Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy; application made outside the time prescribed under s.394; exceptional circumstance; time within which to make an application under s.394 extended

[1] Following are my reasons for decision for a finding advised to the parties this morning that an extension of time should be granted to Mr Saki Elefantis (the Applicant) for the making of an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against his former employer, The Trustee for Timber Ridge Unit Trust (the Respondent).

[2] The Applicant's employment with the Respondent was terminated with effect from 11 May 2021. The unfair dismissal application was lodged in the Fair Work Commission (the Commission) on 10 June 2021.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on Tuesday, 1 June 2021. The application was therefore filed 9 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3).

[4] Consistent with the Commission's usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Elefantis' application. The Trustee for Timber Ridge Unit Trust object to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application.

[5] The application for an extension of time was listed for hearing on 9 July 2021. Mr Elefantis was represented by Ms Emma Barnes-Whelan of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Mr Adrian Ziccone of the Master Builders Association represented the Respondent. Witness statements were received from a CFMMEU Organiser, Mr James Harris and the union's Senior Information Technology Support Officer, Mr Mario Barbaritano. The witness statements were admitted without objection and neither person was required for oral evidence.

[6] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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 nor unprecedented, nor even very rare.[1] 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.[2]

[7] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

[8] I am satisfied on the material before me that, for the reasons set out below, there are exceptional circumstances in Mr Elefantis' case and that an extension of time should be granted for the making of his unfair dismissal application.

[9] Mr Elefantis was employed as a concrete cutter with the Respondent from 2004 until his dismissal on 11 May 2021.[3]

[10] On 11 May 2021, Ms Catherine Thomson, the Respondent's Managing Director, raised with Mr Elefantis his failure to complete his timesheets and his late arrival and early departure from work on 5 May 2021.[4] Mr Elefantis asserts that he completed his timesheets in accordance with established custom and practice of the Respondent and disputes the allegation of his late arrival and early departure on 5 May 2021. The nature of the exchange between the two on 11 May 2021 is contested and is not so far the subject of evidence. The CFMMEU on behalf of Mr Elefantis rejects that he engaged in misconduct, whereas the Respondent's submissions filed by its representative characterise the Applicant as failing to follow a lawful direction as well as being aggressive and menacing.

[11] Mr Elefantis received a letter of termination following this exchange on 11 May 2021[5] setting out the grounds of dismissal as

"... serious misconduct following our discussion at Auscut premises regarding your timekeeping.

Your refusal to complete a timesheet as part of your employment is not acceptable nor is your continued threatening and intimidating behaviour towards staff including myself."[6]

[12] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

• (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.

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[13] A decision to allow a further period for making an application requires the Commission to be satisfied that there are "exceptional circumstances", taking into account the six nominated criteria.

[14] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:

"[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance." [7]

[15] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[8]

[16] In considering whether an extension of time should be granted to Mr Elefantis, I am required to consider all of the criteria in s.394(3), which I now do.

[17] 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 of the circumstances must be considered.[9]

[18] The Applicant cited reasons for the delay in lodging the application to a technological error with his representative's IT systems. Through his union, the Applicant provides the timeline of events from 11 May 2021 as:

"19. On 17 May 2021, the Applicant called the CFMMEU office and advised that he has been trying to get in contact with Mr Harris regarding his dismissal, which occurred on 11 May 2021.

20. On 26 May 2021, Mr Harris contacted the Applicant and discussed the circumstances surrounding his dismissal. He referred the matter to the CFMMEU's legal department the following day.

21. The Applicant contacted the CFMMEU on several occasions following the date of his dismissal and prior to 1 June 2021 to get an update as to the status of his application.

22. The application was sent by Ms Barnes-Whelan to the email to the FWC's Melbourne Registry and Unfair Dismissal Team within the 21-day timeframe permitted by the FW Act. The email was shown in her sent inbox as having been delivered at 4.07 pm on 1 June 2021.

23. On 2 June 2021, Ms Barnes-Whelan notified the Applicant that the application had been lodged the previous day.

24. An absence of correspondence from the FWC regarding the matter prompted Ms Barnes-Whelan to contact the FWC's Melbourne Registry on 10 June 2021 to request an update and confirm that the application was received. Upon becoming aware of the application not being received by the FWC, she requested that the CFMMEU's IT department investigate the matter. It was confirmed that day that a technological error resulted in the filing email not being delivered and upon becoming aware of this, a further application was filed that afternoon.

