1
Fair Work Act 2009
s.394—Unfair dismissal
Ivan Whittle
v
Redi Milk Australia Pty Ltd
(U2016/6767)
COMMISSIONER RYAN MELBOURNE, 14 JUNE 2016
Application for relief from unfair dismissal - extension of time refused – application
dismissed.
[1] Mr Whittle lodged an application pursuant to s.394 of the Fair Work Act 2009 (the
Act) for a remedy for unfair dismissal. The application was lodged by Express Post and was
received by the Fair Work Commission on 6 May 2016.
[2] Mr Whittle was dismissed from his employment on 11 March 2016 and says that he
was not notified of his dismissal until he received his termination letter in the mail on or
around 17 March 2016. For the purpose of s.394(2) I am prepared to accept that Mr Whittle’s
dismissal took effect on 17 March 2016.
[3] Mr Whittle had until midnight on 7 April 2016 to lodge an unfair dismissal
application. Mr Whittle’s unfair dismissal application was filed outside the 21 day time limit
provided for in the Act.
[4] The Respondent opposes the grant of an extension of time.
[5] The Respondent’s representative, Mr Barkatsas of the Victorian Chamber of
Commerce and Industry, requested the determination of an extension of time occur on the
papers. Mr Whittle consented to that course and was given a further opportunity to file any
response submissions.
Legislation
[6] Section 394(3) permits the Fair Work Commission to extend the 21 day time period in
in the Act subject to the Commission being satisfied that there are exceptional circumstances
taking into account each of the relevant matters enumerated in s.394(3).
“394(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:
[2016] FWC 3773
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 3773
2
(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.”
[7] Mr Whittle’s submissions advanced in support of being granted an extension of time
appear to address two of the criterion: the reason for the delay and whether the person first
became aware of the dismissal after it had taken effect. His submissions can be summarised
as:
at the time of dismissal he was under medical certificates and/or was on
WorkCover resulting from an injury sustained at work;
he was not notified of his dismissal until several days after he was terminated.
Section 394(3)(a) - The reason for the delay
[8] The time period I must take into consideration when assessing the reason for delay is
the period between the expiration of the 21 day time period and the actual date of lodgement
of the application, which period is from 8 April 2016 to 6 May 2016.
[9] Mr Whittle provided several medical certificates to the Commission in support of his
reason for delay. Significantly, he was certified by a doctor to have capacity for suitable
employment from 31 March 2016.
[10] The Respondent’s submissions address this criterion as follows:
“12. ….the medical certificates provided to the Commission fall well short of
establishing anything out of the ordinary course, or unusual, or special, or uncommon.
….. Nor does it suggest incapacity to take any action in respect of his dismissal in the
35 days between the dismissal and the lodgement.
…
17. In circumstances where a doctor – as early as 31 March 2016 - has certified the
Applicant has the physical capacity suitable for employment, subject to a restriction of
not lifting weight from the left hand/shoulder of greater than 1kg, and without any
mental health function issues, it is simply unsustainable that he lacked the capacity to
lodge his unfair dismissal claim during this time.
…
19. Even if the medical certificates are accepted as evidence of total incapacity (which
is denied), there is no evidence of incapacity for the entire period of the delay. There is
[2016] FWC 3773
3
no evidence of total incapacity after the expiration of the 21 day period (1 April
2016).”
[11] I accept the submissions of the Respondent and find that Mr Whittle has not proven
that his delay in lodging his application was caused by him being incapacitated to an extent
which prevented him from completing and lodging an unfair dismissal application.
Section 394(3)(b) – Whether the person first became aware of the dismissal after it had
taken effect
[12] Mr Whittle’s second submission is that he was not notified of his dismissal until
several days after the termination took effect, when he received by registered mail the
termination letter on or around 17 March 2016.
[13] As Mr Whittle first became aware of his dismissal on the day that the dismissal took
effect, ie 17 March 2016, this criterion does not weigh in favour of finding that exceptional
circumstances exist.
[14] I accept the Respondent’s submissions and find that this criterion does not weigh in
favour of finding that exceptional circumstances exist.
Section 394(3)(c) – Any action taken by the person to dispute the dismissal
[15] There is nothing before the Commission that suggests that Mr Whittle took any action
to dispute his dismissal and therefore this criterion does not weigh in favour of of finding that
exceptional circumstances exist.
Section 394(3)(d) – Prejudice to the employer (including prejudice caused by the delay)
[16] The Respondent submitted that a delay of 35 days as occurred in this matter is a long
delay and that such a delay gives rise to a general presumption of prejudice1. I find that there
is prejudice to the Respondent due to the length of the delay in this matter which does not
support an extension of time.
