1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Justin Smith
v
MacFarlane Generators Pty Ltd
(U2014/15528)
COMMISSIONER WILSON MELBOURNE, 23 JANUARY 2015
Application for relief from unfair dismissal - whether extension of time should be granted.
INTRODUCTION
[1] This matter concerns an application made by Justin Smith alleging unfair dismissal
against his former employer, Macfarlane Generators Pty Ltd. Mr Smith’s application to the
Fair Work Commission (the Commission) is date stamped Friday 28 November 2014 and the
date on which the dismissal took effect was Friday 24 October 2014. As such, the application
is 14 days out of time.
[2] As a result of this circumstance, it is necessary to consider whether an extension of
time should be granted to Mr Smith for the making of his application.
[3] In considering an application for an extension of time for the making of an unfair
dismissal application, the Fair Work Act 2009 requires that I must be satisfied that there are
exceptional circumstances for the making of the application taking into account the criteria
which are specified within s.394(3) of the Act. It has been said in relation to the consideration
of these matters;
“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
[2015] FWC 632
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 632
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reasonably be seen as producing a situation which is out of the ordinary course,
unusual, special or uncommon.”1
[4] For the reasons set out below, I am satisfied there are exceptional circumstances
relating to Mr Smith’s application and I allow the further period that he seeks for the making
of his application.
BACKGROUND
[5] The Respondent in this matter, Macfarlane Generators Pty Ltd, objects to the
application continuing given that it was apparently commenced after the statutory period for
the making of an application for an unfair dismissal remedy, and the circumstances of the
matter are such that an extension of time should not be granted. Those circumstances include
that the application was lodged 14 days outside of the 21 day time limit and that there are no
exceptional circumstances for the delay that would allow the Commission to be satisfied that
a further period should be allowed for the making of an unfair dismissal application.2
[6] Certain matters are either agreed between the parties or there is consistency in the
evidence on these matters. Mr Smith first started employment with Macfarlane Generators on
18 November 2013,3 meaning that at the time his employment ended, he had worked for
Macfarlane Generators for slightly less than a year. At the time of his dismissal he was
employed as the company’s Field Services Manager. The duties entailed in that position
included managing a department of mechanics and electricians who service generators
throughout Victoria. In addition he held responsibility for smaller teams in New South Wales
and Queensland.4
[7] The material before me discloses that the circumstances by which Mr Smith’s
employment ended include that McFarlane Generators dismissed him in a meeting on 24
October 2014, ostensibly for reasons of poor performance.
[8] For the purposes of s.396 of the Act, I am satisfied that Mr Smith is a person protected
from unfair dismissal and the Small Business Fair Dismissal Code has no application to his
circumstances, for reason that his former employer employed approximately 60 employees at
the time of his dismissal.5 There is no assertion on the basis of the material before me that Mr
Smith’s employment was terminated for reasons of genuine redundancy.
EXTENSION OF TIME
[9] As already referred to, Mr Smith employment came to an end on Friday, 24 October
2014, and he made his application for an unfair dismissal remedy to the Fair Work
Commission on Friday 28 November 2014. Since applications for unfair dismissal must be
made within 21 days of the dismissal taking effect, unless an extension of time is granted by
1 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, at [13].
2 see Form F3 – item 2.2
3 See Form F2 at item 1.1; Form F3 at item 1.2
4 Exhibit R3, para 9
5 From F3, item 1.7
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the Commission, Mr Smith’s application should have been made no later than Friday, 14
November 2014. His application is therefore 14 days out of time.
[10] The capacity of the Fair Work Commission to extend the time for making an unfair
dismissal application is set out within s.394 of the Act. The Act provides a discretion for
extension, where I am satisfied there are exceptional reasons for doing so, taking into account
6 criteria referred to in s.394(3) as follows;
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or
complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[11] As referred to previously, in considering what may be “exceptional circumstances” the
Commission looks for circumstances that are out of the ordinary course; unusual; special, or
uncommon. Those circumstances need not be unique, unprecedented, or very rare.
[12] In considering these matters, I must have regard to each of the statutory criteria set out
in s.394(3), which I now do.
1. The reason for the delay
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[13] The evidence indicates that Mr Smith initially lodged a General Protections
application with the Fair Work Commission on 17 November 2014 and that he discontinued
the application on 28 November 2014, which is the same day he commenced these unfair
dismissal proceedings.
