s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

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

• [2] On 3 April 2025, Ms Campbell received a letter from her employer which stated that she was not going to be offered any more casual shifts and was dismissed. Ms Campbell immediately told her parents this occurred and on the next day contacted her consultant at CVGT[1] seeking an urgent meeting. After initially confirming a meeting for Ms Campbell, CVGT informed her on 4 April 2025 that due to staffing her appointment could not occur until 24 April 2025.

• [3] On 23 April 2025 CVGT again advised Ms Campbell her meeting would not be possible until 15 May 2025. After being told this, Ms Campbell again contacted her parents and was made aware of the potential to make an unfair dismissal application to the FWC. On 30 April 2025 she also called CVGT but was not provided further advice over the phone. On being made aware of the unfair dismissal provisions, Ms Campbell took steps to better understand what this required and subsequently filed her unfair dismissal application with the Commission on 2 May 2025.

• [4] 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 24 April 2025. 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 and raises an objection that the application should be dismissed as it was filed out of time.

• [5] 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'. 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.[2] 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.[3]

• [6] 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.

• [7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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);

(f) fairness as between the person and other persons in a similar position.

• [8] 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.

• [9] 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. 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.[4]

• [10] Ms Campbell acknowledges her application is filed out of time. She submits the reasons for this delay is that she was not aware of the 21-day filing requirement. That she has sought to make meetings with her employment service consultant immediately following her dismissal but was unable to get an appointment. She submits her purpose for seeking a meeting with CVGT was to seek advice about further employment opportunities and what also could be done about her dismissal.

• [11] In proceedings, Ms Campbell accepted that her appointments with CVGT were usually about getting work but that given that she had been dismissed, on this occasion, she also wanted to get advice from them on this. I accept this evidence.

• [12] Ms Campbell does not present any other evidence to support the reasons for the delay. Nor does she present any evidence or submissions why when CVGT cancelled her meeting until the day her application with the Commission was due to be filed she took no further steps to seek additional information or advice about what she could do. When CVGT again cancelled her meeting, she told her parents, took steps to work out what could be done and subsequently filed this application.

• [13] This evidence does not support a conclusion of there being any other reason for the delay but Ms Campbell's lack of awareness of the 21-day filing requirement and the unfair dismissal provisions.

• [14] While I accept this to be the case, it is well established that ignorance of one's rights is not usually an acceptable reason for delay. It is also well established that the requirement of exceptional circumstances is a "high bar" and "strictly limited."[5]

• [15] Considering Ms Campbell's submissions in light of these authorities, I do not accept that Ms Campbell has presented any evidence of "exceptional circumstances" of why she did not file her application with the Commission within the required 21-day period. Nor do I accept there is anything "exceptional, "out of ordinary course" or uncommon about her circumstances that distinguishes her case from many others placed in similar situations.

• [16] It follows I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

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

• [17] It is not in contest that Ms Campbell became aware of her dismissal on the day she received the email advising her she would not be offered any more shifts on 3 April 2025, the day her employment came to an end. Ms Campbell had the full 21-day period to lodge her unfair dismissal application.

• [18] I therefore consider this factor to be neutral.

• [19] It is not accepted that Ms Campbell took action to dispute her dismissal prior to making this application with the Commission. I have considered this factor. In proceedings Ms Campbell explained she sought meetings with CVGT, spoke to her parents and had previously raised concerns with her employer about not being provided shifts.

• [20] I accept this to be the case. However, I do not consider this evidence counts as action taken to dispute her dismissal. While I accept that may have been Ms Campbell's intention in wanting a meeting with CVGT, the fact she did not take any action separate to this with her employer, CVGT or otherwise, does not weigh in her favour.

• [21] In the circumstances of this case, I do not consider Ms Campbell took action to dispute her dismissal within the 21-day period and consider this to be a neutral factor.

• [22] Ms Campbell submits there is no prejudice arising for the Respondent should her application be permitted to proceed. The Respondent submits that allowing the application to proceed despite its objections would not amount to a significant prejudice to the Respondent.

• [23] I have considered these submissions, and 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 point in favour 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 and consider this a neutral factor.

• [24] 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. In short, Ms Campbell submits that her shifts started to be cut after a new supervisor took over. That she advised she was available and willing to work, but that new employees were engaged, she was not provided shifts and ultimately dismissed.

• [25] The Respondent position is that Ms Campbell is a casual employee and was offered shifts in accordance with the operational requirements of the store and her availability. That she was not guaranteed regular, ongoing, or future shifts. And further that the operational requirements of the store were such that its ability to offer shifts to Ms Campbell aligning with her availability resulted in no shifts being worked for over 3 months.

• [26] Having examined these materials, it is evident to me that the merits of the Application may 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.

• [27] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, 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

• [28] 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.

• [29] Neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention in submissions or at the hearing.

• [30] My conclusion is that this is a neutral consideration.

• [31] 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 not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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] CVGT is a not-for-profit employment service provider, formerly known as Central Victoria Group Apprenticeship Scheme. Employment Since 1983.

[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[5] Mohammed v Ayub v NSW Trains [2016] FWCFB 5500 at [36].

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