Aden Jack Von-Peppa v The Trustee For Mega Variety [2024] FWC 1576

1 Fair Work Act 2009 s 365—General protections Aden Jack Von-Peppa v The Trustee For Mega Variety (C2024/2024) COMMISSIONER LIM PERTH, 17 JUNE 2024 Application to deal with contraventions involving dismissal – application made out of time – no exceptional circumstances – application dismissed. 1. Introduction [1] This decision concerns Mr Aden Jack Von-Peppa’s (Applicant) application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act). [2] The Trustee for Mega Variety (Respondent) employed the Applicant as a Store Manager on 6 November 2023 on a casual basis. The Applicant resigned his employment on 4 April 2024. The Applicant alleges that the Respondent dismissed him in contravention of Part 3-1 of the Act. [3] The application was filed with the Fair Work Commission on 28 March 2024. Section 366 of the Act provides that a s 365 application must be made within 21 days after the dismissal took effect; or, pursuant to s 366(1)(b), within such further period as the Commission allows under s 366(2). [4] In the Applicant’s case, the period of 21 days ended at midnight on 25 March 2024. The application is therefore 3 days out of time. [5] The Applicant seeks a further period for his application to be made under s 366(2). The Respondent opposes this request. The Respondent also objects to the application on the basis the Applicant was not dismissed. It is uncontroversial that where a matter involves an out of time issue and jurisdictional objection, the Commission must resolve the out of time issue first.1 [6] The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must take into account the factors in ss 366(2)(a)–(e) of the Act. [2024] FWC 1576 DECISION -- 1 of 7 -- [FWC] 2024 1576 2 [7] I conducted a hearing on 13 June 2024. At the hearing, the Applicant represented himself and gave evidence in support of his case. Mr Avinash Chandra, Director for the Respondent, represented the Respondent but did not lead evidence or make submissions. [8] Prior to the hearing of the matter, my chambers constructed a paginated court book consisting of submissions and evidence of the parties. The court book was tendered into evidence with the consent of both parties. References to evidence are by way of the relevant page number in the court book. [9] Having considered the evidence of the parties and the factors in s 366(2) of the Act, I do not find that there are exceptional circumstances that justify an extension of time. [10] The detailed reasons for my decision follow. 2. Evidence and consideration [11] Under s 366(1) and (2) of the Act, the Commission may allow a further period for an application made under s 365 to be made if the Commission is satisfied that there are exceptional circumstances. [12] It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.2 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.3 [13] In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2): (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a similar position. [14] Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.4 [15] I set out my consideration of each matter below. 3.1 Reason for the delay -- 2 of 7 -- [2024] FWC 1576 3 [16] For the application to have been made within 21 days after the alleged dismissal took effect, the Applicant needed to lodge by midnight on 25 March 2024. The delay is the period commencing immediately after that time until 28 March 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.5 [17] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.6 [18] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.7 [19] The Applicant’s case is that he did not file his application late – he filed his application within the 21-day deadline, but due to formatting issues with his application, he had to withdraw his application, re-format it, then re-submit it. The Applicant says that the Commission did not notify him of this until after the 21-day deadline.8 [20] However, upon review of the material that the Applicant submitted, this is not an accurate depiction of what occurred. On 15 March 2024, the Applicant called the Fair Work Ombudsman, where he spoke with an Assessment Officer.9 The Assessment Officer appears to have taken the Applicant’s oral statement, which the Assessment Officer then reduced to a written document and provided that document to the Applicant for his approval on 16 March 2024. The document relevantly details the Applicant’s issues as being “unfairly dismissed” and being underpaid.10 [21] On 28 March 2024, the Applicant filed a s 365 application via the Commission’s online lodgement service on its website. A handwritten Form F80 seeking a waiver of the application fee with the Fair Work Commission was attached to the s 365 application, as was a PDF of a Form F8 that had been completed by hand. By this point, the 21-day deadline had already passed. The Form F8 attached to the s 365 application is dated 26 April 2024.11 It states that the date of the dismissal was 4 April 2024.12 The Form F80 is dated 25 April 2024.13 These are obviously mistakes and are taken to be references to March 2024. [22] On 3 April 2024, the Fair Work Commission wrote to the Applicant to inform him that his s 365 application had been received. On 12 April 2024, a Case Manager with the Fair Work Commission wrote to the Applicant and informed him that one of the attachments filed with his s 365 application was locked and inaccessible to the Commission.14 The Applicant subsequently filed a converted document. [23] The Applicant confirmed during the hearing that he had provided to my chambers all the emails and documents he had. [24] During the hearing, the Applicant asserted that after 16 March 2024 he had engaged with phone discussions with ‘someone’ but could not give details about who he had spoken with, what agency they were with or the content or dates of those discussions. The Applicant also asserted that he had exchanged several emails with ‘someone’, but again, could not provide any details. -- 3 of 7 -- [FWC] 2024 1576 4 [25] I asked the Applicant what led him to file his section 365 application. The Applicant asserted that ‘someone’ had given him documents, which he had filled out and returned. He repeatedly said that