Aaron Baynes v Pulse Collaboration Systems Pty Limited T/A Pulse Collaboration Systems [2020] FWC 2684

1 Fair Work Act 2009 s.394—Unfair dismissal Aaron Baynes v Pulse Collaboration Systems Pty Limited T/A Pulse Collaboration Systems (U2020/298) DEPUTY PRESIDENT HAMILTON MELBOURNE, 22 MAY 2020 Application for unfair dismissal remedy - jurisdiction – discussion of law on procedural difficulties and new material - extension of time. [1] On 8 January 2020, Mr Aaron Baynes (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. [2] It is agreed that the applicant was terminated and/or resigned on 14-15 February 2019.1 The applicant was terminated by the employer on 14 February 2019, and resigned by email on 15 February 2019. The application was filed on 8 January 2020, so the application is over 10 months out of time. As the application was more than 21 days after the dismissal, the application must be dismissed unless an extension of time is granted. The employer objected on the grounds that the matter was out of time, and on the basis that the applicant had resigned,2 but focused its submissions on the issue of extension of time. These extension of time objections are dealt with in this decision. [3] The applicant submits that the reason for the late application is that he was subjected to blackmail, extortion, and death threats from the employer. Pulse Collaboration Systems (the employer) denies the allegations. It opposes an extension of time being granted. [4] I have taken account of all submissions and evidence. The applicant and Mr Smallwood gave sworn evidence. Mr Barwick for the employer cross examined the applicant. Mr Smallwood was not questioned about his evidence by the applicant. The employer made an F1 application but did not press it during oral and written submissions. [5] An extension of time hearing was held by teleconference on 17 April 2020, by way of determinative conference consistent with s.399 of the Act, both of which were agreed.3 In any event, the applicant decided not to cross examine, and nothing would be gained on his part by a hearing in person. 1 Digital Court Book, 33. 2 Ibid, 27. 3 Audio Recording - Extension of Time Hearing, dated 17 April 2020 at 1.38. [2020] FWC 2684 DECISION -- 1 of 16 -- 2 Outline of Submissions [6] A summary of the submissions received by the applicant and the employer are attached to this decision.4 The Act [7] Section 394 of the Act provides: “394 Application for unfair dismissal remedy (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. Note 1:Division 4 sets out when the FWC may order a remedy for unfair dismissal. Note 2:For application fees, see section 395. Note 3:Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part. (2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3). (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.” 4 Appendix 2 – Summary of Submissions. -- 2 of 16 -- 3 Decision Late materials [8] Mr Baynes referred in his oral submissions to emails sent which were not in the court book forwarded to the parties for the conference. Subsequent inquiries identified these as documents which were possibly contained in a law.rar file sent by email dated and received by Chambers on 17 April 2020 at 03:28 pm. I am not sure if they were actually attached, and whether they were also served on the employer. The applicant stated that he wished to rely on these emails. The employer opposed the admission of these documents. [9] I gave the opportunity to the applicant to forward these emails again, subject to later argument about whether or not they should be admitted, and their relevance. [10] This matter has been procedurally involved because of the need to communicate on a regular basis with the applicant in an attempt to ascertain what documents he is seeking to rely on, to obtain copies of them, and to ensure that they are served on the employer. The applicant arguably did not meet the direction issued on 11 March 20205 that he serve submissions and documents by 19 March 2020. This led to difficulties and correspondence to clarify exactly what he claimed to rely on.6 If he did meet the direction, he provided the material in a .rar format which is not accepted by the Commission’s system for technical reasons it is not necessary to canvass. [11] Secondly, a court book was provided to the applicant on 16 April 2020,7 and he corrected it,8 but later claimed it was not complete. An email was sent to Mr Baynes requesting further details of the documents not contained in the court book.9 Mr Baynes forwarded an email which attached a document list and a screen shot of an email sent from Victoria Police and second email containing a compressed video file.10 Mr Baynes was advised that the screen shot of the email from Victoria Police was included in the court book, and that there were difficulties with