Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application filed out of time - application dismissed

[1] This decision concerns an application by Ms Alice Walker (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant's employment with Ventia Services Pty Ltd (Respondent) was terminated with effect from 7 April 2020. The unfair dismissal application was lodged on 29 April 2020. Section 394(2) of the 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 28 April 2020. The application was therefore filed 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.

[3] The 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'. The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),[1] where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.

[4] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

[5] Section 394(3) 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;

• (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] I now consider these matters in the context of the present application.

[7] The 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. Several matters were cited as reasons for the delay in lodging the application.

[8] First, the Applicant said that she had sought legal assistance in relation to the preparation and lodgement of her application, but she was unable to afford the upfront fees of a lawyer, and the Commission's pro bono Workplace Advisory Service (WAS) could not assist her because of its high volume of work.

[9] Secondly, the Applicant said that after her dismissal she was in a state of crisis, as she was without an income and the sole provider for her family. Her financial circumstances had already been very difficult because of the breakdown of her relationship, which occurred in distressing circumstances, and because, as a New Zealand citizen, she is entitled to limited government assistance. She was also very busy looking for a new job.

[10] Thirdly, the Applicant said that she did not have a computer to complete the F2 application form and that, because of the COVID-19 restrictions, public computers were not available, and she could not visit a friend to borrow one. On 28 April 2020, after borrowing money from a friend, she bought a computer and completed her F2 application that day, believing that the 21 day period ended on the following day.

[11] Finally, the Applicant contended that, if not individually then taken together, these matters constitute an acceptable explanation and also exceptional circumstances, particularly in light of Victoria having the highest level of restrictions in place during this time.

[12] I do not consider these matters to be an acceptable or reasonable explanation for the delay. It was the Applicant's choice to seek advice before lodging her application. Information on lodging applications is available on the Commission's website. I appreciate that the Applicant was in a difficult financial situation and busy looking for work following her dismissal, but this did not prevent her from lodging the application on time. The Applicant did not have a computer until 28 April 2020, however she could have used another device to lodge the application online or by email. In this regard, the Applicant had access to email on 8 April 2020, when she sent a request for assistance to the WAS. The Applicant explained at the hearing that she had sent this email request from her smart phone. The Applicant could also have telephoned the registry of the Commission and asked for assistance. Had she done so she could also have sought clarification of the 21 day period for lodgement. The Applicant's miscalculation of the 21 day period is not an acceptable reason for delay. Nor does the COVID-19 pandemic or the government restrictions constitute such a reason.

[13] I do not consider the matters raised by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay. In my assessment they did not prevent the Applicant from lodging the application on time, and I do not regard them as exceptional. This weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[14] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge her application. This is a neutral consideration.

[15] Aside from lodging her unfair dismissal claim, the Applicant did not take any action to dispute dismissal. This circumstance does not weigh in favour of an extension of time.

[16] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would tell in favour of the grant of 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 in this case.

[17] The 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 the materials that have been filed and I do not repeat them here. Briefly, the Applicant contends that she was wrongly accused of stealing customer tools and other items from a worksite, namely a nail gun, a circular saw, a heat gun, a shifter, a set of Allen keys, a paint brush and a tap fitting. The Applicant acknowledges that she took these things but says that she thought they had been discarded and that it was common practice for employees to take items of debris. She says that she was not afforded procedural fairness during the investigation.

[18] The Respondent submits that the Applicant's theft of the materials was substantiated. It says that during the investigation, the Applicant had claimed to have found the items in a scrap bin, but the power tools had in fact been placed in a special tub for a customer to collect. It says that on no view could power tools be considered 'debris'. It further contends that the incident was properly investigated and that the Applicant was afforded procedural fairness.

[19] Having examined the information currently before the Commission, it is evident that the merits of the application turn on contested points of fact, and on evidence that 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 to be a neutral consideration.

'Fairness as between the person and other persons in a similar position'

[20] In her written submission in support of an extension of time, the Applicant submitted that the consideration of 'fairness as between the person and other persons in a similar position' (s 394(3)(f)) weighed in favour of an extension. These submissions then in substance addressed the reasons for delay and why the Applicant says that an extension of time should be granted.

[21] I have taken the Applicant's submissions on s 394(3)(f) into account. I would note however that I do not consider these matters to relate to the consideration of 'fairness as between the person and other persons in a similar position'. They rather concern the Applicant's particular circumstances. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position, and I consider this to be a neutral consideration in the present matter.

[22] Having regard to the matters that I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. I appreciate that the Applicant's circumstances are difficult. But they are not 'exceptional circumstances' for the purpose of an application to extend time, either when the various circumstances are considered individually or together.

[23] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[1] [2011] FWAFB 975

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