DECISION

Fair Work Act 2009
s.365—General protections

Damien Peirce-Grant
v
Voyager Distributing Co Pty Ltd
(C2020/6443)

Application to deal with contraventions involving dismissal.

[1] This decision concerns an application lodged by Mr Damien Peirce-Grant under section 365 of the Fair Work Act 2009 (Cth) (Act), alleging that he was dismissed by Voyager Distributing Co Pty Ltd (Respondent) in contravention of the general protections contained in Part 3-1 of the Act.

[2] I have determined that the application was filed outside the statutory timeframe and, as I am not satisfied that there are exceptional circumstances, have not allowed an extension of the time for filing pursuant to s.366(2). The reasons for this decision follow.

Context

[3] The evidence of the relevant context is summarised below and is not contentious except where indicated.

[4] Mr Peirce-Grant accepted an offer of employment as Managing Director of the Respondent. Prior to his commencement on 3 February 2020 he was requested to attend a meeting in the United States with Director, Mr Lew, however upon his visa application being declined the Respondent learned that Mr Peirce-Grant had a prior, undisclosed conviction. The Respondent claimed to have withdrawn the original contract and verbally appointed Mr Peirce-Grant as Chief Operating Officer commencing 3 March 2020 as a result. Mr Peirce-Grant maintained it was a “non-disclosable” conviction. He accepted that there was a title change but contended that his contract and duties did not change. 1

[5] On 18 July 2020, Mr Peirce-Grant and Mr Lew had a discussion by telephone. Mr Lew’s account of that discussion was recorded in a subsequent letter as “we discussed your ongoing employment, I raised with you my serious concerns in relation to your dishonesty, performance, attendance at work and behaviour in your role”. 2 Mr Peirce-Grant described the discussion as covering concern for his mental state and health.3 The result of their discussion was that Mr Peirce-Grant was directed to take a period of leave, returning 27 August 2020, in which time Mr Peirce-Grant was to visit his son. Whether Mr Peirce-Grant was to take annual or sick leave was disputed, although upon termination the Respondent agreed to treat the period from then until his termination as sick leave for the purposes of calculating final entitlements. Whether Mr Peirce-Grant was directed or chose to go to Sydney was also disputed. Whatever the case, Mr Lew’s account of this discussion included that he had also requested that Mr Peirce-Grant “think long and hard” about his future and had made it clear that he did not want Mr Peirce-Grant to perform any work during this time.4

[6] On 21 July 2020, Mr Peirce-Grant departed Melbourne for Sydney by car. 5 In his first statement, he described that when he got to the New South Wales border he was advised by border control that he was required to self-isolate for 14 days.6 In his second statement, Mr Peirce-Grant acknowledged that, prior to having left Melbourne, he was aware of the need to isolate for 14 days if he returned to Sydney.7

[7] On 22 July 2020, Mr Peirce-Grant entered New South Wales and proceeded to drive to his home in Sydney via the Broadway Shopping Centre, where he used his company credit card to purchase some supplies from three stores (food, a razor and running shoes). Mr Peirce-Grant claimed that border control had advised that he could “stop at a shop to get supplies to see (him) through the isolation period” and, after doing so, that he then went directly to his home and did not leave his home for 14 days. 8

[8] Also on 22 July 2020, Mr Peirce-Grant received a phone call from Mr Lew. According to Mr Peirce-Grant: he was advised in that call that Mr Lew had “lost trust and confidence” in him because of the failure to disclose his prior criminal conviction and that he was to sign a deed which would entitle him to be “paid generously up until the end of August”; Mr Peirce-Grant asked for the opportunity to respond in writing, and alleged to have been told in response that “this was happening regardless of his comments or responses”. 9

[9] On 23, 24, 25 and 27 July 2020, correspondence ensued between Mr Peirce-Grant and the Respondent or its lawyer. That correspondence included: a proposed deed of release sent by the Respondent’s lawyer; a separate request by Mr Lew to sign the proposed deed by 5pm on 23 July as he wanted to announce Mr Peirce-Grant’s resignation; an enquiry by Mr Peirce-Grant on 24 July as to why his company credit card was not working and about a password change to his company email account; and a follow up by the Respondent’s lawyer with Mr Peirce-Grant on 25 July, seeking his comments on the proposed deed. 10