Section 394(3)(e) - The merits of the application
[17] An application for an extension of time is not the occasion for the Commission to
consider the merits of the case.2 A highly meritorious claim may persuade a decision-maker to
accept an explanation for delay that would otherwise have been insufficient.3
[18] Both Mr Whittle and the Respondent have made general submissions as to the merits
of the substantive application. The Respondent submitted:
“31. ….the Applicant was dismissed after abandoning his employment without
reasonable excuse and failing to communicate with the Respondent for numerous days
regarding his whereabouts or his intentions to return to work. His last day present at
the workplace was 2 March 2016. The Respondent sent him a letter to his address on
file on 9 March 2016 requesting he contact the Respondent immediately by 11 March
2016 (as there had been no contact since 2 March 2016). When the Applicant failed to
[2016] FWC 3773
4
make contact, the Respondent considered he had abandoned employment as of 11
March 2016 and duly sent the letter to his address on file.
32. The Respondent first heard from the Applicant again on 24 March 2016, when he
rang the office querying his pay. The Respondent also understands the Applicant
changed his contact number four times from 2 March 2016 onwards.”
[19] Mr Whittle submitted that he provided medical certificates to the Applicant by way of
text messages which accounted for his absence from work and that at the time that the
Respondent alleges it was trying to contact him that he was experiencing a very nasty
separation from his partner and was forced to change his mobile number approximately 5
times in one week.
[20] It is obvious that the proposition that Mr Whittle abandoned his employment is a
contested matter and that further evidence needs to be put from both sides before any findings
could be made.
[21] Accordingly, as I am not able to make a final assessment of the merits as there are
factual disputes between the parties that have not been tested, I find this criterion to be
neutral.
Section 394(3) (f) fairness as between the person and other persons in a similar position.
[22] The Respondent’s submissions address this criterion as follows:
“36. In considering an application for an extension of time for a s.365 application in
Dain v Bradley & Grant17 (“Dain”), Deputy President Booth noted it is important to
appreciate the purpose of limitation periods such as that contained in the Act and it is
referred to the decision of McHugh J in Brisbane South Regional Health Authority v
Taylor where His Honour stated:
“The discretion to extend should therefore be seen as requiring the applicant to
show that his or her case is a justifiable exception to the rule that the welfare of
the State is best served by the limitation period in question. Accordingly, when
an applicant seeks an extension of time to commence an action after a
limitation period has expired, he or she has the positive burden of
demonstrating that the justice of the case requires that extension.”
37. The Applicant has not met his positive burden in demonstrating that his case is a
justifiable exception to the rule by failing to provide a reason which demonstrates his
reason for late lodgement was “unusual, or special, or uncommon”.
38. In Morphett v Pearcedale Egg Farm,Deputy President Gostencnik considered this
criterion and stated:
“…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
[2016] FWC 3773
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matters currently before the Commission or matters which had been previously
decided by the Commission.”
39. Allowing the Application to proceed would not be fair to the Respondent and
would be unfair to those in a similar position to the Applicant whose applications have
(rightly) been dismissed due to a lack of exceptional circumstances.” [citations
omitted]
[23] The Respondent’s contentions miss the point of s.394(3)(a).
[24] To the extent that the Respondent relies on the decision of Booth DP in Dain v
Bradley the Respondent has misquoted the decision. The extract relied on by the Respondent
had nothing to do with considering fairness as between the applicant and other persons in
similar position.
[25] What Booth DP said on that issue was:
“e) fairness as between the person and other persons in a like position
[56] A comparison between Mr Dain and other persons is not relevant in this
matter. It has not been submitted by either party that there are other persons in a like
position to Mr Dain. Comparative fairness was addressed in Ballarat Truck Centre Pty
Ltd v Melissa Kerr where the Full Bench said:
‘It appears to be clear that s.366(2)(e) of the Act should be limited to a
comparison of persons who have also had their employment terminated and are
thus capable of lodging a s.365 application. A time limit for the lodgement of
an application under Part 3-1 of the Act is only provided for with respect to
s.365 applications. The Act imposes no time constraints on other applications
available under Part 3-1. It follows that the consideration stipulated in
s.366(2)(e) of the Act requires a comparison between people who are capable
of bringing a s.365 application. Further, as Mr Follett submitted, if s.366(2)(e)
allowed for a comparison to a person who had not been dismissed, then, as the
Act imposes no time constraints on other applications under Part 3-1, that
comparison would always produce comparative unfairness and it could hardly
be seen to be indicative of whether there are exceptional circumstances for
which a further period of time could be granted.’
[57] There is no contribution one way or the other to the exercise of my discretion in
his favour from these circumstances.”
[26] To the extent that the Respondent relies on the decision of Gostencnik in Morphett v
Pearcedale Egg Farm the Respondent pays insufficient attention to the fact that the decision
was given ex tempore. What Gostencnik DP had to say about s.394(3)(f) was as follows:
“[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
[2016] FWC 3773
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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.”
