DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Barry Porter
v
Country Cranes T/A MIA Crane Services
(U2020/1033)

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed.

[1] Mr Barry Porter was employed by Country Cranes T/A MIA Crane Services (MIA) until his employment was terminated on 21 December 2019.

[2] On 31 January 2020 Mr Porter lodged an application pursuant to s.394 of the Fair Work Act 2009 seeking relief for an alleged unfair dismissal by MIA.

[3] Section 349(2) of the Act prescribes a 21 day period within which an unfair dismissal claim must be made. The 21 day period in Mr Porter’s case expired on Saturday 11 January 2020. Given the final day fell on a weekend, the timeframe was extended to Monday 13 January 2020 1. Mr Porter’s application was therefore lodged 18 days late and cannot proceed unless the Commission grants an extension of time.

[4] MIA’s response to the application confirmed that Mr Porter’s dismissal took effect on 21 December 2019 and opposed an extension of time being granted.

[5] On 5 May 2020 I conducted a hearing by telephone to determine whether Mr Porter should be granted an extension of time pursuant to s.394(3) of the Act. At the hearing Mr Porter was self-represented and MIA was represented, with permission, by Mr J Macken. Notwithstanding Mr Porter’s objection to the granting of permission for MIA to be represented, I allowed representation on the basis that it would enable the matter to be dealt with more efficiently.

[6] Oral evidence was given by Mr Porter and Mr E Hillman (Director of MIA).

Consideration

[7] Section 394(3) of the Act sets out the circumstances in which the Commission may grant an extension of time. It provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[8] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the applicant.

[9] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 2 where the Full Bench said:

“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[10] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[11] Mr Porter provided the following reasons for the delay:

a. He was not aware of the 21 day time period until the day before he filed his unfair dismissal application.

b. He had been waiting for documents to be provided by MIA which included his employment contract and timesheets. He then took time to go through the material after it was received by him

c. He was ‘stuck’ in Canberra for some days in January due to the road closures caused by bush fires.

d. He took time during the 21 day period to contact iCare pertaining to his workers compensation insurance claim and dealing with doctors and specialists to try and prepare for his upcoming surgeries.

[12] Mr Porter said that his past experience dealing with family court and other jurisdiction led him to believe that he was required to have all the relevant details before he could file the unfair dismissal application.

[13] He asserted that MIA purposely delayed supplying him the documents in order to impede him from making an unfair dismissal claim.

[14] MIA on the other hand contended that none of the reasons advanced by Mr Porter for the delay satisfy the ‘exceptional circumstances’ requirement for an extension of time to make his application.

[15] MIA submitted that that the documents requested by Mr Porter, being the employment contract and timesheets, were provided to him on 3 and 6 January 2020 respectively.

[16] MIA also contested Mr Porter’s claim that the roads between Canberra and Leeton (where Mr Porter resides) were closed in January 2020, claiming that MIA continued to run its tanker between Leeton and Canberra during this period.

[17] On the material before me, I am not satisfied that Mr Porter has provided an acceptable explanation for the delay. The reasons given by Mr Porter do not give rise to any exceptional circumstances. Mr Porter’s circumstances were not out of ordinary, unusual or uncommon.

[18] Mere ignorance of the statutory time limit or a lack of knowledge about legal rights is generally not accepted by the Commission as an exceptional circumstance. 3 It is ultimately an applicant’s responsibility to seek out information as to their rights and comply with the statutory requirements.

[19] The documents requested by Mr Porter from the employer were provided to him by 6 January 2020. In any case I do not accept that the timing in furnishing these documents caused any delay in the filing of the application.

[20] In terms of his explanation that the road closures in Canberra contributed to the delay, Mr Porter provided no evidence to the extent how this impacted his capacity to lodge the application until 31 January 2020. Mr Porter did not assert that he was adversely affected by a lack of access to telephone or internet. Nor was it explained by Mr Porter why he could not have made the application by telephone/post/facsimile/email whilst he was in Canberra.

[21] Overall, none of the matters advanced by Mr Porter provide a satisfactory explanation for his failure to file the unfair dismissal claim within time.

