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

Kyriakos Zapantis
v
Coles Supermarkets Australia Pty Ltd
(U2022/6566)

Unfair dismissal application filed out of time – circumstances exceptional – extension of time for filing allowed.

[1] Mr Kyriakos Zapantis (the Applicant) made an application to the Commission under section 394 of the Fair Work Act 2009 (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Coles Supermarkets Australia Pty Ltd (the Respondent).

[2] Before granting a remedy, the Commission must be satisfied that the application was not made out of time.

[3] This published decision reflects the decision I gave ex tempore on 13 July 2022 with corrections for grammatical, syntactical and any other insignificant errors.

[4] An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

[5] The parties agree, and I so find, that the dismissal took effect on 1 June 2022 and the application was made on 23 June 2022, some 22 days after the dismissal took effect. I am, therefore, satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.

[6] The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at section 394(3) of the Act. Those matters are:

(a) the reason for the delay;

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

(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.

[7] As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.

Relevant factors

The first matter is the reason for the delay

[8] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 23 June 2022. As a majority of the Full Bench noted at [12] of its decision in Shaw v ANZ Bank [2015] FWCFB 287, the delay is the period commencing immediately after that time until 23 June 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.

[9] As stated by the Full Bench at [39] of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.

[10] As the Full Bench went on to say at [40], an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.

[11] The Applicant submitted that the delay was because of representative error. The Applicant submitted that his solicitor, Mr Schofield, had in his mind that the Applicant’s dismissal took effect on 2 June 2022, rather than 1 June 2022, and that his solicitor realised his mistake “after hours” on 22 June 2022. The following day, Mr Schofield sought instructions and moved to make the application for the Applicant on 23 June 2022.

[12] In relation to the reason for the delay, the Respondent submitted that representative error may be grounds for an extension of time where a person gave clear instructions to their representative to lodge an application and the representative failed to do so. The Respondent says that the Applicant did not instruct his solicitor to lodge an application on his behalf until after hours on 22 June 2022, which the Respondent submitted is when the deadline to file an unfair dismissal application had passed.

[13] The Respondent submitted that, in cases of alleged representative error, the authorities confirm that a distinction must be drawn between delay properly apportioned to an applicant's representative where an applicant is blameless, and delay occasioned by the conduct of the applicant. The Respondent submitted that whether the delay is attributable to an applicant or their representative is a matter to be determined by reference to the facts.

[14] The Respondent submitted that an applicant should be diligent in confirming the progress of the matter. It submitted that in circumstances where an applicant has left a matter in the hands of their representative and failed to take steps to inquire as to the status of their claim, it would generally not be unfair to refuse to accept an application. The Respondent submitted that there is no evidence from the Applicant to establish that he was diligent in confirming the progress of the matter.

[15] Turning to the evidence, Mr Schofield gave oral evidence at the hearing and filed evidence of emails that he had sent to Counsel on 17 June 2022 and 22 June 2022 in which Mr Schofield stated that the Applicant’s dismissal took effect on 2 June 2022.

[16] Mr Schofield gave oral evidence in the following terms: that it “was up to me to get the application filed within time” and that he had received instructions to do so sometime prior to the deadline for filing. Mr Schofield’s evidence was that the Applicant had first spoken with him about his dismissal on 6 May 2022. In oral evidence, Mr Schofield said words to the effect of “reviewing the matter and seeking some advice and later in the piece that we formed the view that we should file the application”.

[17] Mr Schofield could not explain why he had made the error in thinking that the last day for filing was 23 June 2022. In oral evidence, he said words to the effect of “I can’t explain the error, I don’t understand how I got it wrong” and that he had a “brain fade”. When asked why he did not file the application later on 22 June 2022, when he realised he had made an error, he gave evidence that he was not aware that he could file after hours and up until 11:59pm and therefore filing within time.

