s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - exceptional circumstances found.

• [1] On 14 April 2024, Ms Bonita Lineburg made an application to the Commission for an unfair dismissal remedy. She contends that she was unfairly dismissed by the Respondent on 12 March 2024.

• [2] Section 394(2) of the Fair Work Act 2009 (Cth) (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).

• [3] The period of 21 days ended at midnight on 1 April 2024, however as this was a public holiday, the final day the Applicant was able to make the application was 2 April 2024. The application was made 12 days outside the 21-day period.

• [4] For the application to proceed, Ms Lineburg requires the Commission grant a further period of time within which to bring her application.

• [5] The question of whether to grant additional time was dealt with at a hearing on 9 May 2024, at which the Applicant gave evidence in support of her application.

• [6] Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are "out of the ordinary course, or unusual, or special, or uncommon" but that "need not be unique, or unprecedented, or very rare".[1]

• [7] The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]

• [8] In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

• the reason for the delay,
• whether the person first became aware of the dismissal after it had taken effect,
• any action taken by the person to dispute the dismissal,
• prejudice to the employer (including prejudice caused by the delay),
• the merits of the application, and
• fairness as between the person and other persons in a similar position.

• [9] In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.

• [10] 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]

• [11] The Act does not specify what reason for delay might justify 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]

• [12] The delay required to be considered 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.[5] 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.[6]

• [13] The Applicant was advised on 11 March 2024 that her employment as a casual administrative assistant would be terminated, and her last day of work was 12 March 2024. She was told that her position was redundant because of a lack of work in her role and that of another employee (a junior accountant), as well as various systems moving to digital platforms.

• [14] The Applicant was not totally convinced that her position was actually redundant because she was fully occupied with her role. The role of the other employee referred to was a totally different position to hers, so she could see no relevance to her situation, and when the systems were moved to a digital platform about 12 months earlier, she had been assured that her hours would not be affected and was given additional responsibilities. However, she did not have any basis to challenge the dismissal at that time.

• [15] However, 4 weeks' later, on 10 April 2024, the Applicant saw a position of an Administrative Assistant advertised on seek.com, which she believed to be the same role she had occupied. This convinced her that her dismissal was not because her position was redundant, and she wanted to challenge the dismissal. Four days later, she made the application.

• [16] I am satisfied that the Applicant has provided an acceptable explanation for the delay in lodging her application. Without any basis to dispute her employer's stated reason for dismissal at the time, when she saw what appeared to be the same position advertised just four weeks' later, she considered that she had been unfairly dismissed and sought to challenge her dismissal. She then acted sufficiently promptly in making the application four days' later.

• [17] This 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

• [18] The Applicant agrees that she was made aware of the dismissal the day before it took effect. As she had the benefit of the full 21-day period within which to lodge the application, I consider this to be a neutral consideration.

Whether applicant took action to dispute the dismissal

• [19] If an applicant disputes a dismissal with his or her employer before lodging the application and after the dismissal takes effect, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal. In such circumstances the fact that there was notice of such a dispute is a matter which would weigh in the applicant's favour, even though the application was lodged out of time.

• [20] Ms Lineburg did not take any steps, beyond lodging the application, to dispute her dismissal after it took effect. In circumstances where the Applicant had no basis to and thus did not intend to dispute the dismissal until she saw the job advertised, I consider this weighs neutrally.

Prejudice to the employer (including prejudice caused by the delay)

• [21] The Respondent is a small business and contends that the granting of additional time would cause financial prejudice to it and to the new employee if additional time was granted, the dismissal was found to be unfair and it was ordered to reinstate the Applicant. This would apply to virtually all respondents to unfair dismissal claims, and I am not persuaded that there is any particular prejudice to the Respondent and consider that this is a neutral consideration.

• [22] The merits of the application are a relevant consideration in determining whether there are exceptional circumstances and whether it is appropriate to exercise the discretion to extend the timeframe. For example, a highly meritorious claim may persuade the Commissioner to accept an explanation for delay that would otherwise have been insufficient.

• [23] The purpose of the consideration here is to make a general assessment, and it is done in the context of, largely, uncontested, untested allegations that are made and it is not possible to make any final and substantive determinations.

• [24] The Applicant contends that her dismissal was unfair and was not a genuine redundancy. She had been employed by the Respondent as an administration assistant on a casual basis since June 2015, initially working 3 days per week, then 5 days a week and then, at her request, reduced to 4 days per week. The Applicant's letter of offer of employment describes the position as "you will be required to undertake the duties usually associated with the position of administration assistant" and other duties as may reasonably be required by the employer. The position advertised on 10 April 2024 was for a casual and/or part-time office administration assistant, initially on a 3 day per week basis. The advertisement identifies that the role includes scanning documents, electronic filing, back up to answering phones, greeting customers and updating systems. The Respondent contends that the new role is materially different to the Applicant's role and has a focus on marketing and client retention. That is not evident from the description in the advertisement. The Respondent also contends that it has the right to determine that its employment needs had changed and therefore can hire a new employee. That is true, provided it did not unfairly dismiss the Applicant.

• [25] Where the substantial merits of the application have not been fully examined or tested, my preliminary assessment on the limited material before the Commission, viewing the Applicant's case at its most favourable, suggests that the Applicant has a reasonable basis to contend that she has been unfairly dismissed and that her dismissal was not a case of genuine redundancy. The Respondent may well be able to produce evidence that there was some change in its circumstances between the date it decided to terminate the Applicant's employment and its subsequent decision to recruit a new employee, and/or that the new role was materially different. In the circumstances, I consider that the merits of the application weigh slightly in favour of a finding of exceptional circumstances.

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

• [26] This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Ms Lineburg's claim. However, cases will generally turn on their own facts.

• [27] No matters concerning this consideration were drawn to my attention, and I have treated this to be a neutral consideration in this case.

• [28] Having regard to 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 and the Respondent, I am satisfied that there are exceptional circumstances in this case, when the various circumstances are considered together. I am satisfied that the circumstances of this matter are out of the ordinary course and are unusual.

• [29] I consider it appropriate to exercise my discretion and grant the Applicant additional time to make the application.

B. Lineburg, the Applicant appearing on her own behalf.

S. Christie, appearing on behalf of the Respondent.

[1] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13].

[2] Mooney v Mega Industries Pty Ltd [2021] FWCFB 2489 at [16].

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

[5] Long v Keolis Downer [2018] FWCFB 4109 at [40].

[6] 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].

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