embedding the compressed video-file to the court book.11 Mr Baynes did not indicate that the court book was other than this deficient, although it did not contain a number of documents which he later sought to rely on and insisted should be considered by the Commission. These are documents outlined below in the law.rar file attached to the email dated 19 March 2020 in discussing the court book. Mr Baynes should have corrected the court book fully, rather than partially correcting it. This caused difficulties for the Commission and employer. [12] Thirdly, on the day of hearing the applicant concluded his submissions by referring to several emails which were not in the court book. These documents were identified by the applicant as being contained in the law.rar file. At the conclusion of the hearing, Mr Baynes forwarded an email which contained a screen shot of the email sent to the Commission and the employer on 19 March 2020. The screen shot in the email shows a forwarded email 5 Notice of Listing dated 11 March 2020 at 11:12 am. 6 Letter from Respondent to Applicant dated 19 March 2020. 7 Email from Fair Work Commission dated 16 April 2020 at 12:41 pm. 8 Email from Applicant dated 16 April 2020 at 01:55 pm. 9 Email from Fair Work Commission dated 16 April 2020 at 03:08 pm. 10 Emails from Applicant dated 16 April 2020 at 09:15 pm and 09:16 pm. 11 Email from Fair Work Commission dated 17 April 2020 at 08:53 am. -- 3 of 16 -- 4 containing a file called Applicant Document List and a law.rar file, sent in response to the email requesting Mr Baynes to provide further details of documents not contained in the Court Book. The screen shot depicts the law.rar opened and appears to contain a number of documents.12 This email referred to in the screen shot dated 16 April 2020 and sent at 09:13 pm was not received by Chambers. [13] Fourthly, the Applicant was asked whether he wished to rely on the materials contained in the law.rar file to which he advised he did.13 I then sought the views of the employer and they objected to the Applicant being allowed to re-submit and rely on the evidence contained in the law.rar file.14 [14] Fifth, my Chambers issued further Directions15 to the Parties containing instructions on the re-submission of the law.rar file, and submissions from the Parties concerning whether the applicant should be able to re-file the documents referred to in the law.rar file. [15] Sixth, on 22 April 2020, the Applicant re-filed the documents in a .zip format entitled law-2.zip. This file was received by Chambers.16 The .zip file contained a file named “REDACTED” which contained several empty files. The Applicant contacted my Chambers to confirm that the file had been received. The applicant was asked about the folders containing no documents and whether the Applicant was now only seeking to rely on folders which contained documents. The Applicant confirmed that he was not seeking to rely on the documents that were contained in the “REDACTED” folder. My Chambers requested the Applicant to clarify this point by email to both Chambers and the employer which the Applicant complied with.17 [16] Finally, there was further correspondence about whether or not certain new documents that Mr Baynes sought to rely on were included in the file of new documents the Commission forwarded to the parties. Mr Baynes confirmed that the new file was accurate.18 [17] The requirements of natural justice were discussed by the Full Bench in Peter Viavattene v Health Care Australia19 in the following terms: “[28] It is clear that members of the Commission are bound to act in a judicial manner and the principles of natural justice are applicable to hearings before the Commission. The term ‘natural justice’ in the context of administrative decision making has been equated to an obligation to act fairly or to accord procedural fairness. The requirements of natural justice or procedural fairness are not prescribed in a fixed body of rules. What is required is judicial fairness and what is fair in one case may be quite different from what is required in another. 12 Screen shot contained in email from Applicant dated 17 March 2020 at 03:29 pm. 13 Email from Fair Work Commission dated 20 April 2020 at 12:22 pm, email from applicant dated 20 April 2020 at 12:41 pm. 14 Email from Respondent dated 20 April 2020 at 02:50 pm. 15 Directions issued to Parties dated 21 April 2020. 