[27] The decisions of each of Booth DP and Gostencnik DP need to be considered in light
of the purpose of s.394(3)(f).
[28] The Explanatory Memorandum to the Fair Work Act 2009 says of s.394(3):
“1572. Subclause 394(2) provides that an application must be made within seven days
of a dismissal taking effect. However, FWA has discretion to extend the timeframe for
making an unfair dismissal application if it is satisfied that there are exceptional
circumstances.
1573. This discretion must be exercised in accordance with subclause 394(3), which
provides an exhaustive list of the factors FWA must take into account when
determining if there are exceptional circumstances. These factors are based on the
principles set down by the Industrial Relations Court of Australia in Brodie-Hanns v
MTV Publishing Ltd (1995) 67 IR 298.”
[29] In Brodie-Hanns v MTV Publishing Ltd (Brodie-Hanns) Marshall J said:
“Principles for extension of time
The relevant principles which should govern the Court’s discretion to extend the time
within which an application under s 170EA of the Act may be lodged are set out in the
decisions of Keely J in Transport Workers Union of Australia v National Dairies Ltd
(No 2) (1994) 57 IR 186 and Beazley J in Turner v K & J Trucks Coffs Harbour Pty
Ltd (1995) 61 IR 412. In each case the Court applied the tests referred to by Wilcox J
in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349.
I agree, with respect, that those principles are appropriate to be applied in the
circumstances of this matter.
Briefly stated the principles are:
1. Special circumstances are not necessary but the Court must be positively
satisfied that the prescribed period should be extended. The prima facie
position is that the time limit should be complied with unless there is an
acceptable explanation of the delay which makes it equitable to so extend.
2. Action 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.
[2016] FWC 3773
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3. Prejudice to the respondent including prejudice caused by delay will go against
the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to
grant an extension of time.
5. The merits of the substantive application may be taken into account in
determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like
position are relevant to the exercise of the Court’s discretion.”
[30] As Marshall J made very clear the principles weren’t his, they were a restatement of
early decisions and in particular they were based on the tests referred to by Wilcox J in
Hunter Valley Developmnets v Cohen. In that case Wilcox J introduced the principles with the
following comment:
“17. Section 11 of the Administrative Decisions (Judicial Review) Act does not set out
any criteria by reference to which the Court's decision to extend time for an application
for review under s.5 is to be exercised. Already there have been a number of decisions
of Judges of this Court, all sitting at first instance, dealing with the approach proper to
be taken. They differ a little, both in language and in emphasis, but I venture to suggest
that from them may be distilled the following principles to guide, not in any exhaustive
manner, the exercise of the Court's discretion:
[31] In subsequent paragraphs Wilcox J enumerated the principles including:
“23. (f) Considerations of fairness as between the applicants and other persons
otherwise in a like position are relevant to the manner of exercise of the Court's
discretion: Wedesweiller at pp 534-535.”
[32] In turn the decision of Sheppard J in Wedesweiller and others v Cole and others4 dealt
very specifically with an extension of time application which had to consider fairness as
between the applicants and other persons otherwise in a like position. In Wedesweiller some
153 applicants filed applications in the Court nearly a year out of time. The 153 applicants
were substantially in the same position as another 190 applicants who had filed their
applications to the Court in time. Sheppard J said:
“Ordinarily one might regard an application for extension of time made almost twelve
months after the expiry of the prescribed time as being too late, particularly where the
prescribed period is as short as 28 days. That is the view I think I would have had in
relation to these applications were it not for the fact that there are pending for hearing
in the Court's list approximately 190 similar applications all arising out of similar
incidents to those complained of by these applicants. It is that circumstance which,
according to the submission of senior counsel, makes this case different from others.
Furthermore, as a matter of fairness amongst employees in similar situations it is only
right, in his submission, that these applicants be allowed to proceed. He further
submitted that no real prejudice was shown by the respondents, not forgetting the
difficulties they may have in obtaining evidence as mentioned by Mr. Cassin. Certainly
[2016] FWC 3773
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there was not here any administrative reason or reason not associated with the direct
interests of the parties which ought to dissuade me from granting the extension which
is sought.
Senior counsel for the respondents submitted that the period of 11 months was far too
long. He said that there seemed no reason why there could not have been at least some
general and earlier warning from the applicants' solicitors that these applications were
in train. So far as they were concerned the matter was past and was better left where it
was. He also drew attention to the fact that there was no direct evidence from any
applicant explaining the delay or deposing to facts from which one could make a
judgment as to the possibility or probability of a successful challenge to the decisions
which are sought to be reviewed.
I have weighed these various considerations with some anxiety. I confess to not having
found the matter easy of resolution but in all the circumstances I have reached the
conclusion that on balance the applications should be granted.”
