| [2020] FWC 5569 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sergio Teixeira
v
ADADN Group
(U2020/4922)
COMMISSIONER JOHNS |
SYDNEY, 23 OCTOBER 2020 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.
[1] This decision concerns an application by Sergio Teixeira (Applicant) for an extension of time to file an unfair dismissal application pursuant to s 394 of the Fair Work Act 2009 (Act).
[2] The matter was initially allocated to Deputy President Kovacic who conducted a hearing on 2 July 2020. Following the death of my colleague the matter was reallocated to me on 7 August 2020. In coming to this decision, I have had regard to all of the material that was before the Deputy President including the transcript from 2 July 2020.
Background
[3] This is not the first application for an unfair dismissal remedy made by Mr Teixeira against his former respondent ADADN Group (Respondent). Accordingly, it is worth setting out the background so that the current application can be considered in context.
a) In or about October 2018 Mr Teixeira commenced working for the Respondent.
b) Mr Teixeira learned that he had been dismissed on 19 December 2019 (when he received the Separation Certificate dated 16 December 2019).
c) On 6 January 2020 Mr Teixeira filed an unfair dismissal application (U2020/139) (First Application) within the 21-day timeframe required by s.394(2) of the Act. The First Application was filed by the Applicant’s representative the CFMMEU.
d) By email on 13 February 2020 at 5.53 pm the Applicant withdrew the First Application. He wrote,
“I’m witting on behalf the unfair dismal claim.
I have spoken with Adcon group and we have come to an agreement and would like to withdraw the that I have made.”
e) Before withdrawing the First Application the Applicant did not consult with the CFMMEU.
f) On 14 February 2020 the CFMMEU became aware that the Applicant had withdrawn the First Application.
g) On 3 March 2020 the CFMMEU advised that it wanted to have the First Application relisted because “The Respondent has not made good on their end of the offered settlement.”
h) On Tuesday, 14 April 2020 the Deputy President held a conciliation conference. There was no attendance by the Respondent. The matter remained unresolved.
i) On Thursday, 16 April 2020 the CFMMEU filed the present application (Second Application).
j) On 17 June 2020 the Deputy President issued a decision 1 in which he determined that “there is no basis on which the Commission can reopen [the First Application].”
Legislation
[4] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 9 January 2020. The Second Application was therefore filed 98 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 2 Exceptional circumstances may 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 can be considered exceptional.3
[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 4
[10] In the Second Application the factual circumstances set out above were explained as the reasons for the delay.
[11] In submissions filed before the Deputy President the CFMMEU contended on behalf of the Applicant that,
“20. The Applicant says that there are exceptional circumstances, going to the Respondent’s deceptive conduct and the Applicant’s mistaken belief in an agreement between the parties immediately prior to the Applicant’s discontinuance of the [First Application].”
[12] It was further contended that,
“21. The primary reason for the delay was the Applicant’s pursuit of the [First Application]…”
[13] The second ground that is said to explain the delay is representative error. The CFMMEU contended that,
“23. During the period between 13th February and 14th April, the Applicant sought the assistance of his representative to press both the agreement he believed existed and then to relist the matter. Correspondence between his representative, the Respondent and the Commission continuing during that period; and there is no indication that – in the absence of the agreement he believed he had struck with the Respondent – he believed the matter concluded or finalised.
24. Further during this period, the Applicant’s representative (as demonstrated by Attachment ST‐7 of the Applicant’s affidavit) was under the mistaken belief that no valid discontinuance had occurred; an error which was definitively crystallised by the decision in U2020/139.4 As a result, a not‐insignificant source of the delay in filing can fairly be categorised as representative error.”
[14] In relation to the First Application the Deputy President held that “there is no suggestion of duress” 5 and he was “not satisfied that Mr Teixeira’s decision to withdraw [the First Application] was a unilateral mistake.”6
[15] Noting the findings of the Deputy President the fact that the Applicant was pursuing the First Application is not a reasonable explanation for the delay.
[16] I am also not satisfied that any of the actions of the CFMMEU constituted representative error. There is no evidence that would support such a finding. At all times the CFMMEU acted promptly. The pursuit of the First Application or belief that it might be re-enlivened does not fall within the parameters of representative error. In asserting representative error, the actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable. 7 In this matter it was the actions of the Applicant that discontinued the First Application. Further, there is no evidence that the Applicant was giving instructions to the CFMMEU that it failed to follow such that it could be said the Applicant is without blame in the matter.
[17] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay.
[18] The absence of an acceptable explanation weighs against the Applicant/ a conclusion that there are exceptional circumstances.
[19] The Applicant was notified of the dismissal on 19 December 2019. Noting the events surrounding the First Application (which was filed in time) this is a neutral consideration.
[20] The Applicant filed the First Application within time. This circumstance weighs in favour of the Applicant.
[21] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
[22] The Act requires me to take into account the merits of the application in considering whether to extend time. The Respondent has played no role in the proceedings. I do not know what it contends. As such I am only left with the contentions of the Applicant. In any case it is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case. Because the Applicant’s case is not without merit it tells in favour of granting an extension of time.
[23] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. The CFMMEU submitted that “there are, thankfully, no other people in a similar position that the Applicant is aware of.” 8 The CFMMEU then sought to distinguish two cases where extensions of time were refused in circumstances where an application had first discontinued an application. I am not satisfied that those cases are so easily distinguished. However, for present purposes I
consider this to be a neutral consideration.
[24] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
[25] Finally, I also observe that it would be curious if, in failing to have the First Application re-enlivened before the Deputy President, the Second Application was given an extension of time with the effect that it would defeat the effect of the decision of the Deputy President in [2020] FWC 3147. That possible result also tells against exercising a discretion in favour of granting an extension of time. There are sound public policy reasons for not allowing that to occur.
COMMISSIONER
Appearances:
T. Fischer for the Applicant.
No appearance by the Respondent.
Hearing details:
2020.
Canberra (via telephone).
2 July 2020.
Printed by authority of the Commonwealth Government Printer
<PR723672>
2 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
3 Ibid.
4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]
5 [2020] FWC 3147, [18]
6 [2020] FWC 3147, [20]
7 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR
8 CFMMEU submissions date 1 July 2020, para 29