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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr James Morphett
v
Pearcedale Egg Farm
(U2015/14973)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 23 DECEMBER 2015
Application for relief from unfair dismissal; application made outside of time prescribed;
whether there are exceptional circumstances; whether discretion to extend should be
exercised; extension of time granted.
[1] This is an edited version of the decision delivered ex tempore and recorded in
transcript on 18 December 2015. Mr James Morphett (Applicant) commenced employment
with Pearcedale Egg Farm (Respondent) on or about 24 June 2014. He was employed to
undertake general maintenance duties with the Respondent. Following discussions with the
parties it is apparent that although the letter of termination issued to the Applicant was dated
19 October 2015, that the termination of employment did not take effect until 20 October
2015 and on that day the Applicant was advised by text message that his employment had
been terminated.
[2] The Applicant subsequently received the letter of termination, which as I have
indicated is dated 19 October 2015. The reasons that have been given by the Respondent for
its decision to terminate the Applicant's employment concern an incident which occurred on
or about 12 October 2015, during which it is said the Applicant made threats of violence
towards Mr Monnier, the Respondent's General Manager.
[3] It is said that after obtaining legal advice the Respondent decided to terminate the
Applicant’s employment for serious misconduct arising from his conduct during the meeting
on 12 October 2015. The Applicant lodged an application for an unfair dismissal remedy
under s.394 of the Fair Work Act 2009 (Act) on 11 November 2015. Applications for an
unfair dismissal remedy must be made within 21 days after the dismissal took effect.
[4] Based on the termination date being 20 October 2015, the application should have
been lodged by no later than 10 November 2015. The application was therefore lodged
outside the time prescribed and it was effectively made one day after the last day on which it
should have been made. The Act allows the Fair Work Commission (Commission) to consider
extending the period within which applications for an unfair dismissal remedy may be made,
but only if first satisfied that there are exceptional circumstances.
[2015] FWC 8885
REASONS FOR EX TEMPORE DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 8885
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[5] Before I deal with the evidentiary matters as contained in the documents that have
been filed by the parties, I just need to say a few things about the principles that are to be
applied in considering whether I should exercise my discretion to extend the time. As is
evident of the text of s.394 of the Act, the statute allows me to allow a further period in which
an application may be made but that discretion will only be exercise if I am first satisfied that
there are exceptional circumstances which warrant the exercise of my discretion.
[6] Subsection (3) of s.394 of the Act sets out the matters which must be taken into
account in assessing whether or not there are exceptional circumstances, and these are:
the reason for the delay;
whether the Applicant first became aware of the dismissal the day it took effect;
any action taken by the Applicant to dispute the dismissal;
any prejudice that the Respondent may suffer, including any prejudice caused by the
delay; and
the merits of the application; and
fairness as between the Applicant and other persons in a similar position.
[7] It is clear from the structure of s.394(3) that each of these matters need to be taken into
account in assessing whether or not there are exceptional circumstances. Individual matters
might not, when viewed in isolation, be particularly significant, so it is necessary to consider
not only the matters individually but the matters collectively, and ask whether collectively
those matters establish exceptional circumstances.
[8] ‘Exceptional circumstances’ are not defined in the Act, however, ‘exceptional
circumstances’ are circumstances that are out of the ordinary course, unusual, special or
uncommon. But the circumstances do not need to be unique or unprecedented. Nor do they
need to be very rare. I will turn now to deal with the statutory considerations, beginning with
the reason for the delay.
[9] When considering the explanation for the delay or the reason for the delay, the
explanation needs to be a credible or acceptable explanation, and it needs to be an acceptable
explanation for the whole of the period of the delay. In this case, it is clear on the evidence
that the Applicant endeavoured to lodge an application through the e-filing mechanism on 6
November 2015. On that day, the Applicant filed an email to which was attached the letter of
termination.
[10] It is apparent from the materials that the Applicant completed an unfair dismissal
application, and that he had signed that Application on 6 November 2015. He received from
the Commission, a document which acknowledged that certain documents had been
dispatched to the Commission but as is clear from the email to the Applicant from the
Commission on 6 November 2015, that document was not an acknowledgment that the
documents that he was attempting to file were accepted as filed in the Commission.