he did not remember the details of the events or conversations leading up to him filing his application with the Fair Work Commission. I also asked the Applicant if it was safe to assume that he had been told by ‘someone’ to fill out forms with the Fair Work Commission either on, or before, 25 March 2024 given that the Form F80 waiver is dated 25 March 2024 in his handwriting. The Applicant again asserted that he did not know and/or could not remember. [26] Considering the evidence, I make the following findings: (a) The Applicant spoke with an Assessment Officer at the Fair Work Ombudsman on 15 March 2024. I accept that he thought he was pursuing a claim regarding his alleged dismissal. (b) The Applicant filled out the Fair Work Commission application for a fee waiver on 25 March 2024. If he had filed his s 365 application that day, his application would have been in time. (c) The Applicant filled out the Form F8 the next day on 26 March 2024. He then filed his s 365 application with the Fair Work Commission on 28 March 2024. (d) Given that the Applicant lodged his s 365 application via the Commission’s online lodgement service, the Applicant’s assertion that he simply filled out forms that ‘someone’ sent to him and sent them back to the same ‘someone’ cannot be sustained. It is clear that at some point, someone at the Fair Work Ombudsman informed him, either verbally or through email, that to pursue a claim regarding his alleged dismissal he needed to file an application with the Fair Work Commission. (e) I find that the Applicant was informed that he needed to file with the Fair Work Commission either on, or before 25 March 2024, which was the last day in the 21-day deadline for lodgement. [27] I appreciate the Applicant is a layperson and found the distinction between the Ombudsman and the Commission confusing. However, I can only assess the evidence that the Applicant provides. The written evidence shows that by 25 March 2024 at the latest, the Applicant knew he needed to make an application with the Commission. The Applicant has not provided any probative evidence or emails with the Ombudsman explaining how or when he came to know this. He has also not satisfactorily explained why he filed his application on 28 March 2024 given he had filled out his Commission fee waiver application on 25 March 2024 and had the opportunity to file his application within time. [28] Accordingly, I find that the Applicant has not provided an acceptable explanation for the delay in filing his s 365 application. This is a factor that weighs against the Applicant in this matter. 3.2 Action taken to dispute the dismissal -- 4 of 7 -- [2024] FWC 1576 5 [29] I accept that the Applicant filed a complaint with the Fair Work Ombudsman (albeit mistakenly) to challenge his dismissal. This is a factor that weighs in favour of a finding of exceptional circumstances. 3.3 Prejudice to the employer (including prejudice caused by the delay) [30] Neither side advanced arguments on this point. The absence of prejudice, however, is not itself a factor that would warrant the grant of extension of time. This is a neutral factor in this case. 3.4 Merits of the application [31] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.15 Further, the primary consideration is whether the Applicant has an arguable case.16 [32] In his s 365 application, the Applicant contends that he was subject to harassment and bullying; “falsifying his employment”; and dismissal after he spoke with the Fair Work Ombudsman. [33] The Respondent denies these assertions. [34] In cases such as this one where there is not a full examination of the substantial merits, it is appropriate to assess any limited material through the prism of viewing the Applicant’s case at its most favourable.17 [35] I find that given the limited evidence provided by the Applicant and the Respondent’s denial of his allegations, I am unable to make an assessment on the merits of his matter. I find that this is a neutral factor in assessing whether there are exceptional circumstances. 3.5 Fairness as between the Applicant and other persons in a similar position [36] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances. 4. Conclusion [37] Having considered all the circumstances of this matter and the factors in s 366(2), I am not satisfied that there are exceptional circumstances. I find that the majority of the considerations in s 366(2) are neutral, with s 366(2)(a) weighing against and s 366(2)(b) weighing in favour of a finding of exceptional circumstances. [38] My chambers prompted the Applicant in writing repeatedly in the lead up to the hearing to explain the steps between his call with the Ombudsman on 15 March 2024 and the filing of his s 365 application on 28 March 2024.18 The Applicant was also given ample opportunity to explain the reason for the delay during the hearing. Ultimately, the Applicant did not take up -- 5 of 7 -- [FWC] 2024 1576 6 those opportunities to produce any evidence or material capable of demonstrating a sufficient reason for the delay. [39] As I am not satisfied that there are exceptional circumstances, the application must be dismissed. An order to this effect will issue separately.19 COMMISSIONER Appearances: A J Von-Peppa, Applicant A Chandra for the Respondent Hearing details: 2024. Perth, by video using Microsoft Teams: 13 June. Printed by authority of the Commonwealth Government Printer <PR776114> 1 Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234 (Catanzariti VP, Asbury DP, Lake DP). 2 Nulty v Blue Star Group Ltd [2011] FWAFB 975 at [13]. 3 Ibid. 4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [39]. 5 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 (Watson VP, Smith DP) at [12]. 6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [38]. 7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [40]. 8 Digital Court Book (DCB), page 38. -- 6 of 7 -- [2024] FWC 1576 7 9 DCB, page 62. 10 DCB, pages 65-69, 11 DCB, page 11. 12 DCB, page 7. 13 DCB, page 56. 14 DCB, pages 12-13. 15 Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14. 16 See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34]. 17 Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 at [42]. 18 DCB, pages 73, 104. 19 PR776115 -- 7 of 7 --