16 Email from Applicant dated 22 April 2020 at 12:23 am. 17 File Note dated 22 April 2020 at 09:30 am, email from Applicant dated 22 April 2020 at 09:58 am. 18 Email from Applicant dated 20 April 2020 at 11:05 am. 19 [2013] FWCFB 2532. -- 4 of 16 -- 5 [29] The Commission’s obligations regarding the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:  is fair and just;  is quick, informal and avoids unnecessary technicalities;  is open and transparent; and  takes into account equity, good conscience and the substantial merits of the case. [30] These obligations may be seen as incidents of a general duty on the Commission to ensure a fair hearing. The concept of a fair hearing is fundamental to the justice system and is at the very heart of the Commission’s obligations to the parties who appear before it.” (references omitted) [18] There is an obligation on an applicant to comply with Commission directions, and to provide material on time and in a form which can be read, and to properly serve material on time on other parties, although case management was in the past a secondary priority to the attainment of justice. In Queensland v. J.L.Holdings Pty Limited20 Dawson, Gaudron and McHugh JJ said: “Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.” [19] J L Holdings was applied by a Full Bench of the Commission in Ghalloub v. Aon Risk.21 It was discussed and partly overruled by the High Court in Aon Risk Services Australia Limited v. Australian National University,22 in which Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ said that ‘all matters relevant to the exercise of the power to permit amendment should be weighed’, rather than a priority being given to the attainment of justice: “An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases.23 On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of 20 (1996-97) 189 CLR 146. 21 PR956665. 22 [2009] HCA 27, 111-113. 23 See John v Federal Commissioner of Taxation (1989) 166 CLR 417; [1989] HCA 5; Imbree v McNeilly (2008) 82 ALJR 1374 at 1385-1386 [45] per Gummow, Hayne and Kiefel JJ; 248 ALR 647 at 659; [2008] HCA 40. -- 5 of 16 -- 6 delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future. A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy.24 It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.” [20] In Angelo Coco v Thuringowa Enterprise Centre Incorporated t/a The North Queensland Small Business Development Centre25 a Full Bench of the Commission applied Aon Risk: “[43] In Aon Risk Services Australia Limited v Australian National University the High Court emphasised that “[s]peed and efficiency, in the sense of minimum delay and expense” are essential elements of the just resolution of proceedings, and that not only the cost but the inconvenience and stress caused to parties are important considerations when considering a procedural motion likely to cause significant delay in the conduct of a matter. These considerations are imported into s.577 of the Act, which requires the Commission to perform its functions and exercise its powers in a manner that is, among other things, “quick”. In refusing to admit evidence which would have further postponed the hearing and determination of a proceeding which had already been attended by significant delay, we consider that the Commissioner acted consistently with these principles. The decision to refuse to admit Ms Gadsby’s witness statement was a discretionary one, and we do not consider that any appellable error can be identified in that decision.” [21] Aon Risk establishes that the Commission may not simply dismiss late material, if that is what it is, because of breach of directions, or because there is some inconvenience and difficulty caused to justice and the employer, or because a party is procedurally difficult to deal with or uncooperative. Case management would be considerably easier if the Commission could. Many individual grievance matters in the Commission raise difficult case management issues because of chaotic behaviour and submissions, or other reasons. Having regard to the authorities above the resolution of these case management issues can be highly complex in themselves, let alone resolving the primary issue between the parties. I also note that in both Aon Risk and J L Holdings references are made to the award of costs as a means of achieving redress where a party is disadvantaged by late amendments of a case, while the ability of the Commission to award costs is limited, which may suggest greater Commission scope for refusing new material. 24 J. A Jolowicz, On Civil Procedure (Cambridge University Press, 2000) 79. 