[22] For the above reasons, I consider this factor weighs against a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[23] It is not disputed that Mr Porter’s dismissal was communicated to him on 21 December 2019 with immediate effect and he was given two weeks’ pay in lieu of notice.

[24] That Mr Porter was aware that his dismissal took effect on 21 December 2019 weighs against a finding of exceptional circumstances.

Any action taken by the person to dispute the dismissal

[25] Mr Porter did not take any action to dispute his dismissal until this application was lodged. This weighs against a finding of exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[26] I do not consider granting an extension of time would result in a prejudice to MIA. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I therefore find this factor to be a neutral consideration.

The merits of the application

[27] For the purpose of determining whether to grant an extension of time, the Commission ‘should not embark on a detailed consideration of the substantive case.’⁴

[28] In Miller v DPV Health Ltd⁵, Deputy President Colman, in considering this criterion, made the following observation:

“[27] The merits of the application turn significantly on contested points of evidence that would need to be tested in cross-examination if an extension of time were granted and the matter were to proceed. Much would depend on findings of fact and assessments of witness credibility. It is not possible to make any firm or detailed assessment of the merits. However, my preliminary view is that Ms Miller’s application is not without merit. She has at least an arguable case that her misconduct was not substantiated and that her dismissal was not for a valid reason and unfair. Equally however, the company has a reasonable prima facie defence to the claim, namely that the misconduct was established to the requisite standard of proof and that the dismissal was not unfair in all the circumstances. Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case to tell for or against an extension of time. I consider the merits to be a neutral consideration.” 

[29] Mr Porter’s employment was terminated after taking what was said to be unauthorised leave for a period of 5 days between 16 and 20 December 2019. He was advised of his dismissal and handed a letter of termination when he attended the workplace on 21 December 2019.

[30] In the letter of termination Mr Hillman set out the reasons for the dismissal as follows:

“Failure to attend at work as required as of the 15th December 2019.

•  On the 9^th of December you requested leave to complete a course, I advised that due to the busy schedule it would be unlikely the leave would be approved.

•  On the 13^th of December you asked if the leave was possible, I informed you that unfortunately due to operational requirements the leave would not be approved.

•  On the 15^th of December I texted with the start time for Monday 15th December, you informed me that you would not be attending work and I would need to find a replacement.

This leave was not approved and in not attending work you have again refused to follow instruction from myself and not worked as part of the team.”

[31] The letter also referred to a verbal warning given to Mr Porter in October 2019 relating to various conduct issues which included entering incorrect hours on the timesheets, not working as part of a team, being rude to suppliers and customers; and not following instructions from the employer. It was Mr Hillman’s evidence that Mr Porter was warned of the conduct issues in the context of a meeting on 25 October 2019.

[32] Mr Porter did not dispute taking unauthorised leave after his request for leave was twice refused by Mr Hillman. He gave evidence that he had informed Mr Hillman before he started his employment that he would be undertaking the 3 day crane operator course to upgrade his licence.

[33] He denied having received any verbal or written warnings and maintained that he had been unfairly dismissed. He argued that the discussions with Mr Hillman in October were simply a conversation with no third person present and was therefore not a valid warning.

[34] Mr Porter’s submissions largely pointed to his dispute about allegations of underpayment of wages and superannuation and unlawful conduct of MIA. Those matters are beyond the jurisdiction of the Commission and can be pursued independently of this application.

[35] I am unable to make an assessment of the merits in the absence of tested evidence. I therefore find the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[36] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm⁶ considered this criterion and said ‘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.’⁷

[37] There are no other relevant persons in a similar position to Mr Porter. I therefore find this factor to be a neutral consideration.

Conclusion

[38] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant granting an extension of time. The circumstances of Mr Porter are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[39] An order dismissing the application will issue with this decision.

DEPUTY PRESIDENT

Appearances:
B Porter, on his own behalf.
J Macken, for Country Cranes T/A MIA Crane Services.

Hearing details:
2020.
Sydney (By telephone):
May 5.

Printed by authority of the Commonwealth Government Printer

<PR718761>

 1   Acts Interpretation Act 1901 (Cth) s.36(2).

 2   [2011] FWAFB 975.

 3   Ibid at [14].

4 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

5 [2019] FWC 3979.

6 [2015] FWC 8885.

7 Ibid at [29].