[2014] FWC 5864
The attached document replaces the document previously issued with the above code on 1
September 2014.
The name “Mr Christian” is replaced with “Ms Jennings” in the last sentence of paragraph
[17].
Associate to Deputy President Gostencnik
Dated 3 September 2014
1
Fair Work Act 2009
s.394—Unfair dismissal
Ishan D’Souza
v
Henry Schein Halas
(U2014/9985)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 SEPTEMBER 2014
Application for relief from unfair dismissal
[1] This is an edited version of a decision delivered in transcript on 25 August 2014. Mr
Ishan D'Souza (Applicant), has applied under s. 394 of the Fair Work Act 2009 (Act) for an
unfair dismissal remedy. The Applicant was employed in a sales capacity with Henry Schein
Halas (Respondent) The Respondent is a supplier of equipment to dental surgeries. The
Applicant commenced employment with the Respondent on 15 January 2013, having earlier
entered into a contract of employment.
[2] The Applicant's employment with the Respondent was terminated for reasons relating
to a mixture of performance and conduct issues. The performance issues are said to relate to
poor sales results and complaints from customers, while the conduct issues are said to relate
to complaints made by colleagues about the Applicant's aggressive and pushy behaviour.
There is a dispute about the date on which the applicant's employment ended.
[3] The Applicant says that he believes that his employment ended on 22 May 2014, the
date on which he received a written letter confirming the termination of his employment;
while the Respondent maintains that it advised the Applicant at a meeting on 21 May 2014
that his employment was to be terminated with effect from that day, and that he would be paid
an amount in lieu of notice, albeit that the Respondent maintained a right to dismiss the
employee without notice pursuant to the contract of employment.
[4] The date on which the Applicant's employment ended or, to put it another way, the
date on which the dismissal took effect is important because the Applicant lodged his unfair
dismissal remedy application on 12 June 2014. Therefore, if as the Respondent asserts, the
Applicant's employment ended on 21 May 2014, the Applicant lodged his application for a
remedy outside of the time prescribed by s. 394(2) of the Act.
[5] In those circumstances the Applicant would need to persuade me that he should be
granted or permitted to make the application within a further period because there are
exceptional circumstances. Turning first then to the question of the date on which the
[2014] FWC 5864
EX TEMPORE DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 5864
2
dismissal took effect, there is no dispute between the parties that on 21 May 2014 the
Applicant attended a meeting with Mr Russell Christian, the Respondent's Equipment
Director, and Ms Susan Jennings, the Respondent's Human Resources Director.
[6] There is also no dispute that during the meeting the Applicant's performance and
conduct was discussed. That which is in dispute relates to whether the Applicant was told by
either Mr Christian or Ms Jennings that his employment with the respondent will end with
effect on that day. The Applicant gave evidence that during the meeting on 21 May 2014 the
following exchange took place. He says Ms Jennings said to him:
"We have discussed with Russell, and from your conversation I believe this may not work". I said
there should be a process in place where if there is something that needs to be done I have a chance to
correct it. Russell Christian said, "You need to hand in your phone and your computer and your credit
card". I said I have personal information that I need to recover. I was in shock. I do not recall any
mention of instant dismissal or pay in lieu of notice. It was all a blur and I can't remember exactly
what was said. Russell Christian gave me an undertaking verbally that they would not access my
computer until I came back the following day.
[7] The evidence was thereafter that the Applicant asked for a written undertaking about
the access to the computer and a written undertaking was forthcoming. The Applicant's
evidence was that he handed over his credit card, phone and computer as well as his building
pass access card, and that he sought and was given an undertaking that his computer would
not be tampered with until he was able to access his personal files.
[8] During the course of the evidence today it is clear that attempts were made on 21 May
2014 to download the Applicant's personal files on the computer but these proved
unsuccessful, and it was thereafter that arrangements had been made for the Applicant to
return at noon the following day. The written undertaking that was given also acknowledged
that the Applicant had returned to the company credit cards and the office FOB, which I take
to be the office security pass.
