1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ricky King
v
Gourmet Beef Pty Ltd
(U2017/5252)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 4 AUGUST 2017
Application for an unfair dismissal remedy; application made outside of the time prescribed;
application lodged in wrong jurisdiction; whether there are exceptional circumstances;
whether discretion to allow a further period within which application may be made should be
exercised; extension of time refused; application dismissed.
Introduction
[1] Mr Ricky King (Applicant) commenced employment with Gourmet Beef Pty Ltd
(Respondent) as a full time employee on or about 1 July 20141. At the time of his dismissal he
was employed in the position of an Apprentice Butcher.2 On 29 November 2016, the
Applicant tendered a written resignation from his employment. The Applicant and
Respondent agreed that the Applicant’s last day of employment with the Respondent would
be 8 December 2016.3
[2] On 9 December 2016, the Applicant filed an application in the Western Australian
Industrial Relations Commission (WAIRC) asserting that he was employed, and harshly,
oppressively or unfairly dismissed by “Brian McDonald and Russell Taylor, The Beef Shop”.
On 16 May 2017, the Applicant’s application was dismissed by Commissioner Matthews for
want of jurisdiction.4
[3] On 17 May 2017, the Applicant applied under s.394 of the Fair Work Act 2009 (Act)
for an unfair dismissal remedy.
[4] Applications for an unfair dismissal remedy must be made within 21 days after a
dismissal took effect or within such further period as the Fair Work Commission
(Commission) may allow. The Applicant’s employment ended on 8 December 2016, and so
an application for a remedy should have been lodged by no later than 29 December 2016. The
application was therefore lodged outside of the time prescribed. A further period within which
1 Transcript PN29.
2 Exhibit 1 at [1].
3 Transcript PN209 – PN210.
4 2017 WAIRC 00272.
[2017] FWC 3866
DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 3866
2
to make an application may be allowed if I am satisfied that there are exceptional
circumstances.
[5] Briefly, exceptional circumstances are circumstances that are out of the ordinary
course, unusual, special or uncommon but the circumstances themselves need not be unique
nor unprecedented, nor even very rare.
[6] The matters that I need to take into account in considering whether I am satisfied that
there are exceptional circumstances are:
the reason for the delay;
whether the Applicant first became aware of the dismissal after the date it took
effect;
any action taken by the Applicant to dispute the dismissal;
prejudice to the Respondent including prejudice caused by the delay;
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 the matters need to be taken into
account in assessing whether there are exceptional circumstances. The individual matters
might not, viewed in isolation, be particularly significant, so it is necessary to consider the
matters collectively and to ask whether collectively the matters show exceptional
circumstances.
Factual background
[8] As indicated above, the Applicant’s employment commenced on or about 1 July 2014.
At the time the Applicant commenced employment, the business in which the Applicant was
employed now operated by the Respondent, was operated by a different owner (former
employer).5 The Applicant was originally employed in the position of a meat packer.6 He was
employed on a full time basis to work initially Monday to Friday from 9.00am to 5.00pm and
Tuesday to Saturday from 9.00am to 5.00pm (on Tuesday – Friday), and 8.30am to 5.00pm
(on Saturday) in alternating weeks.7
[9] A few months after commencing employment, the Applicant began an apprenticeship
with the former employer, at which time the Applicant’s working hours were altered to
Monday to Friday, 7.00am to 3.00pm and Tuesday to Saturday, 7.00am to 3.00pm in
alternating weeks.8 The Applicant continued to work these hours until shortly before his
resignation.
[10] The business in which the Applicant was employed was purchased by the Respondent
on or around 1 October 2015.9 Mr Russell Taylor, Director of the Respondent gave evidence
that at the time of the purchase of the business he “called everyone together”10 and informed