[10] At 8.59pm on 27 July 2020, the Respondent’s lawyer emailed a letter from Mr Lew to Mr Peirce-Grant at his personal email address and requested that he provide any comments by 4pm the following day. The attached letter had the subject “Termination of your employment” and stated that for the reasons discussed and further set out therein, it was proposed to terminate Mr Peirce-Grant’s employment without notice “as a result of gross incompetence and your deliberate actions to conceal, mislead and deceive the company”. The letter included detail of a series of allegations of dishonesty, poor performance, unauthorised absences from work and inappropriate behaviour. The letter said that Mr Peirce-Grant was afforded this “one final opportunity to respond before we make our final decision” and, if he chose not to respond, did not respond by the deadline, or his response did not alter the Respondent’s view, then his employment would terminate at close of business on 28 July 2020. 11

[11] At 9.10pm on 27 July 2020, the Respondent’s lawyer emailed a “without prejudice” communication to Mr Peirce-Grant, attaching a further draft deed, which was expressed to be open for acceptance until 4pm the following day, 28 July 2020. 12

[12] At 4.03pm on 28 July 2020, Mr Peirce-Grant emailed his response to the Respondent’s lawyer from his personal email. This included Mr Peirce-Grant’s version of events in relation to some of the allegations in the 27 July 2020 letter; stated that Mr Peirce-Grant refuted the allegations and:

“..I have had no response to the question relating to my email account but have now instead had the credit card usage raised as a reason for summary dismissal – again, I refute all allegations regarding this note that I have not had the opportunity nor time to clarify or dispute the now seeming relevant credit card issue, and also that according to your email, is only “new” information – which follows my termination by Mr Lew last Wednesday.

I advised you that I have compiled an extensive chronology of events and fact, and I can confirm that the morphing and constructed reasons provided to me on each occasion to justify the unlawful termination of my employment are false, misleading and defamatory.

I am disappointed that I have not been provided an opportunity to respond to any allegations or concerns prior to my termination, during any time whilst employed at Voyager.” 13

[13] In cross-examination, Mr Peirce-Grant acknowledged that he had read the 27 July 2020 letter and then drafted the 28 July 2020 response extracted in part above. However he denied having knowledge that his dismissal was a “fait accomplis” at that time. He said that he considered there was a “negotiation” which he believed was continuing. 14

[14] At 5.43pm on 28 July 2020, a Ms Kim Davis (Company Secretary of the Respondent) responded to Mr Peirce-Grant’s personal email address. The cover email stated: “We have considered your response below. Please see attached termination of your employment. A courier will attend your home address [..] tomorrow to collect all Voyager property”. A termination letter of same date was attached, with the subject “Termination of your employment without notice”, in which it was stated: Mr Peirce-Grant’s response had been considered; that the response did not alter the preliminary decision and the employment was summarily terminated, effective immediately. An email delivery receipt was in evidence before the Commission. 15

[15] Mr Peirce-Grant said that he checked his phone at 6pm on 28 July 2020 and realised his access to emails, phone and internet connection had been cancelled. 16 The Respondent did not dispute that this is when the disconnection occurred.17