25 [2014] FWCFB 5648. -- 6 of 16 -- 7 [22] Having regard to s.577 of the Act, all matters relevant to the exercise of the power to permit amendment or late material must be weighed. In present circumstances there was no radical change of pleadings as in cases cited above, rather there were difficulties in obtaining details and copies of what the applicant relied on. It is unclear whether the late materials were served on time on the Commission and employer, but if they were served they were in a form which was not readable for technical reasons. The applicant submitted in oral submissions that this was the fault of the Commission and employer, and was not his fault. There were other difficulties such as the delay in notifying the Commission that the court book was allegedly not complete. The delay and inconvenience were limited although not insubstantial, in the order of a period of under two weeks while the new material was put in, and then its precise nature was clarified yet again, and submissions were developed by the parties and provided in relation to that new material. Then the new material and submissions had to be considered by me. The applicant arguably made the administration of justice more difficult, and left the employer with something of a ‘moving feast’. In all the circumstances I have decided to allow the applicant to introduce and rely on the new documents, subject to issues such as relevance. The employer had the opportunity to put its case, and did so. It did not request the opportunity to put further witness evidence as a result of the new documents, although it was given the opportunity in directions.26 Authorities [23] The Full Bench in Nulty v blue Star Group Pty Ltd27 considered what the term “exceptional circumstances” means as it arises pursuant to s.366 which is relevant to s.394 of the Act. The Full Bench said: “[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. [14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who 26 Employer Further Submissions, filed 29 April 2020. 27 [2011] FWAFB 975. -- 7 of 16 -- 8 is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance. [15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” [24] In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank the majority said: “The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.”28 Section 394(3)(a) – Reason for delay [25] Mr Baynes gave sworn evidence to the effect that he was scared and threatened by Mr Smallwood, which was denied in sworn evidence by him. My Baynes alleges:  That he was “subject to blackmail, extortion and death threats” by Mr Smallwood;  He was “scared to make a claim right away” as Mr Smallwood had told him he was going to ruin his life;  It became known to him after he left employment that Mr Smallwood “had begun defaming me and trying to ruin my life by telling a false story” alleging sexual harassment and aggression by the Applicant toward another employee;  He reported matters to the Police, “which has been actioned by the police”; and  The effect of these matters on his mental health, life and ability to feel safe.29 [26] These allegations are serious in nature. In Briginshaw v. Briginshaw30 the High Court said: “The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be 28 [2015] FWCFB 287, [12]. 29 Digital Court Book, 51. 30 (1938) 60 CLR 336. -- 8 of 16 -- 9 found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”31 [27] Turning to deal with the late material, this is the following material contained in the law-2.zip file that was received by the Commission on 22 April 2020: Folder 2 – All pay slips  Last pay slip Folder 3 – Letter of offer, Contract of employment  Letter of offer  Job description – junior project manager Folder 4 – Emails between A. Baynes & T. Lalchere  Email 1: Email dated 25 March 2019 from A. Baynes to R. Smallwood  Email 2: Email dated 27 March 2019 from T. Lalchere to A. Baynes  Email 3: Email dated 27 March 2019 from A. Baynes to T. Lalchere  Email 4: Email dated 27 March 2019 from A. Baynes to T. Lalchere  Email 5: Email dated 8 April 2019 from T. Lalchere to A. Baynes  Email 6: Email dated 17 April 2019 from T. Lalchere to A. Baynes  Email 7: Email dated 26 April 2019 from T. Lalchere to A. Baynes  Email 8: Email dated 26 April 2019 from A. Baynes to T. Lalchere  Email 9: Email dated 5 August 2019 from T. Lalchere to A. Baynes  Email 10: Email dated 1 July 2019 from A. Baynes to T. Lalchere  File Note of A. Baynes: Re: L. MaCay, D. Vitancio, R. Udovich Folder 6 – Screenshots of messages between A. Baynes & M. Nicholson  Sub-Folder 6.1 – Contained x3 images  Sub-folder 6.2 – Contained x2 images  Sub-folder 6.3 – Contained x3 images  Sub-folder 6.4 – Contained 1 image  Sub-folder 6.5 – Contained 1 image 31 Ibid, 361-2. -- 9 of 16 -- 10 Folder 14 – Deed of release 1  Deed of release Folder 15 – Deed of release 2  Deed of release Folder 16 – Response from Goldsmiths Lawyers Re: Defamation Concern Notices  Letter dated 2 September 2019 from B. Goldsmith Folder 18 – Concern Notices Defamation Concern Notice to M. Nicholson  Defamation Concern Notice to R. Smallwood 49 Folder 20 – Email from Y. Nisanov  Email from Y. Nisanov to A. Baynes dated 23 September 2019 [28] The employer objected to some of this evidence and submitted that much of the evidence is not relevant.32 Some of this material is inadmissible, because it is in confidence proposals for settling the matter. Even if I took it into account it does not appear relevant. The letter