5 Transcript PN47 – PN56.
6 Transcript PN38.
7 Transcript PN56 – PN59.
8 F3 Employer Response at q3.2 at [5], Transcript PN58 – PN74.
9 Transcript PN78 – PN79.
10 Transcript PN89.
[2017] FWC 3866
3
the employees verbally that the ownership of the business had changed and that he and Mr
Brian McDonald, were directors of the Respondent which now owned the business.11 The
Applicant’s evidence is that the meeting was informal and that the employees were told that
Mr McDonald and Mr Taylor were thinking of taking ownership of the business and that the
employees were told “there would be no changes to their employment conditions.”12
[11] After the business was purchased, the Applicant continued his apprenticeship with the
Respondent and continued working the full-time hours specified in [9] above.13 I am not
persuaded on the evidence that at the time the Respondent purchased the business in which
the Applicant was employed that it explained to the Applicant the “legal niceties” and
significance of the new owner’s corporate status. The absence of such an explanation in part
explains the Applicant’s application to the WAIRC.
[12] In early November 2016, the Respondent’s evidence is that the business’ requirements
changed and it consequently wanted to alter the Applicant’s working hours. Some discussions
took place between Mr McDonald and the Applicant in respect of the new arrangements.14
This does not appear to be in dispute.
[13] The Respondent says that it required the Applicant to work his original contracted
hours on the following alternating roster:
Week 1: Monday to Friday from 09.00am to 5.00pm; and
Week 2: Tuesday to Friday from 09.00am to 5.00pm and Saturday 08.30am to 5.00pm
[14] It is also not in dispute that sometime in November 2016, the Applicant was given
written notice from Mr McDonald of the change which was to occur. The Respondent says
that the Applicant was given notice of his rostered hours and confirmation that the variation
would take effect on 24 November 2016. The contents of the written notice is as follows:
“To Ricky King,
Your new Roster starts in 2 weeks from today 24-11-2016.
9am – 5pm tues – thurs
8.30am – 5pm sat
B McDonald”
[15] Mr Taylor’s evidence is that the written notice contained a mistake and that the
Respondent’s intention was for the Applicant to work on an alternating roster working
Monday to Friday 9.00am to 5.00pm and Tuesday to Friday from 9.00am to 5.00pm and
Saturday from 08.30am to 5.00pm.15 Mr Taylor’s evidence is that his business partner, Mr
11 Transcript PN83, PN95 – PN96.
12 Applicant’s Outline of Submissions dated 26 June 2017, page 5 at q.1i.
13 Transcript PN110 – PN118.
14 Transcript PN194.
15 Transcript PN121 – PN123, PN139.
[2017] FWC 3866
4
McDonald was dealing with the issue as he was on holidays at the time the written notice was
given to the Applicant.16 Mr McDonald did not attend the hearing to give evidence.
[16] The Applicant’s evidence is that Mr McDonald did not communicate to him that the
handwritten notice contained a mistake and maintains that the handwritten notice was the only
written information that was given to him.17 The Applicant maintains that he was of the
understanding that his hours were from Tuesday to Thursday from 9.00am to 5.00pm and
Saturday 08.30am to 5.00pm.18 The Applicant’s evidence was that his “hours were changing”
from full time to part time and that he “had no choice” but to resign.19 It is neither necessary
nor desirable to determine this controversy at this interlocutory stage where the parties have
not had the opportunity to advance their full evidential cases. It is sufficient to observe
however, that the resolution of this issue is likely to determine the issues about whether the
ending of employment was a termination at the employer’s initiative and the assessment of
the overall merits of the application.
[17] The Applicant’s evidence was that he understood that his working days changed from
five to four, essentially from a full-time employee to a part-time employee.20
[18] The Respondent points to an email it says was sent to the Applicant on 24 November
2016 following a conversation between Mr McDonald and the Applicant confirming the hours
of variation. The Applicant’s evidence is that on 25 November 2016, Mr McDonald asked
him whether he had received his email, to which the Applicant responded ‘no’.21 The
Applicant maintains that he did not receive the email of 24 November 2016. The email
contains the following:
“Ricky King,
Please be advised in regards to the convosation [sic] that was held on the 10/11/2016
between yourself and I, you [sic] new roster starts Tuesday 29/11/2016.
The hours you are required to work are now 9am-5pm.
You have had over two(2) weeks to organise day care, babysitters or someone to do
school pick up. I gave you this time to do so.
Please acknowledge my email with a response.
