the Commission. The matters above do not disclose any matter that could reasonably be characterised as out of the ordinary course, or uncommon, or unusual, or special in that regard. In the absence of exceptional circumstances, I am unable to allow additional time for Mr Courtney to apply for an unfair dismissal remedy.

• [21] The application for an unfair dismissal remedy is dismissed.

[1] Fair Work Act 2009 (Cth), s 394(2).

[2] [2011] FWAFB 975; [2011] 203 IR 1.

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