Brima v Broadspectrum [2016] FWC 3225 (20 May 2016) [2016] FWC 3225 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Joseph Brima v Broadspectrum T/A Broadspectrum (U2016/5014) VICE PRESIDENT WATSON MELBOURNE, 30 MAY 2016 Application for relief from unfair dismissal – Application for extension of time for lodgement – Whether exceptional circumstances – Fair Work Act 2009 , s.394. [1] This decision is an amended version of a decision given in transcript on 20 May 2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Joseph Brima in relation to the termination of his employment with Broadspectrum. [2] The application is made under section 394(3) to extend the period for filing an unfair dismissal application. Mr Brima lodged his unfair dismissal application on 1 March 2016 and the evidence before me establishes that the termination date was 18 January 2016. The application, therefore, is approximately 20 days outside the 21-day time limit. [3] I am required by subsection 394(3) to have regard to a number of circumstances and to only extend the time if I am satisfied, taking into account those circumstances, whether there are exceptional circumstances involved in this matter. There is a fair bit of history to the matter and the circumstances are obviously unusual. I propose to consider each of the factors that I am required to take into account. [4] The first is the reason for the delay. It appears to me on the evidence that Mr Brima only became aware of his dismissal on his return to Australia on 2 February this year. However, the employer, Broadspectrum, had communicated to him in the normal manner that his employment would be terminated on the grounds of abandonment on 18 January if he did not contact them between the date of the letter of 13 January and 18 January. He did not make any contact in that time and the company, therefore, regarded his employment as terminated at that date. [5] Part of the reason for the delay is the lack of knowledge of that termination until 2 February. However, that lack of knowledge is because Mr Brima was overseas and was not checking his email. [6] I consider that it should have been clear to Mr Brima on 2 February that his employment had been terminated. It should have been clear to him from the correspondence, from the termination payments that had been made to him and from the discussions that he held with Mr Cogan on that date. [7] In his conversation on 2 February, Mr Cogan agreed to look into the reasons for the termination given the concerns expressed by Mr Brima. However, I do not consider on the evidence that Mr Cogan's comments in any way affected the fact that the company regarded his employment as terminated and had communicated that clearly to him. [8] Part of the reason for the delay advanced by Mr Brima is that he wanted to await the outcome of his representations to Mr Cogan and he did not receive a response from Mr Cogan until 15 February. However, in my view, that does not justify why he could not have looked into the prospect of challenging the dismissal and taken steps immediately once he became aware of the dismissal on 2 February. [9] There is then the period from 15 February to 1 March. That is said to be occasioned by the need to look at avenues to challenge the termination and to get advice. Mr Brima did obtain advice. He said that once he became aware of what was required, he then set about filling out an unfair dismissal application and filing it. [10] I have regard to all those circumstances regarding the reason for the delay and the different periods involved. The time limit for lodging the application was on or about 8 February and it was filed, as I said, some 20 days later on 1 March. [11] The next factor I am required to have regard to is whether Mr Brima became aware of the dismissal after it had taken effect. As I have said already, Mr Brima did not become aware of his dismissal until he accessed his email on return to Australia on 2 February, so I have regard to that factor. [12] The next factor is any action taken by Mr Brima to dispute the dismissal and I think a fair reading of the evidence would be that Mr Brima did seek to challenge or dispute his dismissal when he rang Mr Cogan on 2 February. He then awaited a response to his dispute over the dismissal, which occurred on 15 February. [13] The next factor is prejudice to the employer, including prejudice caused by the delay. I consider that there is some prejudice in this case beyond an application that would have been lodged within time. Circumstances in Papua New Guinea have changed. A considerable period has occurred between these events in January and February, and this hearing now, so I consider that there is some prejudice. I do not regard it as significant. [14] The next factor concerns the merits of the application. The merits would involve a consideration of the history going back to October 2015 and meetings conducted between the company and Mr Brima, his absence from work after that period, but the reason for the termination, as is clear from the correspondence, was his lack of response to communications and the view the company took that he had abandoned his employment. [15] It appears to me that there was a failure to respond to communications occasioned by Mr Brima's absence overseas and that it would have been reasonable and proper for him to have made arrangements of one sort or another to have his communications checked or accessed in that period and avoid the consequences of his failure to respond. It is no surprise that his absence and failure to respond to communications would be regarded as abandonment of his employment. In all the circumstances, but only on a very preliminary basis, I do not consider that the merits of Mr Brima's application are very strong. [16] The final factor is fairness as between Mr Brima and other persons in a similar position. I am not aware of others in a similar position and I do not consider that that factor is significant in this matter. [17] Having regard to all those matters and all the circumstances of the application, I am not satisfied that there are exceptional circumstances justifying the extension of time being granted in this matter. There are not understandable reasons for the delay and the unfair dismissal application lacks merit. In my discretion, I decline to grant the extension of time and the application for an extension of time is dismissed. VICE PRESIDENT Appearances : Mr J. Brima on his own behalf. Ms E. Roberts on behalf of Broadspectrum. Hearing details: 2016. Melbourne – Video Link to Sydney. 20 May. Final written submissions: Mr J. Brima on 16 May 2016. Broadspectrum on 5 May 2016. Printed by authority of the Commonwealth Government Printer <Price code A, PR580612>