Kind Regards,
Brian McDonald
Director
The Beef Shop”
Whilst the email is marked as sent with a handwritten tick, there is no evidence that the email
was actually sent to the Applicant. Further, the Respondent did not produce any evidence of
the Applicant acknowledging receipt of the email. The text of the email and the hand written
16 Transcript PN140 – PN145.
17 Transcript PN152 – PN155.
18 Transcript PN161.
19 Transcript PN159.
20 Transcript PN162.
21 Transcript PN465.
[2017] FWC 3866
5
notice earlier referred to are clearly inconsistent. The question whether there was a dismissal
at the Respondent’s initiative will be significantly influenced by whether the email was sent to
and received by the Applicant. For the reasons given this is not a matter that I need to
determine.
[19] On 29 November 2016, the Applicant tendered his resignation. The Applicant’s
original resignation letter indicated that his last day of employment would be 15 December
2016. The date in the resignation letter was amended to now read 8 December 2016. It is not
in dispute that the Applicant and Mr McDonald agreed that the Applicant could finish his
employment with the Respondent on 8 December 2016.22 As I have already observed, the
Applicant alleges that he “had no other option then to resign” from his employment with the
Respondent, because of the alteration to his working hours.23
[20] On 9 December 2016, the Applicant made an application to the WAIRC pursuant to
s.29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (IR Act) that his employer “Brian
McDonald and Russell Taylor, The Beef Shop” harshly, oppressively or unfairly dismissed
him from employment.24 The form completed by the Applicant advises that if the employer is
a trading, financial or foreign corporation the WAIRC may not have jurisdiction to deal with
the matter.25 It is not in dispute that the Respondent was served with the application shortly
after.
[21] The Respondent was required to provide its answer within 21 days of receiving the
application. The Respondent did not file a Form 5 – Notice of Answer until 27 January 2017
in the WAIRC. The Applicant received the Form 5 either on that day or shortly thereafter.
The Form 5 put the Applicant on notice that the Respondent alleged that it was a national
system employer and that the WAIRC did not have the jurisdiction to hear the matter.26
[22] The Applicant’s evidence is that he did not understand the document lodged by the
Respondent because he thought “it was being handled within that system”.27 The Applicant’s
evidence is that he did not seek any legal advice as he did not have the funds to do so.28
[23] The Form 5, inter alia, noted that the application “incorrectly notes the entity is
unincorporated and at all material times, the correct employer was Gourmet Beef Pty Ltd as
trustee for the Three Blind Mice Unit Trust, trading as The Beef Shop.”29 Further, it attached
an ASIC certificate of registration of a company, establishing incorporation as a proprietary
limited company limited by shares on 28 August 2015. The Form 5 noted that the company is
predominantly a wholesale business with some retail trading activities and is therefore a
trading corporation for the purposes of s.51(xx) of the Commonwealth Constitution.30
22 Transcript PN197 – PN214.
23 Applicant’s F2 – Unfair Dismissal Application dated 17 May 2017 at q.3.2.
24 Respondent’s Outline of Submissions dated 4 July 2017 at [20].
25 Form 2 – Notice of claim of harsh, oppressive or unfair dismissal.
26 Respondent’s Outline of Submissions dated 4 July 2017 at [21] and R-3.
27 Transcript PN256.
28 Transcript PN257- PN260.
29 Respondent’s Outline of Submissions dated 4 July 2017 at R-3.
30 Ibid.
[2017] FWC 3866
6
[24] On 31 January 2017, the Respondent and Applicant attended a conciliation facilitated
by the WAIRC.31 The Applicant’s evidence is that Commissioner Matthews indicated that
“depending on the outcome of the hearing the applicant may need to file under fair work”32
but the Applicant maintains that he was unaware that he could withdraw his WAIRC
application as he believed it “was in his [the Commissioner’s] hands then by that stage”.33
The Applicant did not ask the Commissioner whether he could withdraw his application and
the Applicant’s evidence is that he did not seek legal advice after the conciliation as he “still
couldn’t afford it”.34
[25] On 11 April 2017, the Respondent filed in the WAIRC and served on the Applicant its
written submissions and documents to support its jurisdictional objection.
