Fair Work Act 2009

s.394 - Unfair dismissal

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

• [1] This decision concerns an application by Mr Anthony Brown (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, Coffs Harbour Support Services Ltd (Respondent).

• [2] The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).

• [3] I conducted a hearing, by telephone, on 8 April 2024 in relation to the Applicant's request for an extension of time.

• [4] The Applicant's dismissal from his employment with the Respondent took effect on 23 February 2024. The Applicant lodged his unfair dismissal application in the Commission at 10:46pm on 16 March 2024.

• [5] 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 15 March 2024. The application was therefore filed one day 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).

• [6] 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.[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]

• [7] 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.

• [8] 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.

• [9] 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 will now consider these matters.

• [10] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [11] 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.[5]

• [12] The Applicant provided the Commission with the following explanation for his delay:

I am writing in response to my Unfair Dismissal Application having been submitted one day late.

On Friday the 15th of March, I was attempting to lodge my Unfair Dismissal Application. I was of the belief that I was lodging one day early. This actually turned out to be the last day for lodging.

Starting from roughly 5:15pm, I was trying to progress my application to the payment/lodging page. Each time I attempted to move through to the next page (Save/next). The system would shut down. It would close the application window I was working in and showed a blank box with the (small) word 'error' appearing in it. There were no code numbers, details or any other information within this error box. I was therefore unable to determine what the problem was or to find information related to it.

Previously, I had been updating this Unfair Dismissal Application over the last couple of weeks. There had not been any issues with saving as a draft each time I added new information. I also checked that all files added to the document page were in line with (accepted) file types listed. They were.

I then thought to log out of my laptop and log back into the website with my mobile phone. This produced the same shutdown and error box. At this stage, not knowing any better, I was of the belief that it must have been an issue with the website and that I should just keep persisting until I got through.

After trying many times over the next hours, I started to feel extremely concerned and anxious. There were no after-hours phone numbers I could call or any online help related to lodging issues. I then sent two separate messages;

1. One via the online enquiry message service (to the unfair dismissal section) provided on the FWC Website. I do not have access to the hard copy of the information I sent. However this information was (from memory) much the same as what I then sent via the email shown below.

My name is Anthony Brown. I am trying to lodge my unfair dismissal online tonight. Unfortunately, each time I attempt to review and then send it, it comes up with an error message. I desperately need to lodge this within the 21 day timeframe which ends tomorrow night (Saturday the 16th of March)

I am praying that someone can assist me tomorrow as I am extremely concerned and just want this lodged.

I am hoping that through a digital trail you are able to see my online activity. Starting from after 5pm on Friday the 15th of March until late that night, desperately trying to submit my Unfair Dismissal Application via the Fair work Commission Online Lodgment service.

My unfair dismissal from my place of work (CHSS) to the lodging of my Unfair Dismissal Application (and everything in-between) has been absolutely exhausting and harrowing. The serious nature of what I have been (unfairly) deemed guilty of, has taken a very heavy mental toll on me.

I hope that you can appreciate that I made every effort, to the best of my ability, to get the application in on time.

I beg of you! I desperately need somebody to look at my unfair dismissal case. I have been found guilty of an incredibly heinous act without any credible evidence at all. This continues to take a huge toll on my mental health. If not looked at, I know this will negatively affect/impact me for the rest of my life.

• [13] It is apparent from the evidence given by the Applicant that one of the reasons for the one day delay in filing his unfair dismissal application is a miscalculation by the Applicant as to when the 21 day period after his dismissal ended. It is not unusual or uncommon for such mistakes to be made by applicants when filing an unfair dismissal or general protections application. Nor does a such a miscalculation provide an acceptable or reasonable explanation for the delay.