[16] In his first statement, and consistently throughout his evidence to the Commission, Mr Peirce-Grant maintained that he was not able to access data and did not read the 28 July 2020 email and termination letter until his isolation period ended and he was able to get a data card on 5 August 2020. In his first statement, Mr Peirce-Grant’s evidence was that, during his isolation period, there was no internet or landline connection at his Sydney home and so he was reliant on his work mobile phone and data for “all communication”, although he acknowledged that he was able to reactivate a previously used mobile number to make voice calls. 18 At the hearing, Mr Peirce-Grant gave evidence in chief that it was a QMobile sim card (number ending in 008) that he was able to reactivate on the afternoon of 30 July 2020, via an old nokia phone and a makeshift manipulation or manoeuvre he described as a “jerry rig”.19 The QMobile number he said “was not a personal mobile by any stretch” as it belonged to his former employer.20 He carried the QMobile sim card “to plug into my personal mobile which was likely in Melbourne at the time” and which he kept for the sole purpose of checking voicemails and redirecting personal calls given he had been with that employer for 11 years. The third number and personal mobile said to have remained in Melbourne ended in 171. 21 Mr Peirce-Grant produced an NBN “relocation” receipt (dated April 2020, confirming connection to a Melbourne address) and a text message of 8 August 2020 informing his ex-wife that his son should bring an Xbox to visit his home in Sydney as he was “out of internet”.22

[17] By 4.55pm on 29 July 2020, the Respondent’s lawyer had caused two separate couriers to attend Mr Peirce-Grant’s home address in Sydney to collect the company property in his possession. A contemporaneous report was produced by the Respondent which stated that there was no response to the intercom at Mr Peirce-Grant’s home, having made attempts of around 5 minutes on each occasion at 12.30pm and 3.58pm. In his reply statement, Mr Peirce-Grant said that the intercom at his home did not work at the time. His sister filed a witness statement which supported this account and attached a screenshot of communication with a courier on a later date (4 September 2020) in which she informed the courier that Mr Peirce-Grant could be reached on a mobile number (ending in 008) given his intercom still did not work. 23

[18] Also on 29 July 2020, attempts were made to contact Mr Peirce-Grant on a mobile number (ending in 008) at 12.52pm and 3.57pm however “there was no answer” on both occasions and a voicemail was left on the first occasion. 24 In cross-examination, Mr Peirce-Grant’s evidence was that he did not receive the voice message left on 29 July 2020 and that “they were calling a number I don’t use”. He also claimed that voice message(s) left on the 008 number on 29 July 2020 were not retrievable as the sim card was not activated at that time.25

[19] In cross examination, Mr Peirce-Grant accepted that he did not attempt to contact the Respondent’s lawyer or the Respondent by telephone on or after 30 July 2020 once he said he had activated the QMobile 008 sim on the old nokia phone. He said that, once reactivated, the communication he made on this phone number, that he was “not permitted to use”, was to tell his family that he was alive. 26

[20] There were also references in Mr Peirce-Grant’s filed evidence that he had “FaceTime dinners” with his son “throughout” his isolation period and that “people” had made deliveries of food to his home, including his sister who gave evidence she had made “multiple deliveries” during his isolation period. In cross-examination, Mr Peirce-Grant sought to clarify this evidence as being events which pre-dated the removal of his access to work mobile phone and data on 28 July 2020.  27

[21] On 12.03am on 20 August 2020, this application was filed in the Commission. The application identified the effective date of dismissal as 28 July 2020 and that Mr Peirce-Grant was notified on 2 August 2020 (which was later described as an error and revised to 5 August 2020). 28 Mr Peirce-Grant confirmed to the Commission in evidence that he completed the application himself and had not, at that time, engaged the representative who he had named on the application form itself. He said at the time of preparing the application he was not aware that the termination was not effective until he had received the written notice.

Was the application was filed out of time?

[22] Section 366(1) requires that a general protections application involving dismissal:

a) be made within 21 days after the dismissal took effect; or

b) within such further period as the Commission allows having regard to the factors set out in s 366(2).

[23] In this case, there is a dispute about when Mr Peirce-Grant’s dismissal took effect. Accordingly, there is a question as to whether the application was made out of time.

[24] A dismissal takes effect when it is communicated to the employee. Where the communication of the dismissal is in writing, the communication must have been received by the employee in order for the termination to be effective. 29

[25] In the case of a termination by email communication, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual address. 30 In Ayub Trains, a Full Bench held:

“There may be circumstances in which mere receipt of a email may not constitute a reasonable opportunity to become aware of a dismissal – for example when an employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to the delay the effect of the dismissal.” 31

[26] The parties also referred to a single member decision in Roman Sluga v SmartBill Pty Ltd / ID Plate Pty Ltd T/A Telestar Communications. 32 In that case, the applicant was found to have been unaware of the termination email on the day it was sent, and the termination was not effective until the following day when the applicant so became aware.