of offer, payslip, job description do not take the matter much further.33 The emails,34 dated 25 March to 26 April do not appear to be relevant. They refer to a number of matters including the purported resignation of Mr Baynes, Mr Baynes offering to make an apology to Ms Nicholson on 25 February 2020 and attaching a draft apology letter, and arrangements for a deed of release. There are also documents which show a friendly relationship between Mr Baynes and Ms Nicholson including various social engagements such as Latin dancing and the National Gallery of Victoria.35 This again does not assist me in resolving the issues I am currently dealing with. Details of settlement discussions and offers are not admissible, and even if they were do not assist me.36 I agree with the employer objection to the file note of Mr Baynes, because Mr Baynes had the opportunity to put this material to Mr Smallwood, and did not.37 Mr Smallwood gave unchallenged sworn evidence that he did not threaten Mr Baynes, and it is, with respect, not enough to offer a document which claims that he did. Mr Baynes was given the opportunity bring witnesses to the events that he claims occurred, and he did not. I have to deal with the case as it was brought by Mr Baynes. In any event the offer of an ‘apology’ by Mr Baynes on his own evidence may suggest some arguable culpability on his part rather than the black and white scenario that he appears now to suggest. What would he be apologising for? Alternatively, that letter may also be compatible with an understandable wish to reduce conflict. [29] Defamation proceedings do not assist in deciding on the evidence of the explanation for lateness or anything else.38 In relation to the document contained in page 51 of the 32 Employer Further Submissions, filed 29 April 2020. 33 Applicant’s Further Materials, 3-9. 34 Ibid, 12-19. 35 Ibid, 23-32. 36 Ibid, 20-21, 33-43. 37 Ibid, 22. 38 Ibid, 46-50. -- 10 of 16 -- 11 Applicant’s Further Materials Court Book, the witness was not called, and in any event I do not see this being of great relevance.39 Nor does the video assist me.40 The video is a recording taken from a computer desktop and shows an email with details of a grievance initiated by Mr Smallwood on behalf of Ms Nicholson. The audio on the video is of a conversation between Mr Baynes and someone organising a time to discuss appropriate and comfortable working relationships in an attempt to resolve the lodged grievance. [30] Even if Mr Baynes is correct in his evidence, even in part, on his own evidence he felt able to tell many people that he was going to bring an unfair dismissal application. He was not so intimidated that he could not tell multiple people that he would bring an action, which is the heart of his explanation for the lateness of his application.41 He says: “I was scared to make a claim right away as Richard Smallwood had told me he was going to ruin my life if I said anything as he had already done to a previous employee and had already begun to do so by gathering the entire team had telling them a false story of what happened right after I left on February 14th 2019. I have multiple witnesses and statements right after I left on February 14th saying I was going to unfair dismissal that Richard Smallwood had begun defaming me and trying to ruin my life by telling a false story …” (emphasis added) [31] Further, he said that he laid a complaint with Human Resources (“HR”), and with Worksafe. He was not apparently impeded by threats in making a range of apparently very public complaints, and in making his intention to bring unfair dismissal proceedings public. Even if HR and Worksafe complaints were private and not made public in any way when they investigated. HR presumably reported to the chief executive, which raises questions about how private from the chief executive this would be. It may well not have been private, so his complaints may have been known to management. He also contacted the police. [32] On 9 August 2019 a solicitor wrote on his behalf to the employer raising the possibility of him taking defamation action. If he could make threats to his employer of defamation proceedings on 9 August 2019, I do not see why he was unable to make an unfair dismissal application on that day or at least before 8 January 2020. Presumably he could have done, and there is no explanation for any delay at least beyond 9 August 2019. [33] I find it difficult to believe in those circumstances that he could not have simply filed an unfair dismissal application at some stage during the long period between him making an application and the expiry of the 21 day period after the alleged termination. [34] There was not any supporting witness evidence for the allegations made by Mr Baynes. Mr Baynes referred to other witnesses in his evidence but did not call them. He explained that they had given police statements and that they thought that this was sufficient.42 This is not an adequate explanation for not calling them. There is little if any corroborating evidence. I do not see the relevance of an alleged police investigation. This might or might not lead to charges being laid, and these might or might not lead to convictions. At this stage I can draw little in the way of evidentiary weight even if there is a 39 Ibid, 51. 