[9] I would also note that the contract of employment provides in clause 23.6 that on
termination of employment for any reason the Applicant is required to return, amongst other
things, all property to the company. At least some of that property was returned on 21 May
2014. The Applicant gave evidence that on 22 May 2014 he returned to the workplace at
about 12 noon and shortly thereafter proceeded to access his computer and download personal
materials that were stored on that computer onto a hard drive. This was in the company of
another employee whose name or first name is Teddy, and according to the witness statement
of Mr Russell Christian, his full name is Teddy Chalouhi.
[10] The Applicant also gave evidence that while he was completing the task of
downloading personal materials, Mr Christian attended the room in which he was in and
handed him a dismissal letter, which he says made clear to him that his employment was
terminated without notice, and that he would be paid a sum in lieu of notice. In essence, the
Applicant's evidence is that it was only on 22 May 2014 that he became aware that he had
been dismissed without notice, and consequently believed that day to be the day on which the
dismissal took effect.
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[11] Mr Christian's evidence was that he advised the Applicant of a meeting to occur on
21 May 2014 and he did so both orally and in a letter to the applicant dated 20 May 2014,
which set out the matters about which discussion would occur. That letter, that is the letter of
20 May 2014, has a subject note as "Notice of formal counselling meeting". The Applicant's
evidence was that he recalls receiving a letter on 20 May 2014 but did not specifically recall
its contents or that the letter, which is marked RC1 to exhibit R3, was the letter that he
received on that day.
[12] Mr Christian's evidence was that Ms Jennings advised the Applicant during the
meeting on 21 May 2014 that his employment with the Respondent would end with
immediate effect on that day. He said that she made it clear to the Applicant that that was the
case. Mr Christian said that Ms Jennings explained to the Applicant the consequence of the
dismissal. Teddy Chalouhi alerted him to the availability of the Respondent's employee
assistance program.
[13] Mr Christian confirmed that there were arrangements made for the Applicant to return
the next day to retrieve personal files from his computer, and that he had given a written
undertaking that had effect on 21 May 2014. Mr Christian also confirmed that when the
Applicant returned on 22 May 2014 that he handed the Applicant a letter which confirmed the
termination of the Applicant's employment.
[14] I note that the letter of termination dated 22 May 2014 makes clear, at least on the
Respondent's part that termination of employment was effective immediately and that the
Applicant’s last working day was 21 May 2014. The evidence of Ms Jennings was essentially
corroborating of Mr Christian's account of the meeting of 21 May 2014. She confirmed that
she had told the Applicant that he was dismissed with effect on 21 May 2014. Ms Jennings
also made notes of the meeting, which were produced in evidence at the hearing. The notes
indicate that the Applicant was told that a decision had been taken to terminate his
employment.
[15] The notes do not make reference to summary dismissal or to payment in lieu of notice.
Ms Jennings gave evidence that there is no reference to the payment in lieu of notice in the
notes because she was the person who explained to the Applicant that he would be paid in lieu
of notice and she was not always in the habit of making notes while she was talking.
[16] The notes also record that the Applicant objected to handing over his computer and
that an attempt was made to recover personal materials on the Applicant’s computer but as
that failed, arrangements were put in place for the Applicant to return the next day.
Ms Jennings also produced an employee separation certificate which she says was sent to or
given to the Applicant. The employment separation certificate attached to her statement sets
out that the Applicant's employment ceased on 21 May 2014.
[17] Where the evidence of the applicant is in conflict with or inconsistent with the
evidence of Mr Christian and Ms Jennings, I prefer the evidence of Mr Christian and
Ms Jennings on the question of the date that the Applicant's dismissal took effect, and I do so
for the following reasons. First, both Mr Christian and Ms Jennings appeared to me to have a
[2014] FWC 5864
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clear recollection that Ms Jennings told the Applicant that his dismissal would take effect on
that day, being 21 May 2014.