[27] Mr Peirce-Grant’s representative asked the Commission to find that the termination was not effective until 5 August 2020, when Mr Peirce-Grant said he was first able to access data and email. Specifically, that I should prefer the evidence that Mr Peirce-Grant sent his response at 4.03pm on 28 July 2020, then logged out of his phone, and by the time he attempted to log back in at 6pm that same day he had been cut off from access and was not able to arrange data access until the conclusion of his self-isolation period on 5 August 2020. It was argued that the criticisms of the applicant’s evidence do not take the matter anywhere because the evidence of Mr Peirce-Grant was that he could not access data on his QMobile phone and this evidence was consistent throughout. Further, that prior to 30 July 2020 there was no capacity, given the devices available to him, to make contact with anybody about the negotiation with the Respondent or to find out if a termination letter had been sent to his email - and therefore, at the earliest, 30 July 2020 was the effective date. In the alternative, it was contended that an analysis of Mr Peirce-Grant’s conduct from 28 July 2020 onwards, whether or not he deliberately avoided finding out that his employment ended, ought to take into account the “human dimension” including the context that Mr Peirce-Grant believed a negotiation about his departure was ongoing. 33 The alternative position was that Mr Peirce-Grant could not have received the termination email and letter until 29 July 2020 at the very earliest because it was sent “after hours” on 28 July 2020.

[28] The Respondent argued that the Commission can not be satisfied on the evidence that Mr Peirce-Grant was unable to access and read the termination email and letter until 5 August 2020. It pointed to what it contended were inconsistencies or unexplained matters in Mr Peirce-Grant’s evidence and an absence of records to establish, for example, that a data card was purchased on 5 August 2020, that the QMobile 008 sim card and the personal 171 mobile were not in use on relevant dates and that there was no data capability or usage on the relevant dates. In summary, the Respondent contended that the overwhelming weight of evidence supports the conclusion that Mr Peirce-Grant refused to read the 28 July 2020 termination email and letter because either he was aware that his employment had been terminated on 28 July 2020 or he wanted to avoid finding out that his employment had been terminated. It contended that the effective date of dismissal must be 28 July 2020.

[29] The evidence before the Commission reflects that a final decision to terminate Mr Peirce-Grant’s employment was communicated by the Respondent at 5.43pm on 28 July 2020. The email was delivered to the personal (gmail) email server of Mr Peirce-Grant at that time.

[30] As an initial observation of the evidence, Mr Peirce-Grant’s account was selective and then inconsistent in a number of respects, giving the impression that it was vastly lacking in credit. In cross-examination, he presented as evasive and was often quick to defend his position on critical issues before comprehending the question asked.

[31] It is not contentious, and I accept, that the Respondent’s data and mobile phone service was not available to Mr Peirce-Grant from 6pm on 28 July 2020. This left a limited period of no more than 17 minutes for Mr Peirce-Grant to have accessed the termination email and/or the letter sent at 5.43pm using the Respondent’s data and mobile phone. Mr Peirce-Grant claimed to have “logged out of his phone” after sending the 4.03pm email and did not check it again until 6pm, which is when he realised that he was unable to access data or email and was then unable to access data or email at all until his self-isolation period ended on 5 August 2020.