[14] Mr Smith’s General Protections application was made to the Commission 14 days
after the date on which his dismissal took effect. In accordance with the usual procedure the
General Protections application was allocated by the Commission’s staff to be dealt with by a
Member for conciliation, which happened to be Commissioner Ryan. An Employer Response
was sought, and the matter was listed for conference, initially on a date which did not suit
Macfarlane Generators, and so the conference was relisted for Monday 1 December 2014.
[15] The evidence and other material before me indicates that Mr Smith spoke with
Commissioner Ryan’s Associate, Ms Cashman and also the Commissioner himself on Friday
28 November 2014. This may have been the second conversation that Mr Smith had with the
Commissioner’s Chambers.
[16] Mr Smith did not recall the precise sequencing of who rang whom, however he does
recall that he had been concerned to raise with Commissioner Ryan’s Chambers the process
that was likely to occur in the course of the 1 December conference. In particular, Mr Smith
held a concern that the material he had received regarding the General Protections conference
and the description of the process contained therein did not appear to accord with what he had
been expecting as a result of speaking at an earlier point with another former employee of
Macfarlane Generators who, apparently, had commenced an unfair dismissal application
against the company on some earlier occasion. In the course of the conversation between Mr
Smith and Commissioner Ryan’s Chambers and Commissioner Ryan himself on 28
November 2014, Mr Smith formed the view that his General Protections application was not a
suitable vehicle for him to pursue his dispute against Macfarlane Generators.
[17] Having formed that view, Mr Smith then decided to discontinue his General
Protections application, which he did in the proper form on the same day, and also decided to
commence an unfair dismissal application against Macfarlane Generators, which he also filed
on Friday, 28 November 2014.
[18] There is no suggestion in the evidence of Mr Smith or any of the submissions of the
parties that the information imparted by Commissioner Ryan and his associate to Mr Smith
was other than factual and correct.
[19] In relating to the Commission in these proceedings his reasons for discontinuing the
General Protections application and commencing an unfair dismissal application, Mr Smith
gave the view that he had, at all times after his dismissal on 24 October 2014, wanted to take
Macfarlane Generators to task for its actions against him and those aspects of their actions
which he claimed amounted to unfairness or bullying. In both applications, under the
question “what outcome are you seeking by lodging this application?” Mr Smith wrote;
“I am seeking monetary compensation for lost income due to unfair dismissal and
monetary compensation for not providing a safe workplace. I am also seeking a safer
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workplace for the employees still working for Macfarlane Generators Pty Ltd. I would
also like to see Brodie's Law exercised should the commission see fit.”6
[20] In his evidence to the Commission in these proceedings, Mr Smith explained that he
had discontinued the General Protections application because, as he understood things, the
matter might lead to the issuing of a certificate as a precursor to proceeding to a Court,
whereas an application for an unfair dismissal remedy would lead to a telephone conference
of the parties which might lead to a resolution.
[21] Mr Smith also related, without any specifics as to date or content, having had a
number of conversations with staff within the Fair Work Commission about the potential of
an application, as well as with WorkCover. I drew the conclusion from listening to this
evidence, which was given repeatedly, that Mr Smith knew he wanted to do something about
his dismissal but was uncertain as to the best means by which to do so. I also drew the
conclusion from his evidence that, in relation to the conversations between he and
Commissioner Ryan’s Chambers, that such information as was given to him still left him
unclear as to the merits of the respective actions. It is also apparent from the evidence he
gave about what he thought may occur as a result of the General Protections action before the
Commission, that even having had the benefit of considering alternative actions and their
merits, he was still unclear about what might be expected.
[22] As a result of all of the material before me, I find that Mr Smith’s lack of knowledge
about the differences between an unfair dismissal remedy application and a General
Protections application was the reason for the delay in him making an application to the
Commission. I find also that at the time Mr Smith decided to make a change from a General
Protections application to unfair dismissal application, he continued to be confused about the
respective merits of alternative actions available under the Act. More particularly, I find that
Mr Smith’s lack of knowledge in this regard was the reason for the whole period of the delay
in making an application for unfair dismissal remedy between the last day on which it should
have been lodged, namely 14 November 2014 and the day on which it was lodged, namely 28
November 2014.
[23] In all the circumstances, it is apparent from the evidence and material before me that
Mr Smith was under a misapprehension as to the form of application that he should make in
view of the remedy that he sought from the Fair Work Commission.