[2015] FWC 8885
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[11] The document tells the Applicant that the materials he endeavoured to file would be
reviewed for compliance with the rules, and that he would be advised as soon as possible
whether his application had been filed or whether there was some anomaly in the materials
that were filed. As things transpired, on 6 November 2015 the Applicant only successfully
filed the letter of termination that he had received from the Respondent.
[12] On or about 9 November 2015, the Applicant received a telephone call from a staff
member within the Commission Registry, during which he was told that he had been
unsuccessful in filing his application using the e-filing mechanism and that he would need to
re-file in order to successfully make an application. It is apparent that the Applicant was not
told on 9 November 2015 that he could lodge his application by telephone.
[13] Telephone lodgement is a mechanism that is provided for under the rules of the
Commission. The Applicant's uncontested assertion is that he could not lodge his application
electronically from home because his scanner was not working and he was unable to arrange
to attend a friend's premises to use that person's equipment until 11 November 2015. On 11
November 2015, the Applicant successfully lodged his application and it is recorded as
having been lodged at 1.17pm on 11 November 2015.
[14] Applicant’s bear the responsibility of lodging applications correctly and within time.
And, in normal circumstances there is no particular obligation on the Commission to provide
advice to applicants about lodging their applications. However, it seems to me that it will
have been apparent that from the letter of termination that had been received by the
Commission on the 6th, that when a Registry staff member had a conversation with the
Applicant on 9 November 2015, the Applicant was either then out of time or just within the
timeframe for lodging an application.
[15] It would in those circumstances, have been prudent to have advised the Applicant that
he could have then and there made an application by telephone. Had that occurred, the current
proceeding would be unnecessary. As things transpired and for the reasons given by the
Applicant, he was unable to lodge his application until 11 November 2015. I am satisfied that
had the Applicant lodged his application through the post it would not have been received any
earlier than 11 November 2015 once he became aware that his first attempt at lodging the
application was unsuccessful.
[16] In those circumstances, I am satisfied that there is an acceptable explanation for the
delay and in those circumstances that is a matter that weighs in favour of the Applicant in this
case.
[17] As to the question of whether the Applicant became aware of his dismissal after the
date it took effect, given that it is now common ground that the Applicant was dismissed with
effect on 20 October 2015, and that he was advised of his dismissal on that day, then it is
clear that the Applicant had been notified of his dismissal on the day that it took effect, and
that he, therefore, had the full benefit of the 21 day time period within which to lodge his
application.
[18] I note and accept that the Applicant sought legal advice but that is not an unusual
occurrence in this jurisdiction. It is incumbent on the Applicant to take steps at the earliest
possible opportunity if he or she wishes to pursue their rights. In the circumstances, that the
[2015] FWC 8885
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Applicant received notice of his termination on the day it took effect, I consider that is a
factor that weighs against the Applicant.
[19] Turning then to the question of any steps that the Applicant took to dispute his
dismissal, the Applicant says that apart from lodging the unfair dismissal application, he
endeavoured to contact the employer after the date of termination to discuss his dismissal but
was told that he should communicate with the Respondent's lawyers. I am satisfied that he at
least took some step to dispute his dismissal other than by making this application, and in
those circumstances that is a matter that weighs slightly in favour of the Applicant in this
case.
[20] As to the question of prejudice, the mere absence of prejudice is not necessarily a
factor that weighs in favour of the grant of an application for an extension of time. In this
case, Mr Monnier for the Respondent indicated that the employer would not suffer any
prejudice, and I think that that is a proper concession to make given the application was
lodged only one day outside of the time prescribed.
[21] The persons who will be critical to establishing the circumstances of the incident
which led to the dismissal of the Applicant are and will be available to give evidence should
the matter proceed to hearing. In these circumstances, the absence of prejudice is a neutral
factor in my evaluation.
[22] As to the merits of the case, the allegation of misconduct, as I have indicated earlier,
concerns an incident that occurred on or about 12 October 2015.
[23] It is alleged that the Applicant made threats of physical violence towards Mr Monnier.
Mr Monnier said he will give evidence about that altercation and what occurred, and also
stated that there was another witness who was present during the altercation. The Applicant
says that he recorded the meeting on his telephone.
[24] The question whether the recording, which apparently was made without consent may
be admitted in evidence, is a matter that will need to be resolved at some later stage. It should
not be assumed by the Applicant that the recording will necessarily be admitted into evidence
given that it may have been obtained in contravention of the Surveillance Devices Act 1999
(Victoria). But on the assumption that it is admitted into evidence, the parties can deal with
the veracity of the recording of the conversation and a decision maker will ultimately have to
make a judgment about the weight that is attached to that telephone recording.