[18] Secondly, the Applicant's evidence was that he did not recall being told that on that
day. He also said that the events were a bit of a blur. As I indicated during exchanges with
the Applicant's representative that is not evidence that the Applicant was not told on that day
that his dismissal took effect. It is simply his evidence that he does not have a recollection of
being told.
[19] Thirdly, the Applicant's conduct on 21 May 2014 as evidenced by the return of
equipment, a credit card and security facilities to the Respondent is consistent with the
Applicant's employment coming to an end on that day. The notes prepared by Ms Jennings
are also consistent with the evidence given by Mr Christian and Ms Jennings and tend to
support the fact that the Applicant's employment was terminated with effect on 21 May 2014.
True it is that the notes do not indicate that employment would end on that day and the notes
do not set out any reference to pay in lieu of notice.
[20] However, when one reads the notes as a whole, including the references to the return
of the computer, the objection to the return of the computer, the attempts made during that
meeting to download unsuccessfully personal material of the Applicant, and the arrangement
made for the Applicant to return at a specified time in the company of another employee, this
is all consistent with the employee having been told on that day that his employment would
end with effect on that day. The return of equipment by the Applicant on 21 May 2014 is also
consistent with his obligation under the contract of employment to return property on
termination and is therefore consistent with employment ending on 21 May 2014.
[21] Fourthly, the letter given to the Applicant by Mr Christian dated 22 May 2014 is in the
nature, in my view, correspondence confirming that which had occurred previously. That is,
it confirms that the day before the Applicant was told that his employment would end on that
day. To that extent, it is also consistent with the evidence of Mr Christian and Ms Jennings.
There is no suggestion that the letter was prepared for the purposes of rewriting history.
[22] Fifthly, the employment separation certificate also carries a date of termination of
21 May 2014, and there is no evidence that the Applicant disputed this date, or asked the
Respondent to modify the employment separation certificate to reflect the date he believed he
was dismissed, namely 22 May 2014.
[23] Finally, the Applicant's evidence given orally today seems to be inconsistent with
assertions made by him in his initiating application, and in particular the assertions that are set
out in paragraph 2 in answer to question 3.2 of the application form, where he sets out that he:
…was verbally advised by the director, Russell Christian, on 20 May to attend a meeting -
et cetera, and that he was:
…to come to a formal counselling session on the 21st of May.
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And then again at paragraph 6 in answer to the same question, he that in the same meeting (on
21 May 2014) he was:
… told that my employment was terminated and I was asked to surrender my computer, credit card,
office keys, laptop and mobile phone.
[24] He then goes on to discuss the undertaking. Overwhelmingly the evidence points to
the employment ending on 21 May 2014, and I am inclined to make a finding to that effect.
But that is not the end of the matter.
[25] The Applicant submits that even if the Respondent intended to terminate the
employment of the Applicant with effect on 21 May 2014, it did not give effect to that
intention.
[26] This is because in order to validly bring about an end to the employment of the
Applicant on 21 May 2014 the Respondent should have, but did not make payment in lieu of
notice to him on that day. It is uncontroversial that payment in lieu of notice was, or a
payment representing payment in lieu of notice was made to the Applicant on 27 May 2014.
The Applicant submitted that as the payment in lieu of notice was made on a later day, the
Applicant's employment did not end until that later day.
[27] To make good this proposition the Applicant points to s. 117 of the Act which contains
the termination of employment provisions, which are part of the National Employment
Standards. These provisions set out the circumstances in which an employer may terminate
the employment of an employee with and without notice. In particular the Applicant relies
upon the prohibition of termination of an employee's employment unless the employer has
relevantly paid to the employee an amount in lieu of notice that is found in s. 117(2)(b) of the
Act.
