Allen Sebastian v Veolia Environmental Services (Australia) Pty Ltd [2024] FWC 3593

1 Fair Work Act 2009 s.394—Unfair dismissal Allen Sebastian v Veolia Environmental Services (Australia) Pty Ltd (U2024/13690) DEPUTY PRESIDENT BELL MELBOURNE, 24 DECEMBER 2024 Application for an unfair dismissal remedy - Extension of Time - Application dismissed [1] On 15 November 2024, Mr Allen Sebastian (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges he was unfairly dismissed by Veolia Environmental Services (Australia) Pty Ltd (Respondent) on 2 October 2024. [2] Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Based on the material before the Commission, the Applicant made his unfair dismissal application 23 days outside the 21-day timeframe. The Commission must therefore determine in the first instance if an extension of time should be granted for the making for the application. [3] Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 394(3) of the Act. Section 394(3) states: “(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (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.” [2024] FWC 3593 DECISION -- 1 of 6 -- [2024] FWC 3593 2 [4] In order for the Commission to allow this further period of time, it must be satisfied that there were ‘exceptional circumstances’ which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group (2011) 203 IR 1 at [13]). [5] Directions were issued to the parties on 22 November 2024 to set a timetable down for the determination of that issue. Those directions required the Applicant to file and serve witness statements and any other supporting material regarding the extension of time question by 4 December 2024. He did not do so, however in subsequent correspondence with chambers, he stated that (among other matters) “I do not wish to add anything further beyond what was submitted in my initial claim”, being a reference to his Form F2 application. The Applicant enclosed a ‘show cause’ letter and the final letter of termination with his Form F2 application. When did the dismissal take effect? [6] The Applicant’s Form F2 application states the dismissal took effect on Wednesday, 2 October 2024. The employer’s response states the dismissal took effect on the same day, and also attached a letter of dismissal dated that day which stated that a decision had been made “to terminate your employment with Veolia effective 2 October 2024.” I am satisfied that the date the dismissal took effect was 2 October 2024. [7] As the application was out of time, each of the matters in s 394(3) above must be considered in assessing whether there are exceptional circumstances.1 I set out my consideration of each matter below. Section 394(3)(a) - Reason for the delay [8] In the Applicant’s Form F2 application, he states in response to question 1.4 (which asks if the form filed within the 21-day period): “Dear Fair Work Commission, I am writing to explain why I am submitting my application for unfair dismissal after the 21-day deadline. Unfortunately, when I was dismissed from my job, I was unsure of the process and did not have the correct information regarding my rights or the timeline to apply for unfair dismissal. In the weeks following my termination, I was focused on processing the situation emotionally and trying to understand what had happened. I was also uncertain about the steps I needed to take and needed time to gather the necessary information. It wasn’t until I spoke with my family and friends that I fully understood the process and the importance of lodging a claim within the required timeframe. I deeply regret not acting sooner and I sincerely apologize for any inconvenience this may cause. This delay was not intentional, but rather a result of my confusion and the distress I was experiencing at the time. -- 2 of 6 -- [2024] FWC 3593 3 I kindly ask for your understanding and consideration of my situation, as I believe my dismissal was unfair, and I would greatly appreciate the opportunity to have my case reviewed. Thank you for your time and consideration. Kind regards, Allen Sebastian” [9] In his oral submissions before me, the Applicant also indicates he was initially “embarrassed” by the conduct leading to his dismissal, which I infer added to his hesitation in making an application for an unfair dismissal remedy. I have considered the Applicant’s material. While I acknowledge the hardships and challenges he has presumably been dealing with since his dismissal, I do not consider that they rise to a level to adequately explain the delay in making the unfair dismissal application. [10] While I accept that the Applicant did not appear to have been specifically aware of the statutory time limits to make an application for an unfair dismissal remedy, it is well established that ignorance about such matters is not itself a matter supportive of a finding of exceptional circumstances. Mere ignorance of the statutory time limit is not remarkable or, on its own, a factor supportive of an overall finding of exceptional circumstances.2 This is a circumstance shared by many applicants before the Fair Work Commission. [11] In summary, whether taken individually or collectively, I do not consider that the reasons provided by the Applicant are supportive of an overall conclusion of exceptional circumstances. They are matters which weigh against Mr Sebastian’s application and, in light of the length of the delay, weigh strongly against his application. Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect? [12] The Applicant’s Form F2 states he was dismissed on 2 October 2024, and it is clear he became aware of the dismissal on the same day. Therefore, he had the benefit of the full period of 21 days to lodge the unfair dismissal application. [13] I do not consider these are circumstances supportive of an overall finding of exceptional circumstances. Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal? [14] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.3 [15] Other than filing his unfair dismissal application, no matter was drawn to my attention of any relevance. I do not consider that this factor is supportive of a finding of exceptional circumstances, although I will treat this factor neutrally between the parties. -- 3 of 6 -- [2024] FWC 3593 4 Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)? [16] No matter of prejudice was drawn to my attention. In all the circumstances, I do not find that any material prejudice would be suffered by the respondent if an extension of time were granted. [17] In Jovcic v Coopers Brewery Limited [2023] FCA 797, Besanko J stated that “The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.” While his Honour’s observations were made in the context of an application to extend time for an appeal (in which exceptional circumstances were not required), I nonetheless consider that they are generally informative for an application to extend time under s 394. [18] The mere absence of prejudice is not, of itself, a matter supportive of a conclusion that exceptional circumstances exist such that time should be extended. I do not consider that this factor is supportive of a finding of exceptional circumstances but neither does it point against it. I treat the factor neutrally. Section 394(3)(e) - What are the merits of the application? [19] On the limited material before me, it appears that each side has a differing version of the events leading to the termination of the employment, albeit more so in the characterisation of the conduct, rather than the fact of the conduct. At the hearing before me, the parties asked that I simply refer to the fact that the Applicant was dismissed for misconduct without describing the claim and response in any detail. I have done so. [20] Noting that there are some aspects of the factual basis in dispute, it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”4 and the same applies to s 394(3)(e). [21] Notwithstanding those observations, the limited material proffered by the Applicant suggests his case may not be strong. The Applicant was dismissed on 4 weeks’ notice because the Respondent was satisfied he had engaged in serious misconduct. On my review of the material, the Applicant’s primary contention appears to be that the dismissal was harsh and was a disproportionate response to conduct that (he largely admits) was engaged in, although in a contested hearing there may be differing evidence going to degree. The Applicant also states that the conduct occurred out of work at a private event and he has apologised for it. In my view, the merits of the application are matters that weigh against a finding of exceptional circumstances, although noting the early stage of the matter, I will treat this factor neutrally between the parties. Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position [22] Neither party raised any relevant matter before me to indicate any issue of fairness between the Applicant and other persons in a similar position. [23] For the purpose of this application, I consider that this is a matter to be treated neutrally. -- 4 of 6 -- [2024] FWC 3593 5 Are there exceptional circumstances? [24] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above. [25] 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.5 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.6 [26] The absence of any satisfactory explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. 7 [27] I have set out my findings for each of the factors in s 394(3)(a) – (f) above. [28] When having regard to all of the matters listed at s 394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute. Conclusion [29] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order8 to this effect will be issued in conjunction with this decision. DEPUTY PRESIDENT Appearances: S. Allen appearing on his own behalf J. Micallef and S. Maddern appearing for the respondent Hearing details: -- 5 of 6 -- [2024] FWC 3593 6 2024 Melbourne (by video link via Microsoft Teams): December 23. Printed by authority of the Commonwealth Government Printer <PR782833> 1 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 2 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23]. 3 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. 4 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]. 5 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 6 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 8 PR782837 -- 6 of 6 --