2. Whether the person first became aware of the dismissal after it had taken effect
[24] On the basis of the evidence before me, I am satisfied that Mr Smith first became
aware of his termination of employment on Friday, 24 October 2014, being the date on which
Mr Korsten, the Company Sales Manager and Mr Kay, the General Manager met with him,
told him he was dismissed and provided him with a letter of termination. It is also apparent
from the letter of termination and the other material before me that Friday, 24 October 2014 is
also the day on which Mr Smith’s dismissal took effect. This is therefore not a circumstance
where Mr Smith only became aware of his termination at some point after the time that it did.
Accordingly, this is a neutral factor in my consideration.
6 See Form F2, Unfair Dismissal Application, item 2.1; and Exhibit A2, item 2.1
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3. Any action taken by the person to dispute the dismissal
[25] Mr Smith’s evidence about actions taken by him to dispute his dismissal is that he
wanted to take action against Macfarlane Generators and that he spent some time putting
together an application (which was initially the General Protections application) and that he
was motivated to ensure that the General Protections application was filed within the 21 day
time-limit allowed for the making of such applications, noting that the application was made
14 days after his dismissal took effect. His evidence also includes that he sought information
from the Fair Work Commission and WorkCover about what he could do, however Mr
Smith’s evidence as to when this occurred and the precise nature of what was said is unclear.
[26] Other than these actions, I am satisfied that Mr Smith took no substantive action to
dispute his dismissal, firstly until the making of his General Protections application to the Fair
Work Commission on Friday 14 November 2014, and secondly until his unfair dismissal
application on Friday, 28 November 2014.
[27] While I note that there is no clear evidence that he sought advice, proximate to his
dismissal, about its merits or any rights he may have, circumstantially it appears that such
seeking advice would, more than likely, have been prior to 7 November, the date on which the
General Protections applications made.
[28] In the circumstances of this matter, I take the view that consideration of this criterion
resolves more in favour of Mr Smith than not, although not definitively so, for the reason that
within 14 days of his termination he had filed his General Protections application. There is
however no evidence of a concerted or determined action to challenge his dismissal (other
than the filing of the General Protections application). He did not threaten such filing, or seek
formal advice on the subject. However, the filing of the General Protections application
demonstrates that it was apparently Mr Smith’s wish to dispute his termination of
employment and he had weighed the possibilities seriously and had gone to the extent of
making an application, apparently within time, for a remedy which he thought was suitable in
the circumstances and which addressed the relief that he sought.
4. Prejudice to the employer (including prejudice caused by the delay)
[29] While there has been prejudice and disruption to the employer already with these
proceedings, there is likely to be further prejudice if I were to grant the extension of time.
Balanced against this is the probability that a full merits proceeding is not likely to bring
forward much additional material to that already before the Commission, while noting that the
material that has been brought forward would be subject of testing if the matter proceeds.
[30] It is acknowledged that the process of having to respond to an unfair dismissal
application itself creates some prejudice to the former employer. However the consideration
of the Commission in relation to this criterion is a consideration as to prejudice beyond this
usual requirement of having to respond to the claim. The presumption is that in the event an
employer claims that there will be prejudice arising from the extension of time, the employer
must produce evidence to demonstrate prejudice. In the event that such evidence is brought
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forward, the employee would then need to demonstrate that the facts as shown by the former
employer do not amount to prejudice.7
[31] In relation to this matter, Macfarlane Generators submits that the need to respond to
two forms of applications, firstly the General Protections application and secondly the unfair
dismissal application means that they have been put to the additional time and expense
connected with those responses. However these submissions are general, and there is no
evidence before the Commission that there would be undue further prejudice to the former
employer if an extension of time is to be granted in relation to this matter.
5. The merits of the application
[32] 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.
[33] On the one hand, Mr Smith alleges that he was subjected to unreasonable behaviour on
the part of a number of people within Macfarlane Generators, and on the other his former
employer argues that he was a poorly performing employee who received warning about his
performance. The company’s letter terminating Mr Smith refers to the reason for his
termination being his “blatant refusal to follow the reasonable instructions of management”.
[34] The dismissal letter provides short particulars about the allegation of poor
performance, which are then expanded upon in three witness statements provided to the
Commission in these proceedings,8 but which have not been the subject of any testing so far.
