Vella v Airport Data Electrical [2017] FWC 448 (30 January 2017) [2017] FWC 448 FAIR WORK COMMISSION REASONS FOR DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Steve Vella v Airport Data Electrical (U2016/14319) DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 30 JANUARY 2017 Application for an unfair dismissal remedy; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to allow a further period within which application may be made should be exercised; extension of time refused; application dismissed. Introduction [1] Mr Steve Vella (Applicant) commenced employment with Airport Data Electrical (Respondent) as a full time permanent employee on 19 August 2002. He was employed in the position of a Data Electrician. The Applicant was dismissed from his employment with the Respondent on 12 October 2016, effective immediately. 1 On 30 November 2016, the Applicant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. [2] On 20 January 2017, I determined that I was not satisfied that there were exceptional circumstances which would warrant a consideration of whether I should exercise my discretion to allow Mr Vella an additional period within which to lodge his application for an unfair dismissal remedy. 2 These are the reasons for that decision. [3] Applications for an unfair dismissal remedy must be made within 21 days after a dismissal took effect or in such further time as the Fair Work Commission (Commission) may allow. Based on the dismissal taking effect on 12 October 2016, an application for a remedy should have been lodged by no later than 2 November 2016. The application was therefore lodged outside of the time prescribed and was, in effect, lodged 28 days after the last day on which such an application could have been made. [4] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are: the reason for the delay, whether the Applicant first became aware of the dismissal after the date it took effect; any action taken by the Applicant to dispute the dismissal; prejudice to the Respondent including prejudice caused by the delay; the merits of the application; and fairness as between the Applicant and other persons in a similar position. [5] It is clear from the structure of s.394(3) that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. [6] 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 or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) that there are exceptional circumstances. [7] I will turn then to the particular matters to which regard must be had. Reason for the delay [8] Firstly, as to the reason for the delay. When considering the reason for the delay, the explanation given by the Applicant needs to be a credible or acceptable explanation. The reason or reasons need to provide an acceptable explanation for the whole of the period of the delay. Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 3 [9] The Applicant provided a number of reasons for the delay in lodging his unfair dismissal application. One of the reasons is that the Applicant says that since his dismissal, he has been suffering from depression and sleep deprivation for which he has received medical treatment for. The Applicant indicated that after his dismissal he visited a doctor on four separate occasions and says that he was given medical prescriptions for both of his conditions 4 . The Applicant did not produce any medical evidence in support of his medical condition and has not revisited the doctor since his last visit, which he says was approximately five weeks after his dismissal. 5 There is no probative evidence about the impact of the Applicant’s medical conditions on his cognitive capacity or how this may have impacted on his capacity to lodge the application within the time prescribed, and so the reason proffered does not explain the delay. [10] The Applicant also submits that a further reason for the delay in lodging his unfair dismissal application is that sometime in late November, he became aware that employees of the Respondent were performing overtime and by that time, the prescribed time limit of 21 days had already lapsed. 6 The Applicant maintained that had he known about the overtime earlier, he would have lodged his application earlier. This explanation turns out to be less than credible. [11] During the proceeding, the Applicant conceded that he became aware that employees of the Respondent were performing overtime two weeks after his dismissal, within the time prescribed to lodge an application for an unfair dismissal remedy, and not in late November as indicated in his earlier evidence and as sworn in his witness statement. 7 There was a least some information that was available to the Applicant within the timeframe, which could have caused him to question whether the redundancy was genuine. [12] On the Applicant’s evidence, he also had a conversation with his supervisor two weeks before his dismissal wherein he was told that there was work scheduled for him for the next two weeks and perhaps longer, 8 and on the day of his dismissal, wherein his supervisor expressed surprise about the Applicant’s dismissal given the work schedule. 9 These conversations combined with the Applicant’s conversation referred to earlier with some work colleagues two weeks after his dismissal, provided the Applicant with enough information to enable him to question his dismissal on redundancy grounds. Each of these events occurred within the time prescribed to make an application for an unfair dismissal remedy. They do not therefore provide any explanation for the delay. [13] It was also submitted that the Applicant was too “scared and nervous” to attend the Commission, 10 and that the Applicant was unaware of the time prescribed to lodge an application for an unfair dismissal remedy, and that it was brought to his attention after his friend, Ms Pauline Chivell, made a phone call to the Commission. 11 None of this provides an acceptable explanation for the delay. Decisions of this Commission make clear that ignorance of the statutory timeframe does not provide an acceptable explanation for delay. [14] None of the reasons above provide an acceptable or credible explanation for the delay and that is a matter that weighs against the Applicant. Whether Applicant first became aware of the dismissal after the date it took effect [15] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect. The evidence is that the Applicant was advised by Mr Michael Anthony, Managing Director of the Respondent, at approximately 8.30am on 12 October 2016 in a meeting that his position was no longer required due to downturn in work. His dismissal was effective immediately. 