[26] The Applicant maintains that he did not seek any advice as he “still thought it was in
the judge’s hands, over with the Commissioner. Then I had to deal with it after that”.35
[27] On 13 April 2017, the Respondent and the Applicant attended a hearing in the
WAIRC. After the hearing, the Respondent was directed by the Commissioner to provide the
Applicant with certain documents by close of business on 21 April 2017.36 On 21 April 2017,
the Respondent served the requested documents on the Applicant. The Applicant did not seek
any advice after receiving this additional information.37 The Applicant said that he conducted
some research but “nowhere did it tell me that I could withdraw the application”.38 He
accepted that his research did not disclose anything that prevented him from withdrawing the
WAIRC application.39
[28] On 16 May 2017, the Applicant’s application was dismissed for want of jurisdiction.40
At all material times, the correct employer was Gourmet Beef Pty Ltd as trustee for the Three
Blind Mice Unit Trust, trading as The Beef Shop.
[29] On 17 May 2017, the Applicant filed his application in the Commission.
[30] I will now turn to the particular matters to which regard must be had.
Reason for the delay
[31] When considering the reason for the delay, the explanation given by the Applicant
needs to be a credible or acceptable explanation. The reason or reasons need to provide an
acceptable explanation for the whole of the period of the delay. Necessarily, the period of the
delay with which the explanation is concerned is in the period commencing immediately after
the time for lodging an application had expired and ending on the day on which the
31 Respondent’s Outline of Submissions dated 4 July 2017 at [22].
32 Applicant’s Outline of Submissions dated 26 June 2017, page 4 at q.1i.
33 Transcript PN276.
34 Transcript PN277 – PN282.
35 Transcript PN310.
36 Email dated 13 April 2017 from Commissioner Matthew’s associate requesting Respondent to file certain documents.
37 Transcript PN323 – PN332.
38 Transcript PN330.
39 Transcript PN331 – PN332.
40 2017 WAIRC 00272.
[2017] FWC 3866
7
application was ultimately lodged. However, the circumstances from the date the dismissal
took effect must be considered in assessing whether the explanation proffered for the delay is
an acceptable or credible explanation.41
[32] As discussed above, the Applicant says that the reason for lodging his application
outside of the time prescribed is because he was unaware that he was employed by a
constitutional corporation and as a consequence filed an application for an unfair dismissal
remedy in the wrong jurisdiction. Further, the Applicant maintains that he was unaware that
he could voluntarily withdraw his application from the WAIRC and maintains that he was of
the strong understanding that his employer was an unincorporated entity.
[33] The Respondent submits that the Applicant’s case demonstrates that he was aware of
the issues with his application in January 2017 or, at least, had some inkling that there was
something wrong with his application and that it might not proceed.42 The Respondent says
that there is no evidence that the Applicant took any step to ensure that his application was
being correctly pursued. It says that the Applicant has pointed out that he lodged his
application in the WAIRC because the ABN on his payslip showed that the Respondent was
an unincorporated entity.43 However, the Respondent says that it provided in its answer as
early as January 2017, evidence to suggest the contrary and later provided the Applicant with
an abundant amount of evidence to support its jurisdictional objection.44
[34] The Respondent submits that the evidence was sufficient enough to allow the
Applicant to make inquiries. It says that it appreciates that the Applicant may have not had the
ability to afford a lawyer, but says that there are other free avenues such as Legal Aid or
making inquiries with the Commission which the Applicant could have done, but failed to
do.45
[35] The Respondent further submits that the Applicant's evidence shows that he merely
pursued his claim in the wrong jurisdiction on an assumption. It says that it is well settled that
mere ignorance is not enough to constitute as exceptional circumstances.46 The Respondent is
of the view that had the Applicant taken the necessary steps to ensure that he was correctly
pursuing his claim, back in January or even in April 2017, when he first became aware of the
issue, the Respondent would not have suffered the unnecessary inconvenience of both
financially and time out of his business to defend the claim, with no prospects of success.47
[36] The Respondent submits that there is nothing exceptional about the Applicant's
predicament. It says that people make mistakes all the time and that steps are generally taken
to rectify those mistakes. The Respondent acknowledges that the Applicant initially acted on a
genuine error when lodging his application but says that he did not take the steps to rectify his
41 See Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12] and Ozsoy v Monstamac
Industries Pty Ltd [2014] FWCFB 2149 at [31] – [33]; See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine
[2016] FWCFB 6963.