40 Email from Applicant containing compressed video file received 30 March 2020 at 12:35 pm. 41 Digital Court Book, 35. 42 Audio Recording - Extension of Time Hearing, dated 17 April 2020 at 37:00. -- 11 of 16 -- 12 police investigation, although the applicant appears to have made a statement to the police.43 The police email is simply a request to Mr Baynes as to whether or not he will be attending the Footscray police station.44 Mr Smallwood gave unchallenged sworn evidence that the allegations were false.45 Mr Barwick also sought to rely on the fact that this might not be an explanation for the whole of the delay, and that the applicant was able on his own evidence to tell others that he was going to bring an unfair dismissal application. There appears to be force in this submission, as I have already noted. [35] The employer also submitted that the applicant had received advice from Unfair Dismissals Direct and made payment for such advice. Therefore, the applicant had an opportunity to obtain legal advice and be advised of the statutory limitations in place for lodgment of unfair dismissal applications. The applicant has not submitted any evidence to suggest that the advice obtained from Unfair Dismissals Direct was inaccurate leading to late lodgment.46 Again, there may be force in this submission, although the applicant does not appear to mention Unfair Dismissals Direct in his submissions. [36] Overall on the material before me the applicant’s evidence is unlikely, taking into account the seriousness of the allegations and the full context of the evidence. I prefer the evidence of the employer on this point. In my respectful view there was no explanation for the delay. [37] This decision is on the material before me only. For the sake of clarity it does not affect police investigations or actions for defamation, if such exist. Those would be separate matters which will take their course. Section 394(3)(b) – Became aware of the dismissal [38] Mr Baynes states that he was aware of the dismissal on 14 February 2019 when dismissed by the employer.47 This is agreed by the employer, and I accept this. Section 394(3)(c) – Disputing the dismissal [39] Mr Baynes appears to have disputed the dismissal, on his evidence, by making it plain to various people that he intended to lodge an unfair dismissal application, and by complaining to HR (see above), and during the meeting. He says that he told the employer and HR in particular that he would lodge an unfair dismissal application.48 The employer states that he did not dispute the dismissal until he lodged the unfair dismissal application, and that he resigned which shows an acceptance of the dismissal. Mr Smallwood gave evidence of the meetings, and that contains no reference to the applicant disputing the dismissal.49 [40] In my view it is likely that Mr Baynes disputed the dismissal at the meeting on 14 February 2019 and I so find. 43 Digital Court book 51, 111. 44 Ibid, 7. 45 Ibid, 114-7. 46 Ibid, 111 [1(a)(ii)]. 47 Ibid, 33. 48 Ibid, 35. 49 Ibid, 114-5. -- 12 of 16 -- 13 Section 394(3)(d) – Prejudice to the employer [41] The employer did not claim prejudice, and the applicant agrees with this. I accept this. Section 394(3)(e) – Merits of application [42] There will need to be a contest of law and facts on the merits of the dismissal, and this factor is therefore neutral in the circumstances. Section 394(3)(f) – Fairness between persons [43] No persons in a similar position are claimed, and I so find. This is a neutral consideration. Conclusion [44] Having had regard to all factors, all the evidence and submissions, and my findings above, in my view the applicant has not demonstrated that there are exceptional circumstances justifying an extension of time. Accordingly, I dismiss the application. An order dismissing the application is contained in Print PR719564. DEPUTY PRESIDENT Appendix A – Summary of Submissions Applicant’s Submissions The Applicant made the following submissions with respect to why the application was made out of time:  He had been subjected to blackmail, extortion, and death threats from Mr Smallwood and that a statement had been made to police and other members of the employer.50  He was scared to make an application for unfair dismissal due to the threats that had been made against him by Mr Smallwood.51 50 Ibid, 34. 