12 It is not in dispute that the Applicant was not provided with a termination letter from the Respondent and that the Applicant was paid in lieu of notice. [16] The Applicant therefore had the benefit of the full 21 day period within which to lodge the application. In the circumstances, I consider this factor weigh against the Applicant. Action taken by the Applicant to dispute his dismissal [17] Turning next to the question of the action taken by the Applicant to dispute his dismissal. The evidence was that the Applicant made a telephone call to his union, who advised him to contact the Respondent and request clarification of the letter given to him, which incorrectly indicated that the Applicant had resigned 13 , rather than indicating that the Applicant was made redundant. The Applicant’s evidence is that Mr Anthony did not respond and so the union delegate dealt with the issue. 14 [18] The Applicant’s evidence is that he did not seek legal advice but rather consulted a medical practitioner a week after he was notified of his dismissal. 15 The Applicant’s evidence is that he was referred to a psychologist/psychiatrist but that he refused this assistance as he instead wanted to speak to people around him. 16 Again, no medical evidence was provided to support his application. The Applicant’s evidence is that he was in “shock” and after 14 and a half years of service he was devastated, and could not believe what Mr Anthony had said and done. 17 [19] The Applicant’s evidence is that on his second visit to the doctor, which was approximately 2 weeks after his dismissal, the doctor pointed him in the direction of the Fair Work Commission and the Applicant was told to file an unfair dismissal application. 18 [20] The Applicant’s support person indicated that she advised the Applicant, on the day of his dismissal, to contact “Fair Work”. 19 [21] None of the matters referred to above show any step taken by the Applicant to dispute his dismissal. In the circumstances, this is a matter that weighs against the Applicant. Prejudice [22] Turning to the question of prejudice, the mere absence of prejudice is not a factor which weighs in favour of an Applicant who seeks a further period within which to lodge an application for a remedy. [23] The Respondent did not, however, make any submissions in relation to the question of prejudice. It is not suggested that the Respondent is or will be prejudiced. [24] In the circumstances, I am prepared to weigh this consideration in favour of the Applicant. Merits of the application [25] As to the merits of the application, a hearing to consider whether time should be extended is essentially an interlocutory hearing, which does not generally permit a substantive testing of the merits of the particular application and so, in most cases the best that can be done is to take the Applicant's case at its highest and assess the merits from that perspective. That is, to look at the Applicant's case in the most favourable light and make an assessment about the merits. On the Applicant’s case there is some material which might suggest that his dismissal was not for the reasons of redundancy. However, there is an absence of direct material which would support his case and relies (at this stage) solely on the Applicant’s version of several discussions with his supervisor and former colleagues. As noted earlier, some of the Applicant’s evidence given initially was not credible and was recanted. [26] In the circumstances, although his application on the merits might be arguable, the Applicant’s credibility as a witness is questionable. Accordingly, I consider this factor to be neutral. Fairness as between the Applicant and other persons in a similar position [27] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. [28] Neither party made any material submissions on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case. Consequently, this matter is a neutral consideration in the present circumstances. Conclusion [29] The statutory time limit that is applicable to the exercise of a person's right, to bring an unfair dismissal remedy application is an expression of the parliament's intention that rights should be exercised promptly. That is because it is important that there is some certainty, particularly in relation to an employer who has taken a particular step, that they know that after the expiration of 21 days, in the case of a termination, that that will be the end of the matter. Time limits seek to balance the right to bring an action by an aggrieved former employee and the desirability of prompt action and prompt resolution of disputes. [30] It is for that reason, the parliament has chosen to establish a time period and that time period is 21 days. However, the parliament also recognises that there will be some cases where a late application should be accepted and it has set out the test of exceptional circumstances and the matters that need to be taken into account. [31] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period. [32] As I have indicated, the Applicant has not provided an acceptable explanation for the whole period of delay. He was notified of his dismissal on the day it took effect, and he took no step to dispute the dismissal. The absence of prejudice weighs in favour of the Applicant but the merits and fairness considerations are both neutral. [33] As I have indicated, when I consider at the evidence in this case and the circumstances that I need to take into account collectively or individually, I am not satisfied that exceptional circumstances exist. [34] As a consequence, I do not need to consider whether I should exercise my discretion. The application to allow a further period within which the Applicant’s application should be lodged is refused. It is therefore unnecessary to consider the Respondent’s further jurisdictional objection relating to genuine redundancy. [35] The application is dismissed. An order giving effect to this decision is separately issued in PR589778 . DEPUTY PRESIDENT Appearances : Mr S Vella on his own behalf assisted by Ms P Chivell . Ms A Costa on behalf of the Respondent. Hearing details: 2017. Melbourne 20 January 1 Exhibit 1 at [5]. 2 Transcript PN201. 3 See Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] – [33]; See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963 . 4 Transcript PN132. 5 Transcript PN134. 6 Exhibit 1 at [13]. 7 Transcript PN137 – PN142. 8 Exhibit 1 at [10]. 9 Transcript PN38. 10 Transcript PN192. 11 Transcript PN188. 12 Transcript PN38. 13 Transcript PN53. 14 Transcript PN55. 15 Transcript PN98, PN101. 16 Transcript PN133. 17 Applicant’s Outline of Submissions dated 22 December 2016 at q5. 18 Transcript PN119 – PN124. 19 Transcript PN187. Printed by authority of the Commonwealth Government Printer <Price code C, PR589591>