[32] There is a legitimate question as to whether at least the cover email of 28 July 2020 (which of itself contained unambiguous written notice of termination) was already visible and able to be viewed on the phone after 6pm on 28 July 2020, notwithstanding the cut off from company provided data. In any event, Mr Peirce-Grant has put some source documents in evidence before the Commission, including an internet relocation notice and screenshots of various text messages. However he has not produced any probative evidence to support his claims about the call, message and data activity on the QMobile 008 and personal 171 mobile phone devices (or otherwise), purchase of data on 5 August 2020 or sign in activity for his gmail account for the relevant dates. This information was reasonably available via screen shots, records from telephone providers, a gmail account activity report, bank statement and receipt. Further, the evidence about the reactivated mobile phone service was inconsistent. By way of just two examples:

•  Mr Peirce-Grant told the Commission that the QMobile number ending in 008 belonged to his old employer and was not permitted or authorised for his personal communication. He told the Commission that he was reluctant to use this number, and only used it to communicate with family during the self-isolation period so that they knew he was alive. However his sister provided a screenshot in her evidence which confirmed that some weeks later (as of 4 September 2020) he was still using this 008 number, as she had provided it to a courier in order to reach him regarding a father’s day delivery.

•  Mr Peirce-Grant also told the Commission in cross-examination that he would not have been able to receive a voicemail left at the 008 number by the Respondent’s representative on 29 July 2020 because it was not active at that time, yet earlier had given evidence that he retained the QMobile 008 sim card for inserting to a personal mobile from time to time (and during his time in Melbourne) for the purpose of checking voice mail messages.

[33] By the proposed termination email of 27 July 2020, I consider that Mr Peirce-Grant was very clearly on notice that his employment could (and would, with limited exception) be terminated at close of business on 28 July 2020. I do not accept that the parallel without prejudice communication meant that any ongoing negotiation continued past 4pm on 28 July 2020, which was the expiry of the time for acceptance of that offer. There is no plausible explanation for why, if in truth he had no other means of communication with the outside world beyond his Respondent-provided equipment, at least upon receipt of the 27 July 2020 emails (if not after the discussion with Mr Lew on 22 July 2020), he did not immediately obtain an alternative, independent method of communicating with the outside world (via any of the friends and family who had assisted with deliveries to date, or through an online retail provider with delivery service). Further, in his response to the Respondent of 28 July 2020, Mr Peirce-Grant had the opportunity to but did not request that he be able to retain access to the company network and devices or otherwise notify the Respondent that he may have difficulty in receiving or engaging in communications without access to the company network and devices – if that was indeed the predicament he faced in the likely event that his employment was terminated at close of business on 28 July 2020.

[34] The credibility of this relatively elaborate tale is further challenged by the contention that it was not until 5 August 2020 that Mr Peirce-Grant sought to learn of the outcome in relation to his employment. As of 6pm on 28 July 2020 Mr Peirce-Grant had identified that his access to the company network had been cut off. In any event, he was aware that a final decision was due to be notified to him at close of business on 28 July 2020. He was in fact in possession of a sim card and a device that was able to make telephone calls (he said the device was only modified to working order as of 30 July 2020 - if accepted as the effective date of termination, this would make the application just within the statutory timeframe). Even then, from 30 July 2020, he did not ask his sister or any other person to assist him in communicating with the Respondent to learn of the outcome for his employment or to check his personal email on his behalf. He did not telephone the Respondent’s lawyer, with whom he had been negotiating prior to then and with whom he claims to have believed negotiations were continuing. Those were measures reasonably available to him even on his own account, which he said he did not take.

[35] For completeness, it is apparent on the evidence that, having established that Mr Peirce-Grant arrived in New South Wales on 22 July 2020, he ought to have remained in self-isolation for 14 days until 6 August 2020 (that is, inclusive of 5 August 2020, contrary to that which he consistently maintained in evidence). Further, and again although it was not seriously pressed, given the notification to expect a decision by “close of business” on 28 July 2020, the seriousness of the subject matter and the importance of the outcome to Mr Peirce-Grant, I find it unlikely that he had not attempted to check his email again between 4.03pm and 6pm on 28 July 2020, whilst he retained access to the Respondent’s data and mobile phone service.

[36] Having regard to the evidence that is before the Commission and the absence of probative evidence about critical facts, I consider the only reasonable explanation on the evidence before the Commission is that Mr Peirce-Grant knew that his employment was terminated on 28 July 2020. I do not accept that Mr Peirce-Grant was unable to receive the termination email and letter on 28 July 2020 and, to the extent that Mr Peirce-Grant did not in fact receive it on that date I consider that is due to his own avoidance. Accordingly, the termination was effective on the date that it was communicated being 28 July 2020.