25. The IT investigation revealed that the email had been captured by an email filtering service - operated by an external provider - without the CFMMEU having been alerted to the fact that it had been quarantined. The IT department confirmed that this - to the best of its knowledge - was the first instance of an outgoing email being quarantined by the system. As this was an anomaly the external provider had no system in place to alert the sender or the CFMMEU's IT department to the quarantined email."[10]

[19] The witness statement of Mr Mario Barbaritano, a Senior Information Technology Support Officer with the CFMMEU, details that "the CFMMEU uses an email filtering service managed by an external provider to filter potential incoming and outgoing email threats."[11] The filter works by capturing possible malicious or suspect email and quarantines the item. Mr Barbaritano submits that "[w]e have only recently become aware that in the event that the service automatically quarantines a potential outgoing malicious or suspect email, there is no alert [to the sender] generated."[12]

[20] The CFMMEU has provided a report from their provider that shows that the email sent by Ms Barnes-Whelan on 1 June 2021 was quarantined.[13]

[21] The Respondent objects to the classification of the reason for the delay as a 'technological error' asserting that "that this was not an 'error' because the IT system was installed consciously and deliberately by the CFMMEU, as opposed to some external actor. The IT system that captured this email was performing its intended operation and not some 'error'."[14] Further, the Respondent asserts that if it is accepted that the reason for the delay was an 'error', it does not amount to exceptional circumstances.[15]

[22] The late lodgement of an application due to representative error may be grounds for an extension of time however the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay.[16]

[23] The Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency explained that:[17]

"The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged."

[24] Mr Elefantis followed up with his union on more than one occasion within the timeframe to file the application.[18] Mr Harris in his witness statement submits that he was notified on 17 May 2021 from the CFMMEU's legal department that the Applicant had been attempting to contact him regarding the dismissal.[19] Mr Harris contacted the Applicant on 26 May 2021 who confirmed he wanted to challenge his dismissal as he disputed the reasons provided by the Respondent for his dismissal.[20] Mr Harris submits that he referred the matter to the CFMMEU's legal department the following day as well as that Mr Elefantis contacted the union on at least three occasions between the date of dismissal and 1 June 2021 in order to seek a status update about his application. Ms Barnes-Whelan also advised the Applicant on 2 June 2021 that the union had filed an unfair dismissal application with the Commission.

[25] I consider the explanation provided by the Applicant to be an acceptable explanation for the delay. The evidence submitted by the Applicant demonstrates that he took reasonable steps to dispute his dismissal by contacting his union representatives within the 21-day timeframe for the filing of an unfair dismissal application. Ms Barnes-Whelan attempted to file Mr Elefantis' unfair dismissal application on 1 June 2021. Had that email been received, the application would have been received within the legislative timeframe.

[26] The witness statement of Mr Barbaritano has been admitted into evidence with no cross-examination from the Respondent. The Respondent does not object to its admission. Accordingly, I accept and rely upon the contents of the statement. Ms Barnes-Whelan was unaware that her attempt to file the unfair dismissal application had been unsuccessful until her subsequent communication to the Commission on 10 June 2021. Although Mr Barnes-Whelan can be criticised for not following up on the application earlier since the risks of something going wrong with an attempted application inexorably increase if the filing is left to the last day of the lodgement period, she took immediate steps to rectify the failure on 10 June 2021 once notified that the 1 June 2021 email had not been received.

[27] The Respondent argues that a technical problem experienced by a representative should be treated the same as if it was experienced by an unrepresented applicant, with the Commission often not treating that situation as an acceptable explanation for a filing delay. While I do not demur generally from that proposition this matter is distinguishable from, say, a case in which a party tried to lodge an application at 11.55pm on the last day of filing but failed to do so because their internet connectivity dropped out. If that was Ms Barnes-Whelan's experience, then it would not be an acceptable explanation. In this case though she "sent" the email which got as far as the union's email filter and went no further. As far as she was concerned the email had actually been transmitted to the parties to whom she sent email. The email filter was supposed to notify her the email had been quarantined but failed to do so. This is the first occasion the union has experienced this problem. If this was the fifth or tenth time the union had experienced the problem, it would likely not be an acceptable explanation.

[28] Instead, it may be found that Mr Elefantis was not to blame for the delay. He instructed the union to lodge an application and followed up progress with the application on several occasions. The union generally was diligent in attempting to lodge an application but was tripped up by the email filter working in a manner no one within the CFMMEU had anticipated or experienced before. The whole of these circumstances leads to the conclusion that the Applicant has put forward an acceptable explanation for the delay in making an application for unfair dismissal remedy.