[18] Having considered that evidence, I find that the reason for the delay was two errors made by Mr Schofield. The first one in his miscalculating or missing the deadline for filing and the second error was that he was ignorant of the ability to file out of hours, and that he could have filed within time by filing by 11:59pm on the night of 22 June 2022.

Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect

[19] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on 27 April 2022 and that his dismissal took effect on 1 June 2022. Therefore, the Applicant had the benefit of the full period of 21 days to lodge the unfair dismissal application.

The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal

[20] The Applicant alleged that he took action to dispute the dismissal and submitted that he approached his solicitor well prior to the date of dismissal on 1 June 2022. The Applicant’s solicitor gave evidence that the Applicant had first approached him for advice on 6 May 2022.

[21] The Respondent submitted that the Applicant did not adduce any evidence that he took other steps to dispute his dismissal and that this favours an extension being refused.

[22] Having regard to the evidence, I find that the Applicant sought legal advice on 6 May 2022 and further assistance from his solicitor in filing an application for an unfair dismissal remedy with the Commission.

I must now consider the prejudice to the employer (including prejudice caused by the delay)

[23] The Applicant submitted that, even if the relevant facts are made out by the Respondent, such prejudice is not material because the Applicant seeks an extension of time of only one day, meaning that the prejudice to the Respondent is insignificant.

[24] The Respondent submitted that, even if the degree of prejudice which would be suffered by a respondent is slight or non-existent, a respondent has a right to rely on time limits under the Act and the absence of prejudice does not necessarily favour granting an extension of time. Nevertheless, the Respondent submitted prejudice to the employer is a neutral consideration in this matter.

[25] In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.

I will now turn to the merits of the application

[26] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

[27] In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

[28] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position

[29] The Applicant submitted that the extent to which extending time or not extending time would be unfair to any other person (other than the Applicant) is not known. The Applicant instead submits that not extending time would extinguish rights of the Applicant unfairly.

[30] The Respondent submitted that it is not fair for the Applicant to be granted an extension of time in circumstances where other employees of the Respondent were also required to comply with time limits for filing and have done so. It submitted that this favors an extension being refused.

[31] No relevant evidence was submitted in relation to the question of fairness as between the Applicant and other persons in similar positions. Accordingly, I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises.

I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings

[32] As set out by the Full Bench at [13] in the decision of Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, 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. 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.

[33] There is no dispute that the Applicant was made aware of his dismissal on 27 April 2022, that he had engaged a solicitor prior to the 1 June 2022 effective termination date and that he first sought advice regarding his dismissal on 6 May 2022 and sometime thereafter, but before the expiry of the 21 days within which to file, he gave instructions to Mr Schofield to lodge an application for an unfair dismissal remedy with the Commission. The Applicant further spoke with Mr Schofield on 17 May 2022 and from this date, Mr Schofield received documents to assist in the preparation of advice for the Applicant. The Applicant gave clear and timely instructions to Mr Schofield to file his application. He is entitled to rely on Mr Schofield to carry out those instructions. That Mr Schofield had a “brain fade” and that he was ignorant of the ability to file after hours, meaning he could have filed the application within time, should not disadvantage the Applicant by denying him the opportunity to seek an unfair dismissal remedy in the Commission. The Applicant was entitled to rely on his solicitor. That the Applicant did not receive the professional service for which he is presumably being charged is not his fault.

[34] Having regard to all the matters I am required to take into account under section 394(3) and all the materials before the Commission, on balance, I am satisfied that there are exceptional circumstances.

Conclusion

[35] Being satisfied that there are exceptional circumstances, I may consider whether to allow a further period for the application to be made.

[36] Having regard to those exceptional circumstances and the object stated at section 381(2) of the Act to ensure that a “fair go all round” is accorded, the Commission is satisfied that it is appropriate to extend the period for the application to be made to 23 June 2022.

[37] Accordingly, the matter will be programmed for conciliation.

COMMISSIONER

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