[2021] FWC 765
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Gary Power
v
CCL Secure Pty Ltd
(U2020/14859)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 FEBRUARY 2021

Application for an unfair dismissal remedy – application made outside of the time prescribed in s.394(2) – consideration whether to allow a further period within which application should be made – whether there are exceptional circumstances – not satisfied there are exceptional circumstances – no basis to consider exercising discretion to allow a further period to make application – application dismissed.

[1] Mr Gary Power (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). The Applicant was, until his dismissal, employed by CCL Secure Pty Ltd (Respondent). He had been employed with the Respondent since approximately 1 February 1999 and had previously been employed by related bodies corporate of the Respondent since 1988. 

[2] On 29 April 2019, the Applicant and the Respondent entered into a written separation agreement that provided, inter alia, that the Applicant’s employment would terminate on 31 December 2020 following an 18 month notice period. 1 However, the Applicant was dismissed by the Respondent summarily on 9 July 2020. The reason given by the Respondent for the dismissal, in short compass, was serious, wilful and persistent breaches of the contract of employment and separation agreement.

[3] The Applicant lodged this application by email on 16 November 2020. Section 394(2) of the Act provides 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 30 July 2020. The application was therefore lodged some three and a half months after that period had elapsed. The Applicant asks the Commission to allow a further period for the application to be made under s.394(3).

[4] The matter was listed for a case management conference on 4 December 2020, on which date I made directions for the filing of submissions addressing the issue of whether a further period should be allowed for the application to be made. I heard the matter via video link on 12 February 2021. The Applicant appeared on his own behalf during which he gave evidence and made submissions in support of his application for an extension of time. Mr Minucci of counsel was granted permission pursuant to s.596 of the Act to appear on behalf of the Respondent and made submissions opposing the grant of an extension of time. The Respondent led evidence from Ms Alexis Talcott-Curry, the Respondent’s Assistant General Counsel.

[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 

[6] 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 

[7] 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.

[8] Section 394(3) allows the Commission to exercise a discretion to grant an extension of time, if the Commission is satisfied there are exceptional circumstances taking 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.

[9] 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.

Preliminary matter

[10] On 15 January 2021, the Respondent applied pursuant to s.594 of the Act for a confidentiality order covering all material produced to the Commission in these proceedings including all parts of the evidence filed by the parties, any document filed or tabled and any transcript of proceedings. I declined to make the order in the terms sought by the Respondent on the basis that it was too broad but indicated I would consider an amended application appropriately refined and identifying the particular parts of the evidence it said ought be confidential. At the hearing of the matter the Respondent pressed its application for a confidentiality order in relation to specific aspects of the documentary evidence. For his part, Mr Power did not oppose the application in the terms outlined during the hearing. In the circumstances, I determined that it was appropriate to make an order in the terms sought by the Respondent, which was issued following the hearing. 4

Reason for the delay

[11] The Act does not specify what reason or reasons for delay might fall 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. 5 

[12] The Applicant raised several matters as reasons for the delay in lodging the application. First, the Applicant contends the Respondent’s conduct in offering to avoid litigation and settle the matter was a duplicitous tactic deployed to disqualify him from applying for an unfair dismissal remedy. 6 I find this explanation unpersuasive and consequently I am not satisfied that the reason given provides a satisfactory explanation for the delay. I accept the Respondent’s submission that the fact that without prejudice negotiations were ongoing did not prevent Mr Power from filing his application for relief from unfair dismissal in a timely fashion. In short, nothing the Respondent did vis--vis the without prejudice settlement discussions prevented the Applicant from exercising his right to make an application. That the Applicant believed he was participating in good faith negotiations which might resolve his dispute with the Respondent and avoid litigation does not provide an acceptable explanation for the delay. Notwithstanding the discussions, there remained at all relevant times a dispute between the Applicant and the Respondent about the circumstances of the dismissal. The Applicant could have, but did not, at any time much earlier than 16 November 2020, lodged an application to protect his interests.

[13] Secondly, the Applicant cites that which amounts to an allegation of representative error as explaining the delay. In essence, the Applicant submits that his legal representatives did not suggest the possibility of an application for an unfair dismissal remedy, but that he raised the prospect with them in October 2020. 7 For its part, the Respondent contends that there is no evidence of any representative error.8 The Applicant’s solicitor was not called to give evidence and no application has been made for an order that his solicitor attend as a witness in these proceedings. Absent evidence from the Applicant’s solicitor, I am not prepared to make a finding of representative error. It would be unfair to do so, a point accepted by the Applicant. Indeed, beside the Applicant’s evidence, there is no material before me that would lead me to conclude that representative error occurred in this case. However, even if I were to accept that representative error contributed to the delay between the period 30 July 2020 and 16 October 2020, when the Applicant says he woke in the middle of the night with the thought of applying to the Commission for an unfair dismissal remedy and subsequently discussed this prospect with his solicitor,9 the Applicant has provided no acceptable explanation for that part of the delay between 16 October 2020 and 16 November 2020, the date the application was lodged.

[14] Thirdly, the Applicant contends that medication he was taking had a negative impact on his cognitive abilities. The Applicant’s evidence is that he was prescribed Valium and Imoclone to assist with stress resulting from his dismissal. The Applicant says that these medications had a marked effect on him, that his brain was dulled and that he could not think clearly. 10 In the circumstances of this case, this explanation can be attributed little weight. While I accept at a general level that the dismissal brought about a level of stress and that medication prescribed to the Applicant to deal with that stress is likely to have had some impact on his cognitive function, there is no medical or other probative evidence offered which might suggest that the Applicant’s cognitive function was impaired to such a degree so as to effect his capacity to function. Much less is there medical evidence which might explain that the failure or inability to make the unfair dismissal remedy application within the time prescribed is caused by that impairment. In any event, that the Applicant self-evidently had capacity to instruct his legal representatives throughout the period suggests that the effect was plainly not so great as to prevent him from lodging an unfair dismissal application within the time prescribed.