[33] The Commissions own Unfair Dismissals Benchbook says of s.394(3)(f):
“Fairness as between the person and other persons in a similar position
This consideration may relate to fairness in matters of a similar kind that:
• are currently before the Commission, or
• have been decided in the past.”
[34] In support of the proposition that s.394(3)(f) may relate to matters of similar kind that
have been decided in the past the Benchbook cites the decision of Richards SDP in Wilson v
Woolworths5 in which he said:
“[24] Finally, as to the matter of the fairness between the Applicant, the person and
any other persons in a like position, I not aware of any claim being made that suggests
any similarity with the circumstances relevant to this applicant.
[25] It is not abundantly clear to me as to how s.366(2)(e) of the FW Act operates
as a guiding principle to which I need to take into account. The origins of that
principle appear to often to emanate from the decision of Wilcox J in Hunter Valley
Developments Pty Ltd and Ors v. Cohen (1984) 58 ALR 305.
[26] That judgment, as I have read it, in fact is referable to another decision, that is
the decision of Sheppard J in Wedesweiller and Others v Robert William Cole and
Others (1983) 47 ALR 528. In that judgment (cited in the Australian Law Reports at
pages 534 and to a limited extent at 535) Sheppard J provides for a discussion of a
particular set of circumstances in which there were approximately 190 similar
applications before the Federal Court of Australia at that particular time of which one
of the 190 applications concerned the Applicant who was directly before Sheppard J. It
is from that discussion of that particular set of circumstances, it appears as though a
principle emanated that there was a necessity to consider the fairness amongst
employees in similar situations as being a proper matter of consideration.
[2016] FWC 3773
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[27] From that case, it further appears the matter was then associated with the
reasoning of Wilcox J in Hunter Valley Developments Pty Ltd and Ors v. Cohen (as
cited above), though it is not entirely evident it was applied in his reasoning in the
particulars before him.
[28] Nonetheless, the principle as it was then eventually appears to have been
imported into the summary reasoning of Marshall J in Brodie-Hanns v MTV
Publishing Ltd (1995) 67 IR 298. The Brodie-Hanns judgment, in respect of its
consideration of that particular principle, seems to have approached the principle in
relation to whether or not the court adopts a uniform approach to matters of a similar
kind.
[29] It is not therefore entirely clear as to whether or not the so-called principle is
operative in relation to the approach to matters of a similar kind that are currently
before the court or the tribunal or whether the court or the tribunal is to consider how,
in some general sense, similar matters have been approached historically.”
[35] The language used in s.394(3)(f) is identical in effect to the language used by
Sheppard J in Wedesweiller in describing the position put to him by senior counsel for the
applicants and which he accepted:
“Furthermore, as a matter of fairness amongst employees in similar situations it is only
right, in his submission, that these applicants be allowed to proceed.”
[36] It would appear to be consistent with the principles set down in Brodie-Hanns that the
matter of fairness as between the person and other persons in a similar position should be
approached on the basis that “similar position” relates to the same employer and to the same
underlying issue.
[37] There is nothing in Brodie-Hanns or in Hunter Valley Developments which would
suggest that the Court was approaching the principle of “fairness as between the person and
other persons in a similar position” in any manner inconsistent with that adopted by Sheppard
J in Wedesweiller.
[38] Having said that, it is clear then that the timing of applications to the Commission is
not the key issue. What is the key issue is that the applicant seeking an extension of time is
considered in relation to other applicants employed by the same employer and affected by the
same issue who filed applications in time.
[39] The possibility suggested by Richards SDP in Wilson v Woolworths at [29] that
“fairness as between the person and other persons in a similar position” could permit or
require the Commission “to consider how, in a general sense, similar matters have been
approached historically” is a very significant departure from the principle extracted from
Wedesweiller. The possibility suggested by Richards SDP appears to be a completely new
principle and not something contemplated by Brodie-Hanns. Until a Full Bench says that
s.394(3)(f) is not to be applied consistent with the approach adopted by Sheppard J in
Wedesweiller, it would appear that s.394(3)(f) has a very limited scope of operation.
[2016] FWC 3773
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[40] In the present matter there are no other persons in a similar position to the Applicant
and therefore this criterion is not relevant.
Conclusion
[41] Having taken into account each of the relevant matters in s.394(3) I am not satisfied
that any or all or any combination of them gives rise to exceptional circumstances which
would warrant the granting of an extension of time.
[42] The application for an unfair dismissal remedy in this matter was not filed within the
time specified by s.394(2)(a) and therefore the application is dismissed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code C, PR581449
1 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.
2 Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000)
Print T2421 [14].
3 Haining v Deputy President Drake (1998) 87 FCR 248, 250.
4 [1983] FCA 94.
5 [2010] FWA 2480.
THE FAIR WORK COMMISSION HE SEALO