42 Transcript PN476.
43 Ibid.
44 Ibid, Transcript PN477.
45 Ibid.
46 Transcript PN478.
47 Transcript PN479.
[2017] FWC 3866
8
error when he became aware of the issue. The Respondent submits that the Applicant simply
just waited around to see what would eventuate.48
[37] I accept that as at 9 December 2016 the application to the WAIRC is, although made
erroneously, understandable given the Applicant is unrepresented and unfamiliar with the
legal niceties of the legal fiction that is a corporation and the quite complex divide between
that which is covered by state industrial law in Western Australia and that which is covered
by federal law. This confusion and uncertainty was aided and abetted by the apparent lack of
detail provided to the Applicant by the Respondent at the time it acquired the business in
which the Applicant was employed, and subsequently in written material given to the
Applicant such as payslips. I also appreciate that the Applicant acted expeditiously and lodged
his application in the WAIRC the day after his resignation took effect. I am therefore prepared
to accept that for the period between 29 December 2016 and 27 January 2017, the date of
which the Respondent filed its answer, there was nothing that was readily available to the
Applicant which would have alerted him to the fact that he filed an application in the incorrect
jurisdiction.
[38] By its Notice of Answer lodged on 27 January 2017, the Respondent raised a
jurisdictional objection. I am not unsympathetic to the view that even at that stage the Notice
of Answer contained little more than an assertion and the Applicant was not given any
documents to support the Respondent’s objection. That is, although the Notice of Answer
contained a copy of a certificate of registration of a company, no document was at that stage
produced which suggested that that company was the Applicant’s employer or that it was a
trading corporation. Moreover, the Notice of Answer was expressed in legalese and difficult
for an unrepresented person to comprehend. I am prepared to accept that at that stage there
still is a reasonable explanation for the delay. The parties then proceeded to the WAIRC on
31 January 2017. Although there is no record of what occurred it is not in dispute that no
documents were exchanged between the parties and so although the Applicant could have
been more diligent in making some enquiries, I am prepared to accept that even at that stage
there is a reasonable explanation for the delay. I therefore accept that for the period between
30 December 2016 and 31 January 2017, the Applicant has provided an acceptable
explanation for that period of delay.
[39] On 11 April 2017, the Respondent filed in the WAIRC and served on the Applicant its
written submissions and supporting documents. The parties then attended a hearing on 13
April 2017.It is evident that the WAIRC still required further documentation in support of the
Respondent’s jurisdictional objection. The Commissioner’s associate sent an email to the
parties after the hearing on 13 April 2017 requesting that the Respondent file further
documentation to support its jurisdictional objection. The documents were produced on 21
April 2017. In these circumstances, I accept that for the period between 1 February 2017 and
21 April 2017, when the final documents were filed with the WAIRC and served on the
Applicant, the Applicant has provided an acceptable explanation for that period of delay.
[40] However, on 21 April 2017, after the parties have attended a hearing in the WAIRC
and all documents between the parties have been exchanged, it should have been apparent to
the Applicant that there was a real risk that his application might have been lodged in the
incorrect jurisdiction. The Applicant had possession of all of the necessary documents which
showed that there was a change in ownership of the business, and the company was the trustee
48 Transcript PN481.
[2017] FWC 3866
9
of the trust which operated the business and ultimately, the Applicant’s employer. At the very
least, on reviewing the material filed by the Respondent in support of its jurisdictional
objection, the Applicant should have sought some legal or other advice about whether his
application had been lodged in the correct jurisdiction. The Applicant should have considered
whether persisting with his application before the WAIRC was wise given the Respondent’s
jurisdictional objection. At the very least, the Applicant should have taken steps to enquire
about whether he could voluntarily discontinue his application and file in the Commission or
alternatively whether he could continue with his application in the WAIRC and file an
application in the Commission simultaneously. He did none of these things.