• [14] The other reason advanced by the Applicant for the one day delay is the technology difficulties he faced on Friday, 15 March 2024 when attempting to lodge his application online. It is not unusual or uncommon for Applicants to experience technology related difficulties when attempting to lodge an application in the Commission. Internal inquiries have confirmed that the Commission's Online Lodgement Service did not have any outages on 15 or 16 March 2024. The Applicant does not know the precise cause of his technology related difficulties, but he was able to lodge his unfair dismissal application on 16 March 2024 after he removed information and attachments from his application and then reinserted information and reattached documents to the application. In any event, although I accept the Applicant's evidence that he commenced preparing his unfair dismissal application about two weeks before 15 March 2024, he did not commence attempting to lodge his unfair dismissal application in the Commission until about 5:15pm on the last day of the 21 day period after his dismissal (15 March 2024). Leaving such a task to the last minute tells against a conclusion that there was an acceptable or reasonable explanation for the delay. Further, rather than use the Commission's Online Lodgement Service, the Applicant could have completed his unfair dismissal application and emailed it to the Commission. This information is clearly available on the Commission's website, albeit the Applicant did not read this information when he visited the Commission's website. The Applicant's evidence shows that he was able to send emails to the Commission on the night of 15 March 2024.

• [15] Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the one day delay in filing his unfair dismissal application.

• [16] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 1 March 2024 weighs against the Applicant's contention that there are exceptional circumstances.

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

• [17] The Applicant was notified of the dismissal on the day it took effect and therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.

• [18] On 27 February 2024, four days after his dismissal, the Applicant was walking on Sawtell beach when he saw Ms Carol Malcolm, People and Culture Manager for the Respondent. Ms Malcolm says that the Applicant said to her words to the effect, "I want to speak to you about what happened". The Applicant says he said, "Can I speak to you about what's happened?" Nothing turns on this minor difference in the recollections of Ms Malcolm and the Applicant. Ms Malcom responded by saying to the Applicant words to the effect, "I am no longer involved in the investigation process, and I am unable to discuss this with you". The Applicant responded with words to the effect, "This has ruined my life".

• [19] I accept that the Applicant's conduct in seeking to speak with Ms Malcolm on 27 February 2024 about "what happened" constitutes some action by the Applicant to dispute his dismissal. This weighs in favour of a conclusion that there are exceptional circumstances, but does not warrant significant weight being attached to it.

• [20] I cannot identify any significant prejudice that would accrue to the Respondent 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 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.

• [21] 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 unfair dismissal application are set out in the materials that have been filed, together with the evidence given and submissions made at the hearing on 8 April 2024, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.

• [22] Having regard to all the circumstances, I consider that the Applicant has reasonable prospects of succeeding in his unfair dismissal application against the Respondent. The Applicant has given a detailed account of the assistance he provided to a client of the Respondent on the day in question. The Applicant's account is well and truly plausible. If the Applicant's account were accepted at a final hearing, he would succeed in his unfair dismissal case. The Respondent contends that there are "numerous inconsistencies and discrepancies" in the Applicant's account of the relevant events. As a result, the Respondent did not accept the Applicant's account.

• [23] Ultimately, there would need to be a close examination of the facts and circumstances, including the Respondent's alleged "inconsistencies and discrepancies" in the Applicant's account, at a final hearing. This would take place after relevant witnesses were cross examined. Although it is impossible to predict the outcome of such a case at this early stage, the material before the Commission is sufficient to demonstrate that the Applicant has reasonable prospects of success and the merits of his application weigh in support of a conclusion that there are exceptional circumstances.

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

• [24] 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.

• [25] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [26] Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the merits of the Applicant's unfair dismissal application weigh in the Applicant's favour, as does the minor action he took to dispute his dismissal, the other relevant factors are either neutral or weigh against a finding of exceptional circumstances. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [27] 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.

• [28] I accept that Mr Brown is devastated by his dismissal and is worried about whether he will be able to work in his chosen industry again. I have sympathy for Mr Brown's circumstances. Mr Brown should be comforted to some extent by the fact that the Commission has not made any finding that he engaged in the conduct alleged against him and my view of the limited material before the Commission is that his account of what happened on the day in question is well and truly plausible.

Ms B. Gallifuoco, of counsel, appeared for Coffs Harbour Support Services Ltd.

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

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

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