[25] In further evaluating this matter consideration will need to be given to whether the
employer complied with the Small Business Fair Dismissal Code. That is a further
jurisdictional matter that will need to be resolved at another stage, but simply stated, if the
employer believed on reasonable grounds that it was justified in dismissing the Applicant
summarily, then it will have complied with the Small Business Fair Dismissal Code even if
the conduct itself did not occur precisely in the manner as is alleged currently by the
Respondent.
[26] Ultimately, in applications of this kind it is not practical for me to test the evidence as
it would be tested in a full hearing. And so the evaluation that I can make is only a very
preliminary one, and I generally take the view that I should look at the Applicant's case at its
highest, and determine whether or not there is at least a case that is not without merit.
[2015] FWC 8885
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[27] Given the disputed accounts of what occurred, it seems to me that the question of
whether the dismissal complied with the Small Business Fair Dismissal Code, and if it did
not, whether or not the dismissal was harsh, unjust or unreasonable, really turns on what
happened at the meeting on 12 October 2015. And, I am satisfied on the material before me
that there is at least an arguable case that the Applicant has to advance.
[28] Therefore, on the question of merit, I am satisfied that the Applicant’s claim is not
without merit, and in those circumstances the merits of the case weigh slightly in favour of
the Applicant. Neither party should take from what I have said that the Applicant will succeed
or that I believe that ultimately there will be a finding in his favour. It is simply a very
preliminary judgment based on the limited material that I have before me.
[29] Turning to the question of fairness as between the Applicant and other persons in a
similar position, cases of this kind will generally turn on their own facts. However, this
consideration is concerned with the importance of an application of consistent principles in
cases of this kind, thus ensuring fairness as between the Applicant and other persons in a
similar position, and that consideration may relate to matters currently before the Commission
or matters which had been previously decided by the Commission.
[30] Neither party highlighted any particular matter which would be relevant nor am I
aware of any particular matter currently before the Commission, or cases decided previously
by the Commission which might have a bearing on this consideration. I therefore consider
that this consideration is a neutral one in this case.
[31] Statutory time limits that apply to the exercise of a person's right to bring an unfair
dismissal remedy application are an expression of the parliament's intention that rights to
dispute a dismissal should be exercised promptly. Time limits seek to balance two competing
interests. On the one hand, the right to bring an action; on the other, an employer's right to be
certain that once a particular time period has passed, that actions that they have previously
taken will not be subject to dispute.
[32] It is for this reason that the parliament has determined that 21 days is the appropriate
time limit within which applications of this kind should be brought. However, the parliament
also recognises that there might, in particular circumstances be exceptional circumstances
which would warrant the consideration of the exercise of a discretion to extend the time
period.
[33] So, in summary, a person who wants relief from an unfair dismissal, needs to act
promptly, but there will be occasion where a delay will nonetheless not be fatal if in all of the
circumstances, the circumstances for the delay, and having regard to the merits of the
application, there are exceptional circumstances. Taking all the matters into account I am
satisfied on balance that there are exceptional circumstances in this case.
[34] I am particularly influenced by the reason for the delay and the Applicant’s clear
attempts to lodge his application within time, and his unfortunate failure to do so. It was also
unfortunate that the weekend intervened between the 6th and the 9th of November 2015, the
absence of which might have also precipitated a more prompt lodgement of the application. It
is unfortunate also in this case that given that the Applicant was so close to the time expiring
that he was not advised by the Registry staff that he could make an application by telephone.
[2015] FWC 8885
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[35] The other matters either weigh slightly in favour of the Applicant or are neutral, save
that the question of when he was notified of his dismissal weighs against him. I am not aware
of any other discretionary consideration which would weigh against the exercise of my
discretion to extend the time, so I propose to allow the Applicant an extension so that the
period within which Mr Morphett can make his application is extended to 11 November 2015.
Consequently, a valid application has been made.
[36] An order giving effect to this decision has been issued separately in PR575247.
DEPUTY PRESIDENT
Appearances:
Mr J Morphett for the Applicant.
Mr C Monnier for the Respondent.
Hearing details:
Melbourne.
2015.
December 18.
Printed by authority of the Commonwealth Government Printer
Price code A, PR575376
WORK COMMISSION THE SEAL OF