51 Ibid. -- 13 of 16 -- 14  He felt ambushed when he was advised that his employment was to be terminated and he was not presented with evidence despite making attempts to ask for it. Additionally, the applicant contends he had not received any previous warnings and was not offered the chance to obtain a support person as he was of the view that the meeting was organised with the view to mediate.52  The applicant contends that this situation qualifies as an extraordinary situation warranting an extension of time. The applicant adds that the situation has affected his career, mental health, and his ability to feel safe.53  He questioned the dismissal and stated that he would pursue an unfair dismissal claim. The applicant had obtained legal advice prior to the termination meeting and he had contacted a legal representative when there was a pause in the meeting to organise a further meeting with Ms Lalchere and Mr Smallwood. The applicant stated in the meeting that he would be pursuing an unfair dismissal applicant right away and for all evidence to be sent to him. Ms Lalchere agreed in this meeting to send the evidence relied on to substantiate termination.54  He had made multiple attempts to obtain the evidence relied on by the employer as it had not been received. The employer replied in an email stating that his request for further evidence was no longer deemed necessary as the employer agreed to rescind the termination by accepting the applicant’s resignation by way of email dated 15 February 2019.55  The lateness of the application will not cause disadvantage or unfairness to the employer.56  The situation the applicant was more unfair than the situation of other people in a similar position because for the dismissal to be deemed fair the applicant should have been given a warning, a chance to provide and be supplied with evidence, to bring a support person to the meeting, be provided with a notice period, been provided with mediation or counselling, not waiting until Valentines Day to terminate his employment, and Ms Lalchere should have organised for a different person from the human resources team to have conducted the termination meeting as Ms Lalchere was a personal friend of Mr Smallwood and therefore a conflict of interest existed.57 Employer’s Submissions The employer made the following submissions with respect to the Applicant’s application for an unfair dismissal remedy being out of time: 52 Ibid. 53 Ibid. 54 Ibid, 35. 55 Ibid. 56 Ibid. 57 Ibid, 36. -- 14 of 16 -- 15  The reasons for late lodgment are not credible or consistent. The Applicant has raised serious allegations against the employer yet has not corroborated the allegations in any of the filed documentary evidence.58  The allegations raised by the applicant are strenuously denied by the employer.59  Any suggestion raised by the applicant that he felt threatened is not credible as since his termination date on 14 February 2019, the applicant continued to communicate with the employer concerning terms to be contained within a Deed of Release. Further, the applicant only made a statement to the police in January of 2020.60  It is evident in the material filed by the applicant that he had received advice from Unfair Dismissals Direct and made payment for such advice. Therefore, the applicant had an opportunity to obtain legal advice and be advised of the statutory limitations in place for lodgment of unfair dismissal applications. The applicant has not submitted any evidence to suggest that the advice obtained from Unfair Dismissals Direct was inaccurate leading to late lodgment.61  The Applicant first became aware of the dismissal on either 14 or 15 February 2019.62  With respect to the steps taken by the Applicant to dispute the dismissal, it is apparent from the Applicant’s material that he received legal advice on or about 13 February 2019, the applicant did not contest the dismissal until the application was lodged with the Fair Work Commission approximately 10 months out of time, and the applicant had made attempts to negotiate terms to be contained within a Deed of Release.63  Further to the above, the applicant was not dismissed from his employment and instead opted to resign. The Applicant emailed his resignation on 15 February 201964 and also submitted an apology letter dated 25 March 2019.65 Appearances: Mr Aaron Baynes, Applicant Mr Richard Smallwood, Employer Ms Thierry Lalchere, Employer Mr Adrian Barwick, on behalf of the Employer Ms Anika Ranchood, on behalf of the Employer Hearing details: 2020. 58 Ibid, 110, [1(a)(i)-(iii)]. 59 Ibid. 60 Ibid, 111, [1(a)(iv)]. 61 Ibid, [1(a)(i)]. 62 Ibid, [1(b)]. 63 Ibid, [1(c)(i)-(iii)]. 64 Ibid, 118. 65 Ibid, 119. -- 15 of 16 -- 16 Melbourne (via Teleconference). 17 April. Printed by authority of the Commonwealth Government Printer <PR719563> -- 16 of 16 --