Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Joshua Marshall
v
Citywide Service Solutions Pty Ltd
(U2022/691)

Application for an unfair dismissal remedy – extension of time

[1] Mr Joshua Marshall was employed by Citywide Service Solutions Pty Ltd as an Open Space Team Member, until his employment was terminated effective 7 December 2021.

[2] Section 394(2) of the Fair Work Act 2009 (Cth) (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).

[3] The period of 21 days ended at midnight on 28 December 2021. Mr Marshall’s application was lodged on 11 January 2022.

[4] In order for the application to proceed, Mr Marshall requires the Commission grant a further period of time within which to bring his application.

Extension of time

[5] Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”. 1

[6] In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

•  the reason for the delay,

•  whether the person first became aware of the dismissal after it had taken effect,

•  any action taken by the person to dispute the dismissal,

•  prejudice to the employer (including prejudice caused by the delay),

•  the merits of the application, and

•  fairness as between the person and other persons in a similar position.

Relevant factors

Reason for delay

[7] The Act does not specify what reason for delay might justify 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. 2

[8] Mr Marshall’s evidence is that he sent an unfair dismissal application to the Commission, by mail before the end of the 21-day period. His evidence was that this was on or around 23 December 2021. His evidence was that he found it easier to print the application form and go to the post office to send it, because he didn’t have a digital signature and didn’t think that typing his name would be acceptable.

[9] He says that about a week later he was contacted by someone at the Commission who told him his application was incomplete and therefore was not able to be processed. Mr Marshall can’t recall who he spoke to and has no records of this contact. He says that he was assured that it wouldn’t be too much of an issue, because of his earlier attempt to lodge an application within the time period. He says that the only changes he made to his original application were adding an explanation about the delay in lodging and attaching correspondence and documents. Mr Marshall then submitted his application by email at 16:52 on 11 January 2022.

[10] Although she did not participate in the hearing, the Applicant’s mother provided a signed witness statement that said that her son “experienced some unforeseen delay in getting the paperwork in on time. However, he believed he had sent it well in time unfortunately there were some missing parts to his application. My son has a form of dyslexia and being quite unfamiliar with legal paperwork or documentation, his application had to be rectified. On which he did successfully complete and send required documents it just meant it was on the fringe of the deadline of 21 days.”

[11] Following the hearing, further enquiries were made of the Commission’s records which established that an application was received by post on 31 December 2021. It was incomplete, with the first two pages missing. On 5 January 2022, Commission staff emailed and telephoned Mr Marshall advising him of this, and that a complete application would need to be received. The email reiterated that there are strict time limits for some application types, and some applications are dismissed if they aren’t lodged within the time limits.
[12] The parties were invited to make further submissions in light of this information. Neither did so.

[13] The Respondent objects to an extension of time being granted and submits that the Applicant has provided insufficient details to explain the late filing of this application.

[14] I am satisfied that Mr Marshall has provided an acceptable explanation for part of the delay in lodging his application, being the period to 5 January 2022. However, no acceptable explanation has been provided for the six days from 6-11 January 2022. During this period, he was aware of the strict time limits but did not act sufficiently promptly. That is a matter that weighs against granting an extension of time.

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

[15] Mr Marshall received (by email and post) a letter of termination dated 7 December 2021. He was also aware in the lead-up to the termination, of the prospects of his employment being terminated. He had the benefit of the full 21-day period to lodge his application.

Any action taken by the person to dispute the dismissal

[16] Other than making this application, there is no evidence of any other action taken to dispute the dismissal. I consider this a neutral consideration in this case.

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

[17] The Applicant contended there would be no prejudice to Citywide if he were allowed additional time to bring his claim. The Respondent submitted that it would be prejudiced, especially given that it submits the application has no merit. I have treated this as a neutral consideration.

Merits of the application

[18] Mr Marshall was dismissed from his employment because he did not comply with a direction to provide, by 15 October 2021, evidence of his vaccination status, and to either be partially vaccinated or have a booking to receive a first dose of COVID-19 vaccination, or a medical exemption.

[19] Citywide issued this direction to comply with the COVID-19 Mandatory Vaccination (Workers) Directions. Citywide was required to comply with the public health directions, as Mr Marshall appears to be an Authorised Worker covered by the Directions. Mr Marshall chose not to get vaccinated and was therefore not able to perform his job.

[20] The Respondent also contends that the Applicant has not served the minimum period of employment. The Applicant contends he commenced employment on 18 November 2020. The Respondent contends that Mr Marshall commenced employment on 9 August 2021 and was only employed for 4 months. During the hearing, Mr Marshall gave evidence to explain the discrepancy. His evidence is that prior to August 2021, he worked at Citywide through a labour hire company, Citywide International Labour Group. He provided his payslip for the first time he worked at Citywide. The payslip shows that Mr Marshall was employed by Workforce Recruitment and Labour Services Pty Ltd. Citywide Service Solutions Pty Ltd was specified as the Client for whom Workforce Recruitment provided Mr Marshall’s labour. Mr Marshall’s evidence was that he was subsequently employed directly by the Respondent towards the end of 2021. The Respondent’s evidence was that Mr Marshall first commenced working as an employee of Citywide on 9 August 2021 and produced an offer of employment to Mr Marshall dated 22 July 2021.

[21] On the basis of this evidence, Mr Marshall was employed by the Respondent for a period of approximately 4 months. This is less than the minimum period of employment required under the Act for Mr Marshall to be eligible to make an unfair dismissal application. Accordingly, on this basis alone, Mr Marshall is unable to succeed in his application.

[22] This is a factor that strongly weighs against Mr Marshall being granted an extension of time.

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

[23] This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. Mr Marshall submitted that other employees of the Respondent have also been dismissed for similar reasons. I have treated this to be a neutral consideration in this case.

Conclusion

[24] In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances. Therefore, no additional time can be allowed for Mr Marshall to make his application and he is not entitled to apply for an unfair dismissal remedy.

[25]
The application is dismissed. An order to that effect will be issued separately.

COMMISSIONER

Appearances:

J Marshall, Applicant.

T Lobos for the Respondent.

Hearing details:

2022

Melbourne (by video)

January 27.

 1   Nulty v Blue Star Group (2011) 203 IR 1 at [13].

 2   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

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