[28] The Applicant in his written submissions also relies upon the proposition that at
common law a notice of termination is invalid and will not operate to end the contract of
employment. So it is submitted that as the Respondent failed to pay to the Applicant a
payment in lieu of notice on 21 May 2014, termination of the employment on that day was a
nullity and the termination of the Applicant's employment took effect on a later day, being
27 May 2014, the date on which payment in lieu of notice was actually made to the Applicant.
[29] With respect, these submissions have no substance. They misunderstand the effect on
the employment relationship of an unlawful act. They misunderstand the distinction between
the contract of employment and the relationship of employment under that contract. Section
117(2) prohibits an employer terminating the employment of an employee without giving
notice or making payment in lieu of notice before effecting termination.
[30] If an employer terminates the employment of an employee without notice and without
making payment in lieu of notice before effecting termination, the result is that the employer
has acted unlawfully. It does not invalidate the termination of the employment. An
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employee's remedy is to apply for a penalty for a contravention of that provision by reference
to a breach of s. 44(1) of the Act which provides that:
An employer must not contravene a provision of the National Employment Standards.
[31] The note makes clear that that provision is a civil remedy provision. But the
employment nevertheless has ended notwithstanding the unlawful act. The Applicant’s
employment came to an end on 21 May 2014. The Applicant referred me in oral argument to
a decision of the Full Bench of this Commission in Mihajlovic v Lifeline Macarthur1 , and in
particular to extracts in that decision of another decision of Wilcox CJ and also to
paragraphs 16 and 17 of that decision. Firstly, the passages that are referred to in the Full
Bench decision from the decision in Siagian v Sanel Pty Ltd2 merely set out the proposition
that that required determination. The Full Bench makes this clear
The court framed the question to be determined in the following way -
[32] The extract then set out arguments raised by counsel by reference to some earlier
English authority. It is clear that the matter before the Full Bench concerned whether or not
termination at the initiative of the employer took effect when notice of termination was given
or when notice expired. So much is clear from paragraph 16. The Extract does not stand for
the proposition that invalid notice renders the employment termination a nullity. So much is
also clear from the decision in Siagian itself where Wilcox CJ deals with substantially similar
arguments to that raised by the Applicant today, and comes ultimately to the view that it
would lead to an absurd result if termination in contravention of the then unlawful termination
provisions set out in the Industrial Relations Act 1988 had the effect of continuing the
employment because it would render nugatory the remedies for a contravention set out under
that Act.
[33] Wilcox CJ makes clear that ultimately termination of employment will usually be
inferred from the date on which the employer intended the termination of employment to take
effect. It seems to me that the reasoning of Wilcox CJ is consistent with the reasoning on the
question of when employment under a contract of employment ends as set out in a decision of
the High Court of Australia Automatic Fire Sprinklers v Watson 3 , and in particular the
conclusion of Dixon J at 469 when his Honour said:
“For the reasons I gave earlier in this part of the judgment, I think that there is nothing in the general
law preventing a wrongful dismissal of a servant operating to discharge him from his service
notwithstanding that he declines to accept the dismissal as absolving him from further performance...-
”
[34] Similar observations to those of His Honour were made by the other Justices of the
court in that judgment. So it is that the decisions referred to by the Applicant are of no
assistance and the decision in Siagian is contrary to the proposition that he advances.
Likewise under the common law, a failure by an employer to give notice of a termination or
1 (2014) FWCFB 1070
2 (1994) 54 IR 185
3 (1946) 72 CLR 435
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to make payment in lieu of notice would be a wrongful dismissal but a dismissal nonetheless.
An employee's remedy lies in damages. The employment relationship under the contract does
not continue even though the contract of employment may well do so.
[35] Even if I were to accept for a moment the Applicant's proposition at least in so far as it
relates to the contract of employment, the failure to give notice or to make payment in lieu of
notice at the time of purporting to terminate the contract would likely amount to a repudiation
on the employer's part, and that puts the employee at an election either to accept the
repudiation and bring the contract to an end or to continue the contract notwithstanding the
repudiation.