[41] The Applicant’s position or explanation is best summarised by the following
submission made on his behalf:
“it's not that we took no steps, or thought it was someone else's responsibility, we disagreed that
that was who employed us and we were waiting on the decision to be made.”49
The Applicant had the necessary documents to establish that the Respondent was his
employer and that it was likely a constitutional corporation and thus a national system
employer but nonetheless proceeded on the basis that the Applicant was not employed by the
Respondent and waited for the WAIRC’s decision. That is a choice the Applicant made.
[42] I am therefore unable to accept that the Applicant has provided an acceptable
explanation for the period between the date which the Applicant received the further
documents, which was 21 April 2017, and the date on which this application was made, which
was 17 May 2017. The only explanation is that the Applicant was of the opinion that he
needed to wait until Commissioner Matthews had made a decision. That opinion was formed
without inquiry and was baseless.
[43] The Applicant’s failure to take any step to seek advice after becoming aware and
armed with supporting documents that there was likely a problem also weighs against a
conclusion that there is an acceptable explanation for the delay following 21 April 2017.
Therefore, I do not consider that the Applicant has an acceptable explanation for the whole of
the delay. In the circumstance, this consideration weighs against the Applicant.
Whether Applicant first became aware of the dismissal after the date it took effect
[44] The Applicant was aware of the ending of the employment on the day it took effect.
He had 21 days to lodge his application. This would normally weigh against the Applicant
because the Applicant had the benefit of the full 21 day period within which to lodge the
application. However, in the circumstances of this case, given the Applicant lodged in the
WAIRC, albeit erroneously, the following day, and given all that followed, I consider this
factor to be neutral.
49 Transcript PN493.
[2017] FWC 3866
10
Action taken by the Applicant to dispute his dismissal
[45] It is clear that the Applicant took immediate action to contest his “forced resignation”
albeit in the wrong jurisdiction. Moreover, in the course of the WAIRC proceeding, it was
clear that the Applicant was disputing his dismissal.
[46] In the circumstances, this is a matter that weighs in favour of the Applicant.
Prejudice
[47] Turning to the question of prejudice, the mere absence of prejudice is not a factor
which immediately weighs in favour of an Applicant who seeks a further period within which
to lodge an application for an unfair dismissal remedy.
[48] The Respondent says that it would not be in the position that it is today but for the
delay. It says that this matter could have been dealt with six months prior if the Applicant had
taken the necessary steps to make sure he was pursuing the correct application.50
[49] The Respondent’s position is that if the application is granted the company will suffer
significant prejudice because it has dealt with this matter in the wrong jurisdiction already and
despite putting the Applicant on notice, he persisted in that application instead of filing his
application in the Commission. The Respondent submits that it is a small business with no
dedicated human resource department51 and there would be significant prejudice if the
Applicant were now allowed to pursue his claim in the Commission when he could have done
so at a much earlier stage. The Respondent says that to date, the Respondent has been
required to expend substantial time and money in order to defend the claim filed in the
WAIRC which did not have any prospects of success.52
[50] The Respondent’s position is not without merit. The Applicant’s failure to seek advice
at any stage contributes to the delay and meant that the Respondent was forced to prosecute
its jurisdictional objection in the WAIRC to finality. All this could have been avoided by
some measure of diligence on the Applicant’s part at least since 21 April 2017.
[51] In the circumstances, this consideration weighs against the Applicant.
Merits of the application
[52] As to the merits of the application, a hearing to consider whether time should be
extended is essentially an interlocutory hearing, which does not generally permit a substantive
review of the merits of the particular application. Indeed as s.396 of the Act make clear, the
question whether an application was made within the period required in ss.394(2) (which
includes whether a further period is to be allowed) is a matter that must be decided before
considering the substantive merits of the application. In most cases the best that can be done
is to take the Applicant's case at its highest and assess the merits from that perspective. That
is, to look at the Applicant's case in the most favourable light and make an assessment about
the merits.
