Albert Barkho v Aussie Traveller Pty Ltd [2020] FWC 3792

1 Fair Work Act 2009 s.394—Unfair dismissal Albert Barkho v Aussie Traveller Pty Ltd (U2020/9088) COMMISSIONER BISSETT MELBOURNE, 20 JULY 2020 Unfair dismissal application filed out of time – circumstances exceptional - extension of the time for filing allowed. [1] This decision concerns an application by Mr Albert Barkho (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act). [2] The Applicant’s employment with Aussie Traveller Pty Ltd (Respondent) was terminated with effect from 4 June 2020. The unfair dismissal application was lodged on 2 July 2020. [3] Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 25 June 2020. The application was therefore filed 7 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request. [4] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. 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.1 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.2 [5] Section 394(3) of the FW Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) whether the person first became aware of the dismissal after it had taken effect; [2020] FWC 3792 DECISION -- 1 of 4 -- 2 (c) any action taken by the person to dispute the dismissal; (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [6] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application. [7] Both the Applicant and Respondent were given permission to be represented in the proceedings. Reason for the delay [8] The FW Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.3 [9] The Applicant cited several reasons for the delay in lodging his application. He said that he had some contact with the Fair Work Ombudsman prior to the expiration of the 21 days. He said the staff attempted to help him make an application but he had difficulty in doing so. He said that he had contacted Unfair Dismissals Australia (his representative) prior to the expiration of the 21 day time limit and asked them to file his application. Unfair Dismissals Australia, who represented the Applicant in these proceedings, said that they had tried to gain instructions from the Applicant in order to file his application but had a range of difficulties in being able to get a telephone connection without substantial interference or drop outs. The representative said that, for this reason they could not get clear instructions from the Applicant to enable them to file a completed application. The Applicant said that he had understood his application would be filed but, when he did not hear from the Fair Work Commission, he contacted the Commission and found that no application had been made. [10] The Applicant said that he moved house on 24-25 June 2020 and that, following 25 June 2020 he had to visit Centrelink on 4-5 occasions to try and sought out his Jobseeker benefit. The Applicant does not drive and is a single parent. For this reason travel to Centrelink took some time and, each time, he had to arrange for someone to care for his children. Centrelink was a priority for the Applicant as he needed to ensure he had some income so he could care for his children. [11] The Applicant said that when he found that his application had not been filed, he sought assistance with making and filing an application. The Applicant said that he was not computer literate and he needed help to file the application. He said he did this at the same time as his visits to Centrelink and trying to make his Jobseeker application with Centrelink online which was what Centrelink advised him to do after his visits. -- 2 of 4 -- 3 [12] In these circumstances and given the attempts by the Applicant to find information and provide instructions to his representative to file an unfair dismissal application and the circumstances of moving house, attempting to resolve Jobseeker payments with Centrelink and his lack of technical skills, together, to be an acceptable or reasonable explanation for the delay in making the application. [13] The finding of an acceptable explanation weighs in favour of a conclusion that there are exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect [14] The Applicant was aware of his dismissal on the day it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration. Action taken to dispute the dismissal [15] The Applicant took no steps, other than the lodgement of this application to dispute the dismissal. This is a neutral consideration. Prejudice to the employer [16] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted and no submission was made by the Respondent that this was the case. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. Merits of the application [17] The FW Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in brief in the application of the Applicant and the response of the Respondent to that application and I do not repeat them here. The dismissal before me related to the redundancy of the Applicant. Having examined the materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits, of this reason, to be a neutral consideration. Fairness as between the person and other persons in a similar position [18] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case no submissions were made on the question of fairness. I therefore consider this to be a neutral consideration. -- 3 of 4 -- 4 Conclusion [19] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am satisfied that there are exceptional circumstances when the various circumstances that contributed to the delay in filing the application are considered together. Because I am satisfied that there are exceptional circumstances I will therefore grant an extension of time within which the application may be made until 2 July 2020. An order4 to this effect will be issued with this decision. COMMISSIONER Appearances: A. Both for the Applicant. C. Muir for the Respondent. Hearing details: 2020. Melbourne by telephone: July 17. Printed by authority of the Commonwealth Government Printer <PR721117> Endnotes: 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39]. 4 PR721118. -- 4 of 4 --