[36] In this case the Applicant's conduct in returning the equipment to the Respondent and
in not suggesting in any way that he was ready, willing and available to perform the work
during the notice period, or at least until 27 May 2014, is consistent with conduct that is
accepting of the repudiation thereby electing to bring the contract of employment (and thus
the employment under it), were it necessary for me to so conclude, to an end on 21 May 2014.
Now as I say, I do not need to decide that question because I am satisfied that the employment
relationship is capable of ending before the contract ends. But to the extent that there was that
conduct, it began on 21 May 2014.
[37] It seems to me clear that the Respondent decided and notified the Applicant that his
employment with the Respondent was to end with effect on 21 May 2014. It told him that
during the meeting on 21 May 2014. That was the date on which the Applicant was notified
of his dismissal. That was the date on which the employment ended and it is not to the point
that the employee cannot now recall that fact. On the balance of probabilities it seems to me
clear that that was communicated effectively to the Applicant on 21 May 2014.
[38] It follows that the application for a remedy made by the Applicant was outside the
time prescribed in s. 394(2). Consequently the remainder of this decision is concerned with
whether the Applicant should be permitted to lodge an unfair dismissal remedy application
within a further period as prescribed by the Commission, or as determined by the Commission
on the basis that there are exceptional circumstances. I will deal firstly with the relevant
principles that are to be applied in considering whether or not to allow an extension of time.
[39] As I have already indicated, the Applicant's dismissal took effect on 21 May 2014,
therefore his application to the Commission that it deal with an unfair dismissal remedy
application should have been made within 21 days after the date on which the dismissal took
effect, that date being the 11th, or the last of those days being 11 June 2014. The application,
as I indicated earlier, was made on 12 June 2014, the date the Commission received the
application. It was therefore one day outside of the time prescribed.
[40] The Commission has a discretion to allow a further period within which an application
may be made, but the discretion to allow a further period will only be exercised if I am
satisfied that there are exceptional circumstances, taking into account:
the reason for the delay;
whether the Applicant became aware of the dismissal after it took effect;
[2014] FWC 5864
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any action taken by the Applicant to dispute the dismissal;
prejudice if any that the Respondent might suffer including the prejudice caused by the
delay;
the merits of the application; and
fairness as between the Applicant and other persons in a similar position.
[41] It is clear from the structure of s. 394(3) of the Act that each of the matters that are set
out in subsection (3) must be taken into account when assessing whether or not there are
exceptional circumstances. Ultimately it is a weighing exercise with no particular matter
necessarily taking or having attributed to it greater or lesser weight. Exceptional
circumstances are circumstances that are out of the ordinary, that are unusual, special or
uncommon but the circumstances need not be unique or unprecedented, and need not be even
very rare.
[42] So before considering whether to exercise my discretion at all I first need to be
satisfied whether there are exceptional circumstances, and I will deal with each of the above
mentioned considerations in turn. Firstly as to the reason for the delay, the Applicant
essentially advances three general reasons as constituting, either separately or in combination,
as an acceptable reason for the delay. First, the Applicant says that he was distraught or
shocked by his dismissal. Secondly, the Applicant says that he had been spending time
during that 21 day period seeking legal advice and representation.
[43] I take that to be a submission that seeking, obtaining or not obtaining legal advice or
representation was a factor which caused delay. Thirdly, the Applicant says that it was not
initially clear to him the date on which his dismissal took effect, that he thought he would be
working the notice period and it was not until he received the letter of 22 May 2014 that he
became aware that he would not be working the notice period. That is why he believed that
22 May2014 was the date on which his dismissal took effect.
[44] The Applicant says that he prepared an application for an unfair dismissal on 10 June
and that he hand-delivered it to the Commission on 12 June 2014. As to the first of these
reasons, the Applicant offers no medical evidence that the dismissal caused a level of distress,
shock or anxiety so as to affect his cognitive functioning or his capacity to make this
application, or to understand that the application had to be made within 21 days. As the
authorities make clear, it is not uncommon for news of a dismissal to cause a level of distress,
anxiety or shock. But that will generally be an insufficient basis to found an acceptable
explanation for a delay.