50 Transcript PN480.
51 Respondent’s Outline of Submissions dated 4 July 2017 at [64].
52 Ibid at [65].
[2017] FWC 3866
11
[53] On the Applicant’s case, the Applicant was forced to resign for a number of reasons
including that Mr McDonald allegedly “harassed” and “bullied” the Applicant “until he had
no other option then [sic] to resign”.53 The Applicant filed a medical certificate which
declared him unfit for work for the period of 15 November 2016 to 22 November 2016
inclusive and the Applicant alleges that he was given a medical certificate for a period of four
days on 5 December 2016.
[54] The Applicant also says that he was not paid correctly and was forced to accept part-
time hours without his consent. The Applicant’s evidence is that the above factors combined
seriously impacted his family structure and forced him to resign.54
[55] The Respondent denies that it altered the Applicant’s employment to part-time and
submits that the Applicant’s employment status remained at full time.55 The Respondent says
that in late November 2016, the Applicant received a written warning for leaving work earlier
than his rostered finish time without any authorisation or notice. Further, the Respondent
submits that no dismissal took place within the meaning of s.386 of the Act on the basis that
the Applicant resigned from his employment on his own volition.56
[56] On the face of the materials, there seems to be some dispute as to whether there was to
be an alteration of hours, which had the effect of altering the Applicant’s status from full-time
to part-time.
[57] As indicated above, Mr Taylor gave evidence that the written notice given to the
Applicant by Mr McDonald contained an error57 however Mr McDonald did not attend the
hearing and so as things presently stand on the material before me the Applicant’s case is not
without some merit, not least because such an alteration, without agreement, would be in
breach of the Meat Industry Award 2010 (Award).
[58] However, if the Respondent is able at a hearing to establish that the email, to which
earlier reference is made, was sent and received by the Applicant, then the Applicant is likely
to have difficulty in establishing there was a dismissal since a variation to rostered hours is
permissible under the Award with notice and consultation. It seems to me therefore, the merits
consideration is a neutral factor.
Fairness as between the Applicant and other persons in a similar position
[59] As to fairness 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 in
part with the importance of the application of consistent principles in cases of this kind, thus
ensuring fairness as between the Applicant and other persons in a similar or like position. This
consideration may relate to matters currently before the Commission or to matters previously
decided by the Commission.
53 Applicant’s F2 – Unfair Dismissal Application dated 17 May 2017 at q.3.1 and q.3.2.
54 Ibid.
55 Respondent’s Outline of Submissions dated 4 July 2017 at [80].
56 Ibid at [81].
57 Transcript PN121.
[2017] FWC 3866
12
[60] The Respondent submits that the Applicant would be significantly advantaged in
relation to other persons in a similar position because the Applicant would, in essence, be
granted an extension for reasons which are not outside the ordinary course, and therefore, not
exceptional circumstances.58
[61] No other submissions were made on this issue, neither party brought to my attention
any other relevant decision or matter before the Commission.
[62] During the proceeding, I referred the parties to two decisions which were factually
similar to the present case. I referred the parties to the decision of Deputy President Gooley in
Peter Matthiessen v Pilbara Ports Authority59 wherein the Deputy President observed that
once the applicant “was alerted to the objection” he should have sought advice. In that case,
the applicant had wrongly lodged an application in the WAIRC on 16 December 2015. On 15
January 2016 the respondent served its response and put the applicant on notice that it was a
national system employer and that the WAIRC did not have the jurisdiction to hear the matter.
The applicant lodged his application in the Commission on 3 February 2016 after the
conciliation. The Deputy President observed that the applicant was not entitled to simply do
nothing and await the outcome of the conciliation before lodging his application in the
FWC”.60 On that basis the Deputy President concluded that there was no reasonable
explanation for the delay and there were no exceptional circumstances and dismissed the
application. In Matthew Palmer v RCR Engineering Pty Ltd61 the applicant lodged his
application in the wrong jurisdiction. That application was lodged in the WAIRC shortly after
the termination of the applicant’s employment. After lodging that application, the applicant
sought legal advice however, the issue of jurisdiction was overlooked. Deputy President
McCarthy observed that the applicant had a reasonable explanation for the delay as the
respondent lodged an objection to the WAIRC application on jurisdictional grounds, but not
until 20 days after the application was lodged. The Deputy President observed that the
applicant “took steps, including attempting to get further advice which resulted in a delay of a
couple of days, to lodge an application in Fair Work Australia.”62 He further observed that
“had it been lodged more expeditiously the applicant most likely would have lodged an
application with FWA within the time allowed.”63 On that basis, the Deputy President
concluded that there was an acceptable explanation for the delay and, taking into account the
other matters, he granted an extension of time.