[37] For the above reasons, I find that the effective date of Mr Peirce-Grant’s dismissal was 28 July 2020. The application was lodged by email at 12.03am on 20 August 2020. The period of 21 days ended at midnight on 18 August 2020. The application was therefore filed two days outside the 21 day period.

[38] Having so found, the Applicant asked (in the alternative to his primary argument) that the Commission grant a further period for the application to be made under s 366(2). The Respondent opposed this request.

Are there exceptional circumstances?

[39] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are “exceptional circumstances”. The matters of which I must be satisfied are set out in s.366(2) of the Act.

[40] The exceptional circumstances test establishes a high hurdle for an applicant. 34 In this context, to be exceptional the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.35 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 can be considered exceptional.36

[41] My consideration of the matters set out at s.366(2) follows.

Reason for the delay – s.366(2)(a)

[42] 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” or “credible” explanation. 37 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour.38 Ultimately, it is a question of degree and insight.39

[43] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay. 40

[44] Mr Peirce-Grant asked the Commission to accept that the reason for the delay in filing this application was because he was experiencing difficulties with his internet connection and access to emails during his self-isolation period (which he said was from 22 July to 5 August 2020). It was contended on behalf of Mr Peirce-Grant that his circumstances were out of the ordinary, unusual and unprecedented. In evidence, Mr Peirce-Grant explained to the Commission that, at the time of filing, he understood the last day the application could be filed was 19 August 2020 which he attempted to do, but the email then took some time to send meaning it was filed just three minutes after midnight on 20 August 2020. He also told the Commission in his written and oral evidence that he was stressed by the events leading up to and after his dismissal, and his mental health had declined since moving to Melbourne and over this period. No medical evidence was produced in support of these contentions.

[45] The Respondent argued that the period of the delay was not explained by the self-isolation period and associated circumstances and that, in any event, this affected only a portion of the 21 day statutory period.

[46] I accept that Mr Peirce-Grant experienced personal difficulties in the lead up to and after his dismissal and that at least the initial period following his dismissal until he ended his self-isolation period on 5 August 2020 may have been stressful. However unfortunate, it is not unusual to experience stress following dismissal from employment. Further, Mr Peirce-Grant travelled to Sydney in the knowledge that he would be required to self-isolate for 14 days upon arrival. He was prepared for this, with supplies, deliveries and communication with his family and some friends having been arranged and received during that 14 days. I do not consider the personal stress, difficulty or inconvenience the circumstance of self-isolation may have caused for the first 8 days of the 21 day statutory timeframe to reasonably explain the delay or weigh in favour of a finding of exceptional circumstances in this case.

[47] Neither is ignorance or a lack of understanding of the statutory requirements an acceptable explanation. The Applicant was employed in a senior role with significant responsibility and has demonstrated that he was able to navigate and comprehend information about his options including the statutory timeframe for filing (even prior to the dismissal). His evidence to the Commission was that, as at the time of filing, he did not proceed on the mistaken impression that he had been terminated on the later date of 5 August 2020. To the contrary, he proceeded on the correct assumption that the termination was effective 28 July 2020 and miscalculated the 21 day period as ending on 19 not 18 August 2020. He then waited until the last minute to submit his paperwork meaning it was received after midnight, at 12.03am on 20 August 2020. That he miscalculated the timeframe and then waited until the last minutes of the day to submit his materials does not reasonably explain the delay.

[48] I consider the absence of an acceptable, reasonable or credible explanation for the delay weighs against a conclusion that there were exceptional circumstances in this case.

Action taken to dispute the dismissal – s.366(2)(b)

[49] In respect of s.366(2)(b), I am required to take into account any action taken by the Applicant to dispute his dismissal.

[50] The only evidence before the Commission of any action taken to put the Respondent on notice of an intention to dispute its conduct and proposal to terminate his employment pre-dated the dismissal. There is no evidence of action taken to dispute or challenge the dismissal prior to this application being filed.