[45] There must in my view be some level of distress, shock or stress which has the effect
of impairing an Applicant's cognitive functioning in such a way that it will explain why the
application was lodged after the time prescribed. There is no evidence of any relevant
impairment in this case. Indeed on the Applicant's own evidence he was operating on the
assumption that the date of the dismissal was 22 May. On that basis he would maintain that
his application was lodged within time. This is suggestive of an absence of any impairment.
The Applicant's reason, or that first reason, does not provide an adequate or acceptable
explanation for the delay.
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[46] As to the second reason, namely that he was seeking legal advice and representation,
this provides no real explanation for the delay. There is no suggestion that he was sent to the
wrong agency by a representative from whom he sought advice. There is no suggestion that
he gave instructions to a representative to file an application. There is not even a suggestion
that he was dissuaded from filing an application and then got a second opinion. There is
nothing which would explain why seeking legal advice or representation affected his capacity
to bring an application within time.
[47] If an Applicant is seeking advice or representation he is under an obligation to do so
diligently. There is no explanation as to why seeking advice or representation resulted in the
delay, and so the reason provides no adequate or acceptable explanation for the delay. As to
the third reason, that the Applicant was confused as to the date that his dismissal took effect,
that he thought that the dismissal took effect on 22 May 2014, I make the following
observations.
[48] First, even if the Applicant was confused, on his own evidence he received the letter
on 22 May 2014. That letter advised him that his dismissal took effect on 21 May 2014.
There should have been no confusion on reading that letter. Secondly, the Applicant received
an employment separation certificate from the Respondent which confirmed the information
that was set out in the letter of termination. That is, that his employment came to an end on
21 May 2014.
[49] Thirdly, even if he disputed that 21 May 2014 was the date on which his dismissal
took effect and he believed that 22 May 2014 was the date of the dismissal, it should have
been clear to him that there was a dispute about that issue. He made the decision not to lodge
the application until 12 June 2014. Having signed the application on 10 June 2014 there is no
explanation as to why he waited until 12 June to lodge it. Had the Applicant been a little bit
more diligent and lodged on 11 June 2014 we would not have an issue.
[50] That there were was some confusion about the date of termination does not in the
circumstances of this case, faced with the written material advising the Applicant that at the
very least the Respondent maintained that employment ended on 21 May 2014, the confusion
does not provide an adequate or acceptable explanation for the delay. So it is that when
viewed either individually or collectively, the reasons that are advanced by the Applicant for
the delay do not provide an acceptable explanation for the delay. This is a factor therefore
that weighs against the Applicant.
[51] As to the question of when the Applicant became aware or first became aware that his
dismissal took effect, the Applicant maintains that he was not aware that his dismissal took
effect on 21 May 2014. Even if I accept his evidence that on 21 May 2014 he was not aware
that his dismissal took effect on that day, it is very difficult to conclude that the Applicant was
not aware on 22 May that his dismissal took effect on 21 May 2014 because he was told in
writing that that was the case. That the Applicant disputed that fact is beside the point.
[52] In any event, there is no evidence other than the application which is made outside of
the time prescribed that the Applicant disputed that his termination took effect on 21 May.
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The Respondent maintains, and I accept, that it told the Applicant on 21 May that his
employment would end on that day. It confirmed that position in writing the next day. The
best that can be said is that the Applicant was aware on 22 May that his dismissal took effect
on 21 May. This is not a factor that assists the Applicant because ultimately he still had 20 of
the 21 days in which to file the application within time.
[53] I accept the submission of the Respondent that ultimately this consideration is neutral.
[54] As to action taken to dispute the dismissal, it is common ground that no action was
taken by the Applicant to dispute his dismissal other than by making the application. This
weighs against the Applicant.