[63] It seems therefore that a significant factor in cases of this kind is the steps that an
applicant took to seek advice after becoming aware that there was a jurisdictional problem
with his or her state industrial law application. The Applicant took no step to seek advice to
ensure that he was pursuing the claim in the correct jurisdiction.64
[64] In the circumstances, I consider this factor weighs against the Applicant.
58 Respondent’s Outline of Submissions dated 4 July 2017 at [89].
59 [2016] FWC 1532.
60 Ibid at [14].
61 [2009] FWA 1431.
62 Ibid at [5].
63 Ibid at [9].
64 Transcript PN491.
[2017] FWC 3866
13
Conclusion
[65] The statutory time limit that is applicable to the exercise of a person's right, to bring an
unfair dismissal remedy application is an expression of the parliament's intention that rights
should be exercised promptly. That is because it is important that there is some certainty,
particularly in relation to an employer who has taken a particular step, that they know that
after the expiration of 21 days, in the case of a termination, that that will be the end of the
matter. Time limits seek to balance the right to bring an action by an aggrieved former
employee and the desirability of prompt action and prompt resolution of disputes.
[66] It is for that reason, the parliament has chosen to establish a time period and that time
period is 21 days. However, the parliament also recognises that there will be some cases
where a late application should be accepted and it has set out the test of exceptional
circumstances and the matters that need to be taken into account.
[67] A person who seeks relief from an unfair dismissal must make the application within
21 days after it takes effect and it is only in exceptional circumstances that the Commission
will consider whether to allow a further period. Weighing all of the matters that I must weigh
and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that
there are exceptional circumstances in this case, warranting a consideration of the exercise of
my discretion to allow a further period.
[68] There is no satisfactory or acceptable explanation for the whole period of the delay for
the reasons already given. Although the Applicant immediately disputed the termination, the
merits of the case consideration is neutral, prejudice weighs against the Applicant as does the
fairness factor.
[69] As I have indicated, when I consider all the evidence in this case and the matters that I
need to take into account individually and collectively, I am not satisfied that exceptional
circumstances exist.
[70] As a consequence, I do not need to consider whether I should exercise my discretion.
The application to allow a further period within which the Applicant’s application should be
lodged is refused.
[71] Before concluding, I would observe that in the WAIRC proceeding, the Commissioner
made the following observation:
7. The error Mr King made in naming Mr McDonald and Mr Taylor as his employers is easy
enough to understand. He dealt with these persons in relation to his employment. He never
received a written contract of employment. The documentation he received in relation to his
employment (such as his Payment Summaries provided for taxation purposes) nominated “The
Beef Shop” as the payer of his wages. He had no idea that a company had been created,
seemingly for the purchase of the business, and that that company operated the business, and
employed him, in its role as the trustee for a unit trust established and known as the Three
Blind Mice Unit Trust pursuant to a resolution of the company directors.
8. If Mr King’s excusable misunderstanding has caused delay in him bringing his claim in the
correct forum then to the extent delay is relevant it seems to me, for what it is worth, that the
delay is equally excusable.
[2017] FWC 3866
14
With all due respect to the Commissioner, the observation was made without properly
considering the matters relevant to my determination and moreover the matters about which
the Commissioner observes the Applicant had “no idea”, should have been clear to him by, at
the latest, 21 April 2017.
[72] The application is dismissed. An order giving effect to this decision is separately
issued in PR595071.
DEPUTY PRESIDENT
Appearances:
Mr R King, on his own behalf.
Ms M Ibrahim, on behalf of the Respondent.
Hearing details:
2017.
Melbourne.
21 July.
Printed by authority of the Commonwealth Government Printer
Price code C, PR594777
THE FAIR WORK COMMISSION SEAL OF
