Wojcik v Region Peak Transport [2016] FWC 405 (22 January 2016) [2016] FWC 405 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal W Wojcik v Region Peak Transport T/A Rocbrix Pty Ltd (U2015/16633) SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 22 JANUARY 2016 Application for relief from unfair dismissal. – Extension of time – granted. [1] On 9 December 2015, Mr W Wojcik applied, pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Region Peak Transport (RPT) T/A Rocbrix Pty Ltd. [2] In his application, Mr Wojcik contended that the termination of his employment was communicated to him and had effect on 26 October 2015. [3] A s.394 application in respect of the termination of employment must be made, in accordance with s.394(2) of the Act “(a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3) of the Act.” [4] If Mr Wojcik’s employment was terminated on 16 October 2015, the 21 day period in s.394(2)(a) of the Act required the application to be made by Mr Wojcik by 16 November 2015. Being made on 9 December 2015, the application is 23 days out of time and it is necessary to determine whether the application should be accepted out of time, on the basis that the Commission is satisfied that there are exceptional circumstances, taking into account the statutory matters in s.394(3) of the Act: “(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.” [5] Whilst there are also issues as to whether there was a termination at the initiative of the employer, with RPT contending that Mr Wojcik remains employed but absent on Workcover, only the matter of lodgement within time is before me for determination. The termination at the initiative of the employer issue will be determined as one of the matters in the full determination of the merits, if the matter proceeds to an arbitration on the merits, given the substantial overlap of evidentiary material. [6] The evidence and materials before me went substantially to the termination issue and whether Mr Wojcik was unfairly dismissed. The materials filed did not separately address the evidentiary issues going to the statutory considerations in s.394(3) of the Act in relation to the extension of time nor provide submissions specifically directed to them. [7] On examining the materials filed, and in particular RPT’s statement of evidence which went to whether Mr Wojcik’s employment was terminated by RPT, I found it necessary to send a memorandum to the parties on 21 January, 2106 to clear up an apparent misapprehension that the Conference/Hearing on 22 January, 2016 would deal with the question of whether Mr Wojcik’s employment was terminated and/or the merit of Mr Wojcik’s application. The memorandum, which was sent by email to RPT on 21 January, 2016 and provided in person to Mr Wojcik on 22 January (because he did not have access to email or facsimile). At the conclusion of the memorandum, I sought advice from RPT as to whether it opposed the extension of time application, a matter which was not addressed in the materials it filed. RPT advised on 21 January 2016 that it did oppose the extension of time. As a result the Conference/Hearing of 22 January, 2016 proceeded to allow the parties to advance evidence and submissions in relation to the extension of time this morning and determine that issue. [8] This decision is limited to the extension of time issue and is based on the materials filed, subject to their evidentiary value, and the evidence and submissions put on 22 January, 2016. Decision [9] I find that: (a) There is an acceptable and compelling explanation for delay by Mr Wojcik in making his application late – on 9 December 2015. That explanation is found in the circumstances facing Mr Wojcik at the time of and in the weeks following the termination of his employment, involving the passing of his mother and her funeral on 23 October 2015, the passing of his brother around a week later and the physical and mental health of Mr Wojcik at the time of and immediately following the cessation of his employment on 26 October 2015, evidenced by medical consultations and medical certificates supporting a Workcover claim which was made on 29 October 2015. Mr Wojcik was also required to attend medical appointments and was dealing with his difficult financial circumstances and matters concerning his mother’s and brother’s affairs between 26 October and 9 December 2015. I accept that the combination of the personal circumstances confronting Mr Wojcik, his medical conditions and the time required to attend to matters in relation to his families’ affairs and medical consultations reasonably explain his failure to lodge his application until 9 December 2015 and constitute exceptional circumstances for the late lodgement. In my view, these personal circumstances reasonably and fully explain the delay by Mr Wojcik in making his application. Although Mr Wojcik met with solicitors on or shortly after 26 October 2015 in relation to a WorkCover claim, his evidence, which I accept, is that no discussion about a s.394 claim or application occurred during the course of that meeting. (b) Mr Wojcik was aware of his termination on 26 October 2015. This consideration is of neutral effect for the purpose of my decision. (c) Mr Wojcik did not dispute his termination other than by making his application. His failure to do so, prior to making his application, is reasonably explained by the set of circumstances which lead to the late lodgement. (d) RPT does not claim any prejudice from the acceptance late of the application. (e) There is a wide divergence in the evidence as to the merit of the claim, which it is not appropriate or necessary to resolve for the purpose of the extension of time application. 1 This consideration is neutral to the determination of the extension of time application; and (f) Nothing in the material raises an issue as to fairness as between Mr Wojcik and other persons in a similar position. [10] On the evidence and submissions directed to the extension of time issue, I am satisfied that there are exceptional circumstances, found in the combination of personal and medical circumstances confronting Mr Wojcik shortly before and more relevantly in the month and a half immediately following the termination, which warrant the extension of time for Mr Wojcik, until 9 December 2015, to lodge his application. An order to that effect will be separately published. [11] Mr Wojcik’s application will be returned to the Unfair Dismissals Unit, which will arrange conciliation in relation to the application. RPT and Mr Wojcik will be contacted in due course with a time and date for a conciliation conference. SENIOR DEPUTY PRESIDENT Appearances : Mr Wojcik on his own behalf. Mr Gregson on behalf of the Respondent. Hearing details: 2016. Melbourne: January 22. 1 H Kyvelos v Champion Socks Pty Limited, Print T2421 at para 14. 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