[55] As to prejudice, the Respondent properly has accepted that it will not suffer any
prejudice but notes, and I accept, that the absence of prejudice alone does not amount to an
exceptional circumstance that would warrant the extension of time of an unfair dismissal
remedy application. I consider this factor to be neutral in this case.
[56] Turning then to the merits of the application, in cases of this kind necessarily being
interlocutory, the merits of a case are not agitated in a sufficient way to enable a thorough
assessment of the merits. However it seems to me on a fair reading of the material that has
been filed, together with the evidence that was given today by the witnesses, the Applicant at
the very least has an arguable case. Again, this much was properly conceded by the
Respondent.
[57] In other words, the case that the Applicant seeks to advance is not without merit. It
seems to me that there will be, if permission were given to file out of time, serious issues
about whether the Respondent was justified in summarily dismissing the Applicant from his
employment. There is at least an argument to be made that the termination was a breach of a
contract of employment and perhaps an even better argument that the termination, summarily
at least, was a breach of s. 117(2) of the Act.
[58] There are also issues concerning the veracity of the complaints that are made by
customers and by colleagues, and it was accepted by Ms Jennings today that the specifics of
any particular customer complaint was not put to the Applicant during the meeting of 21 May
2014. Ultimately the veracity of the complaints made, and indeed the allegations concerning
under-performance, will need to be the subject of evidence and that evidence will be subject
to cross-examination. That the Applicant's case is not without merit is a factor that weighs in
his favour.
[59] As to the question of fairness between the Applicant and others in a similar position,
neither party made submissions that this particular consideration has particular relevance in
this case. In other words, no case was brought to my attention in which there are substantially
similar circumstances as those faced by the Applicant in this case. Ultimately this
consideration is neutral.
[60] Statutory time limits that apply to the exercise of a statutory right of the kind that is
the subject of this application are in place because parliament intends that such rights as exist
[2014] FWC 5864
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must be exercised promptly within the time prescribed, in this case by the Fair Work Act.
Time limits are not simply to be disregarded. Time limits are about balancing the right to
bring an action against the desirability that that action be brought promptly, because there is a
need to bring about certainty that actions taken by others will generally not be the subject of
challenge after the expiry of that time and it is only in exceptional circumstances that such
challenges will be permitted.
[61] Applications seeking an unfair dismissal remedy must be made within 21 days after
the dismissal took effect, and only in exceptional circumstances will the Commission even
consider exercising its discretion to allow a further period. When I weigh all of the matters
that I must weigh, taking into account that which is set out in s.394(3) of the Act, there is little
in the evidence or other material that have been filed that would persuade me that there are
exceptional circumstances warranting a consideration of my discretion to allow a further
period.
[62] It is true that the application is not without merit, but absent an acceptable explanation
for the delay and that the Applicant had at least 20 of the 21 days to lodge the application but
waited, on his version, until the last day on which he could lodge that application outweigh
that consideration. The Applicant provided no explanation for why he waited, having
concluded his application on 10 June, until the 12th to lodge that application. Those factors
collectively combine to outweigh the weight that I give to the merits of the application.
[63] The Applicant did not take any step at all to dispute his dismissal. He did not take any
step at all to dispute the date on which he now says his dismissal took effect. That there is no
prejudice to the employer does not operate in this case to outweigh or shift the balance in
favour of the Applicant. In the circumstances I am not satisfied that there are exceptional
circumstances, and so I will not exercise my discretion to allow a further period, with the
consequences that Mr D'Souza's application under s. 394 of the Act is dismissed.
[64] An order to that effect has been issued separately in PR 554703.
DEPUTY PRESIDENT
Y WORK THE FAIR MMISSION SEAL OF TAX
[2014] FWC 5864
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Appearances:
G. Dircks for the Applicant
B. Charles for the Respondent
Hearing details:
Melbourne.
2014.
25 August
Printed by authority of the Commonwealth Government Printer
Price code G, PR554694