[51] This does not weigh in favour of a finding of exceptional circumstances.

Prejudice to the employer – s.366(2)(c)

[52] It was not seriously pressed and I am not able to identify any particular prejudice which the Respondent would suffer. However, an absence of prejudice is not of itself a factor that would warrant an extension of time, nor is it exceptional.

[53] I consider this to be a neutral factor in the present case.

Merits of the application – s.366(2)(d)

[54] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[55] Having examined the evidence before the Commission, it is evident to me that the merits of the application turn on a large number of strongly contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant can at least make out a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time.

[56] Accordingly, I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position – s.366(2)(e)

[57] Applications to extend time generally turn on their own facts. The parties did not draw to my attention any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position.

[58] I consider this to be a neutral consideration in the present matter.

Conclusion

[59] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[60] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. That there is no acceptable, reasonable or credible explanation for the delay in filing the application weighs strongly against the grant of an extension in this case. The remaining factors do not weigh in favour and weigh neutrally. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[61] I decline to grant an extension of time under s.366(2). Accordingly, the Applicant’s application under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

A Rich for the Applicant.
M Minucci of Counsel for the Respondent.

Hearing details:

2020.
Melbourne (by video)
November 25.

Printed by authority of the Commonwealth Government Printer

<PR726814>

 1   Statement of Damien Peirce-Grant dated 25 September 2020 (First Statement of Damien Peirce-Grant) at 4, 6 and 8; Annexures B and E to F8A Employer’s Response filed 18 September 2020 (Respondent’s Response).

 2   Annexure B to Respondent’s Response.

 3   First Statement of Damien Peirce-Grant at 10.

 4   First Statement of Damien Peirce-Grant at 7 and 10; Annexure B to Respondent’s Response.

 5   Clarified on transcript of hearing at PN247.

 6   Second Statement of Damien Peirce-Grant dated 7 October 2020 (Second Statement of Damien Peirce-Grant) at 3.

 7   Second Statement of Damien Peirce-Grant at 5.

 8   Witness Statement of Kim Davis, attachment KD4; First Statement of Damien Peirce-Grant at 5 and 11-12.

 9   First Statement of Damien Peirce-Grant at 14.

 10   First Statement of Damien Peirce-Grant at 14-21.

 11   Annexure B to Respondent’s Response.

 12   First Statement of Damien Peirce-Grant at 21.

 13   Annexure D to Respondent’s Response.

 14   Transcript of hearing at PN231, 310 and 311.

 15   Annexure E to Respondent’s Response.

 16   First Statement of Damien Peirce-Grant at 23.

 17   Transcript of hearing at PN509.

 18   First Statement of Damien Peirce-Grant at 13 and 25; the work mobile phone number being that ending in 384, see Transcript of hearing at PN161.

 19  Transcript of hearing at PN159.

 20   Transcript of hearing at PN166 and 167.

 21   Transcript of hearing at PN153.

 22   Second Statement of Damien Peirce-Grant at 1, 8 and Annexures A and D.

 23   Statement of Angela Grant dated 8 October 2020 at 5 and Annexure B1.

 24   Annexure F to Respondent’s Response.

 25   Transcript of hearing at PN320 and 326.

 26   Transcript of hearing at PN294 and 295.

 27   Second Statement of Damien Peirce-Grant at 6; Statement of Damien Peirce-Grant at 12; Transcript of hearing at PN266-267 and 273.

 28   Second Statement of Damien Peirce-Grant at 2.

 29   Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [17] (Ayub Trains).

 30   Ibid at [50].

 31   Ibid at [50].

 32   [2015] FWC 8871.

 33   Gisda Cyf v Barratt [2010] UKSC 41, [2010] 4 All ER 851.

 34   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

 35   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 (Perry) at [21].

 36   Ibid.

 37   Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd [2018] FWC 7355 at [7].

 38   Stogiannidis at [39].

 39   Green v Bilco Group Pty Ltd [2018] FWC 6818 at [8].

 40   Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33]; Perry at [23].