[15] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation the delay. Consequently, this is a matter that weighs against the Applicant in this case.

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

[16] The Applicant had been on notice about the potential of summary dismissal since 24 April 2020. 11 The Applicant was notified of the dismissal on 9 July 2020,12 the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. That this is so weighs against the Applicant because he had the benefit of the full 21-day period to lodge an application.

Action taken to dispute the dismissal

[17] The Applicant engaged legal representation in or around May 2020. 13 The Applicant and the Respondent have been engaged in without prejudice negotiations in an attempt to resolve all outstanding matters between them since 9 July 2020, the date of dismissal, up to the date of the application.14

[18] As mentioned above, the Applicant’s evidence was that the possibility of an application to the Commission first occurred to him on 16 October 2020. This application was lodged one month later, on 16 November 2020. The Applicant says that when he raised the prospect of such an application with his solicitor, he was advised that a late application would be unsuccessful. 15 On discovering the possibility of an application to the Commission, it would have been reasonable, particularly given advice from his solicitors that he was out of time and notwithstanding their advice on its chances of success, to take immediate steps to lodge such an application.

[19] I am satisfied that the Applicant took some steps to dispute his dismissal by engaging in without prejudice negotiations with his former employer. On the Applicant’s own evidence, he sought advice about an unfair dismissal application on or around 16 October 2020. However, he did not take any immediate steps to lodge this application after 16 October 2020 and only did so well after the time for lodging the application had expired.

[20] Though the steps taken to dispute the dismissal weigh in the Applicant’s favour, I consider this factor considered in the totality of the circumstances weighs neutrally because of the absence of any prompt steps to lodge the application after he had been advised he was out of time to make an unfair dismissal remedy application on or around 16 October 2020.

Prejudice to the employer

[21] The Respondent contends that the Applicant’s delay in filing the application gives rise to a general presumption of prejudice against the Respondent. 16

[22] I accept that there will be some prejudice to the Respondent caused by the delay of the Applicant in lodging the application if it is to be allowed to be lodged within a further period, but this prejudice is not significant.

[23] I consider this factor to be neutral in the circumstances.

Merits of the application

[24] I am required to take into account the merits of the application in considering whether to extend time. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s.396(a) makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. Nonetheless an assessment of the merits is required. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[25] It is the Respondent’s contention that the merits of the application are not strong. 17 It submits that the Applicant was a senior executive employee, subject to express confidentiality and restraint obligations, who acted in direct contravention of those obligations.18

[26] In short compass, the Applicant denies that he acted in breach of his confidentiality and restraint obligations.

[27] Overall, on the available material, it appears that the substantive merits of the application turn on 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 except to say the Applicant has at least an arguable case, and the Respondent a prima facie defence. It appears to me therefore, that the application is not without merit. Although not without merit, the strength of the Applicant’s case is not so obvious as would warrant weighing significantly in the Applicant’s favour. The weight attributable in the Applicant’s favour is not significant.

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

[28] 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. However, cases of this kind will generally turn on their own facts.

[29] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[30] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise, except in exceptional circumstances, the right to bring the action will be lost.

[31] Having regard to the matters I am required to take into account under s.394(3), I am not satisfied that there are exceptional circumstances in this case. In my view, this is so, whether the various circumstances are considered individually or together. There is no satisfactory explanation for the delay. This factor weighs significantly against a conclusion that there are exceptional circumstances. In the circumstances of this case, the absence of a reason for the delay outweighs the merits matter pointing the other way. I have concluded that the application for a remedy is not without merit but this weighs only slightly in favour of the Applicant. The other matters which I am required to take into account either weigh against a conclusion that there are exceptional circumstances or are neutral for the reasons stated. When I consider each of the matters set out in s.394(3), in the context of the evidence in this case, attribute weight as I have done and look at those circumstances individually and collectively, I am not satisfied that there are exceptional circumstances. 

[32] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to consider exercising my discretion to allow an extension of time. I decline to allow a further period under s.394(3). The application to allow a further period within which to lodge the application is dismissed. The substantive application for an unfair dismissal remedy must also be dismissed.

al of the Fair Work Commission with the Deputy President's signature

DEPUTY PRESIDENT

Appearances

G Power on his own behalf
M Minucci
of counsel for the Respondent

Hearing details:

2021
Melbourne (via video-link)
12 February

Written submissions:

Applicant, 18 December 2020, 20 January 2021 and 12 February 2021
Respondent
, 15 January 2021

Printed by authority of the Commonwealth Government Printer

<PR726949>

 1   Outline of submissions of the Respondent at [6]

 2   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

 3   Ibid

 4   PR726920

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

 6   Form F2 at Q1.5

 7   Applicant’s outline of submissions dated 17 December 2020 and Exhibit 1

 8   Outline of submissions of the Respondent at [21]

 9   Applicant’s outline of submissions dated 17 December 2020

 10   Applicant’s outline of submissions dated 17 December 2020

 11   Outline of submissions of the Respondent at [22]

 12   Letter of termination dated 9 July 2020

 13   Exhibit 2 at [22]; Annexure ATC-10

 14   Outline of submissions of the Respondent at [16]-[17]

 15   Form F2 at Q1.5

 16   Outline of submissions of the Respondent at [33]

 17   Outline of submissions of the Respondent at [32]

 18   Ibid