[29] The finding of an acceptable explanation weighs in favour of a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[30] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

[31] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[21]

[32] The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J's judgement in Brodie-Hanns v MTV Publishing Ltd; "[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time"[22] (underlining added).

[33] The Applicant submitted that he disputed the dismissal by "notifying the CFMMEU of his desire to dispute his dismissal. He also contacted the CFMMEU on several occasions prior to 1 June 2021 to seek an update on the matter."[23] Ms Barnes-Whelan notified the Applicant on 2 June 2021 that the CFMMEU had filed his application the day prior[24]. I therefore place little weight on the Respondent's assertion that the Applicant did not take further steps after 1 June 2021 to confirm that his application had been filed.[25]

[34] Accordingly, this is a neutral factor in my consideration of whether an extension of time should be granted for the making of the unfair dismissal application.

[35] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[36] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[37] At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[26] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[27]

[38] The Applicant submits that Ms Thomson approached him on 11 May 2021 regarding an alleged refusal to complete his timesheet and that in response he explained that he completed his timesheet consistent with the established custom and practice of the Respondent. He further submits that he extracted himself from the interaction before it escalated.[28]

[39] The Respondent disputes the Applicant's characterisation of the events of 11 May 2021. It submits that Mr Elefantis was dismissed summarily for two interrelated reasons, that the merits of the matter indicate that there is a valid reason for dismissal and the termination was consistent with the Small Busines Dismissal Code as the Respondent is a small business employer.[29] The Respondent puts forward that on 11 May 2021, the Applicant was verbally and physically aggressive towards Ms Thomson[30] when she requested that he complete his timesheets and that he had a history of aggressive conduct in the workplace.[31] Further, it is submitted that the Applicant failed to follow a lawful and reasonable direction in refusing to complete his timesheet.[32]

[40] It is the case in this matter, as with most extension of time matters, that the uncertainties about each party's case led me to find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of Mr Elefantis' unfair dismissal application.

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

[41] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past.[33] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[34] In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues.[35]

[42] Mr Elefantis has provided an explanation for the delay in the filing of the application and for the period prior to that. He relied upon the CFMMEU to lodge his application in compliance with the relevant legislation. Such steps would ordinarily have resulted in an application being lodged on time. Mr Elefantis proactively challenged his dismissal and was notified by his representative on 2 June 2021 that his application had been filed. The late filing of the application was through no fault of his own.

[43] Having considered each of the factors set out in s. 394(3), I am satisfied that there are exceptional circumstances warranting Mr Elefantis being granted an extension of time to lodge his application and I shall exercise my discretion to grant him an extension of time to lodge his application until 10 June 2021.

[44] The Application will now be programmed by me for a hearing on the merits, and Directions for that purpose will be issued shortly.

Ms E. Barnes-Whelan of the CFMMEU for the Applicant

Mr A. Ziccone of the Master Builders Association for the Respondent

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Applicant Outline of Submissions, 25 June 2021, [1].

[7] Nulty v Blue Star Group, [2011] FWAFB 975; 2011, 203 IR 1, [13].

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [38].

[10] Applicant Outline of Submissions, 25 June 2021.

[11] Witness Statement of Mario Barbaritano, 25 June 2021, [6].

[14] Respondent's Outline of Submissions, 2 July 2021, [12].

[16] McConnell v A & PM Fornataro (t/a Tony's Plumbing Service) [2011] FWAFB 466 citing Davidson v Aboriginal and Islander Child Care Agency (AIRCFB, Ross VP, Watson SDP, Eames C, 12 May 1998) Print Q0784.

[17] Davidson v Aboriginal and Islander Child Care Agency (AIRCFB, Ross VP, Watson SDP, Eames C, 12 May 1998) Print Q0784.

[18] Witness Statement of James Harris, 25 June 2021, [10].

[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].

[23] Applicant Outline of Submissions, 25 June 2021, [28].

[25] Respondent's Outline of Submissions, 2 July 2021, [39].

[26] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].

[27] Haining v Deputy President Drake (1998) 87 FCR 248, [250].

[28] Applicant's Outline of Submissions, 25 June 2021, [2]-[3].

[29] Respondent's Outline of Submissions, 2 July 2021, [49].

[33] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].

[34] Jalil v BMD Constructions Pty Ltd [2014] FWC 9357, [10].

[35] Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773, [38].

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