Mr Smith argues through his untested witness statement,9 that he faced significant pressures
which he did his best to meet and that he was the subject of harassment and bullying.
[35] In relation to the Commission’s consideration of the merits of an application when
undertaking an analysis of whether an extension of time for the filing of an unfair dismissal
application should be granted, 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. Instead the Commission’s consideration of this question is to ascertain
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.10
[36] In considering Mr Smith’s application, I am satisfied that there is at least an arguable
case on his behalf, while noting that the case is as yet untested and that Macfarlane Generators
strenuously opposes the construction of circumstances that Mr Smith would put forward,
instead seeking the Commission prefer a construction of a person who was dismissed for poor
performance following a considerable history of performance management, including the
issuing of one or more warnings.
7 Jervis v Coffey Engineering Group Pty Limited (AIRCFB, 2003) PR927201, at [16]
8 Exhibit R2, Exhibit R3 and Exhibit R4
9 Exhibit A1
10 Haining v Deputy President Drake (1998) 87 FCR 248, p.250
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[37] I consider this factor to overall be a neutral one, inasmuch as there are merits on either
side however clearly those merits require significant testing including through oral evidence
and it is possible that on the presentation of such oral evidence the merits might resolve in
either direction.
6. Fairness as between the person and other persons in a similar position
[38] 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 are
currently before the Commission, or have been decided in the past.11
[39] In applying Mr Smith’s facts to this criterion, there was a process of inquiry or dispute
on the part of Mr Smith, which included him taking steps to research his rights and the
alternative measures that could be taken. In addition, he commenced within the statutory time
period a General Protections application against his former employer. Finally, he made a
prompt change to the form of application he had elected to take once he had information that
the initial application may not suit his purposes. In the alternative, Macfarlane Generators put
forward that Mr Smith has changed his mind and that it would be unfair to other employers
responding to applications to allow such to be done.
[40] Both considerations have merit and, as a result, I consider this to be a neutral factor in
this case.
[41] Taking into account all relevant factors, I consider that there is an element of diligence
on the part of Mr Smith which demonstrates that he wished to challenge his dismissal from an
early point after the date that the dismissal took effect. More particularly, the evidence
demonstrates that within two weeks of the dismissal he had elected to commence a General
Protections application which, at the time, he thought would give the appropriate opportunity
to him to, in effect, hold Macfarlane Generators to account and to properly exercise his rights.
[42] This is not a circumstance where there was ignorance of the time limit the making of
an application; in fact the evidence indicates an acute awareness of the 21 day time-limit, at
least to the making of the initial General Protections application.
[43] Instead this is a situation where Mr Smith plainly had significant uncertainty as to how
best to exercise his rights and, to some extent, most probably continues to have such
uncertainty.
[44] He chose the vehicle of a General Protections application; made the application within
the statutory period; and substituted a General Protections application for unfair dismissal
application having learned more about what might occur and what was best for his
circumstances.
[45] While, of course this gives rise to the challenge of indecisiveness on the part of the
Applicant, a careful analysis of the claims themselves would indicate there is sufficient
similarity between their core content to form the view that Mr Smith’s indecisiveness went to
11 Wilson v Woolworths [2010] FWA 2480, [24]‒[29]
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the form in which he should challenge his dismissal rather than what he would challenge
about.
[46] In all, it is my view that this matter is somewhat finely balanced, with it being moved
into Mr Smith’s favour for the reason that there is a demonstration of a desire, and somewhat
strongly, on his part to challenge his dismissal from an early point. The evidence shows that
he was acutely aware of the statutory time limit and wanted to ensure that he met it.
[47] The exceptional circumstance in this particular case is that he got wrong the means by
which he initially chose to challenge his dismissal. Without the demonstration of a desire
from an early point to challenge his dismissal I would not be satisfied there were exceptional
circumstances for the granting of an additional period for the making of an unfair dismissal
application.
[48] For these reasons, I will grant an extension of time pursuant to s394 of the Fair Work
Act and will issue an order at the same time as these reasons for decision extending the time
period for Mr Smith to make an application for unfair dismissal remedy.
COMMISSIONER
Appearances:
Ms S Kane, paid agent for Mr J Smith
Mr R Williams and Ms N Howells-Schramm, Victorian Employers’ Chamber of Commerce
and Industry for Macfarlane Generators Pty Ltd
Hearing details:
2015.
Melbourne:
23 January
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