Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of statutory timeframe - application for extension of time dismissed.

[1] Mr Anthony Keith Nichols (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Narellan Pools Stapylton (the Respondent).

[2] On the Form F2, the Applicant states that he commenced his employment with the Respondent on 11 March 2015 and was notified of his dismissal on 19 December 2022. The dismissal was effective on the same day.

[3] The Applicant lodged his application on 13 March 2023. The application was lodged 62 days outside the statutory time limit prescribed by s.394(2) of the Act.

[4] The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time.

[5] Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file her application. A hearing was held before me on 30 May 2023.

[6] Section 394(3) of the Act sets out the circumstances where the Commission may allow a further period for an application involving dismissal to be made beyond the 21 day timeframe:

"(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 like position."

• [7] The test of 'exceptional circumstances' establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

"[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."

[8] Although Nulty concerned the expression 'exceptional circumstances' in the context of s.365 of the Act, its reasoning applies to s.394(3).

[9] For the Application to proceed, I must be satisfied that there are "exceptional circumstances" for the Applicant to obtain an extension of time under s.394(3) of the Act.

Reason for the delay (s.394(3)(a))

• [10] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

"The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each." [5]

• [11] It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

[12] The Applicant wrote a one-page handwritten letter to the Commission stating the reasons for delay:

• The Applicant states he rang 'workplace health and safety' (which was later confirmed to be the Work Health and Safety Officer of the Respondent) and the Applicant was told to contact the Fair Work Ombudsman near the time of the dismissal. However, the Applicant did not know the specific date.
• The Applicant states the [Fair Work] Ombudsman took 2 to 3 weeks for them to respond and states they could not do anything.
• The Applicant then stated he wrote to his Federal Member of Parliament when the Fair Work Ombudsman did not help him and received a response 2 weeks before he heard back from them stating that they were unable to help.
• The Applicant then said someone from Industrial Relations [assuming the Queensland Industrial Relations Commission] would contact him, and another staff member told him to contact the Fair Work Commission a week later.

[13] The Applicant states in his oral evidence that he contacted the above institutions but was not able to recall the dates he contacted them, or who he contacted specifically. The Applicant did not provide any other evidence besides this letter and his oral testimony. He was aware that there was a timeframe regarding unfair dismissal but did not know what the specific timeframe was. The Applicant stated that he had only known about the 21-day timeframe once he was informed about it from the Industrial Relations Commission.

• [14] It has long been recognised that ignorance of the timeframe for lodgement is not exceptional circumstance.[7] In Nulty, it states:

"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 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."[8]

[15] The Applicant did not appear to make any follow-ups with the institutions he called and waited until they responded. During the period where the Applicant spoke to the Fair Work Ombudsman, an indication of dismissal should have guided him to the correct place to lodge an application.

[16] I note that there is information on the Commission's website about how to lodge an unfair dismissal, along with other applications through a simple search on the internet. The Applicant did not establish any evidence that supported the reason for the delay or what he informed the people he reached out to. This consideration does not weigh in favour of a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[17] A show cause was originally planned for 10 November 2022 regarding the allegations of serious misconduct. The Applicant had issues with his health and the Respondent had postponed the show cause meeting to 19 December 2022. This was the date where the Applicant was aware of his dismissal date.

[18] This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

[19] The Applicant did not dispute the dismissal as he did not reach out to the Respondent after the dismissal. This consideration does not weigh in favour of a finding of exceptional circumstances.

[20] The Respondent did address that an extension would cause a degree of prejudice to the Employer stating that they would have revisit the matter. However, the Respondent had already provided some context surrounding the dismissal. I consider this factor to be neutral.

• [21] In Kornicki v Telstra-Network Technology Group,[9] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[22] The Applicant states he was dismissed by the Respondent while he was on WorkCover, The Respondent contends that the Applicant was dismissed because of misconduct.

[23] Without a hearing on the merits, it is difficult to consider the merits of the Applicant's claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

• [24] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]

[25] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. I find this a neutral factor in this application.

[26] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[7] Nulty v Blue Star Group Pty Ltd [2019] FWC 25.

[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[10] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818, [31].

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