s.394 - Unfair dismissal

• [1] Mr Brett Martin (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 (Cth) (the Act) in relation to the termination of his employment with Alpha Hr Pty Ltd (the Respondent).

• [2] The Applicant commenced his employment with the Respondent on 4 March 2021 and was notified of his dismissal on 9 June 2023. The dismissal was effective on the same day.

• [3] The Applicant lodged his application on 1 July 2023. The application was lodged 1 day outside the statutory time limit prescribed by s.394(2) of the Act.

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

• [5] Directions were issued and material was filed by each party. A hearing was held before me on 1 September 2023.

• [6] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

"(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 Applicant's 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 it must be 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 stated the following for the reasons for delay:

'I'm responding for leniency on the late reply to my unfair dismissal at Alpha Car Hire. I'm currently going through a fresh divorce which has heightened my mental health 100%.

Each day is a massive challenge leaving me not knowing what to do some days.

This unfair dismissal has demeaned my self-worth and completely ravaged my reputation in the community.

On my behalf, there was certainly no ignorance of the timeframe purely a miss judgement in my life at the moment also finding the money to pay and not having the relevant program on my laptop that the Fair Work Commission needed for me to upload documents.

I genuinely hope you allow this to see the justice it deserves. I'm at a breaking point.

• [13] In Giles v Coal Train Australia Pty Ltd, Deputy President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.[7]

• [14] It was difficult to assert the exceptional circumstances considering the Applicant did not provide evidence in a timely manner surrounding the delay.

• [15] In the hearing, the Applicant stated that he did not have access to a computer and was going through a divorce. He stated that he was aware of the unfair dismissal process 4 days within the 21-day timeline and had tried to contact 11 companies regarding unfair dismissal but did not accept his matter because of issues surrounding sexual harassment. The Applicant provided evidence of the call logs and identified the entities he contacted. The call logs indicate that the Applicant did contact for legal assistance to at least 5 different firms on 14 June 2023 for assistance.

• [16] The Applicant further stated that his phone was cut off as he did not have enough money for the phone bill and did not have access to a laptop. He stated that he was aiming to complete the application as soon as possible once he was able to obtain help from his friend Mr Blair Cossar who stated the Applicant had extreme depression in filling out his application.

• [17] Considering the Applicant had filed the Application 1 day out of time and had endeavoured to get it within the 21-day time frame taking into account his circumstances, this consideration does weigh in favour of granting an extension of time.

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

• [18] The Applicant was aware of his dismissal on 9 June 2023 and received a termination letter confirming his dismissal. The Applicant was aware of his dismissal date well within the 21-day period.

• [19] This consideration does not weigh in favour of granting an extension of time.

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

• [20] The Applicant did not take actions to dispute the dismissal. This consideration does not weigh in favour of a finding of exceptional circumstances.

• [21] The Respondent did not address that an extension could potentially cause a degree of prejudice. I consider this factor to be neutral.

• [22] In Kornicki v Telstra-Network Technology Group,[8] 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."

• [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.

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.[9]

• [25] In McBride v JA Krieger Forestry Services [2021] FWC 6284 at [5], Deputy President Colman found that a person being unaware of the requirement to lodge an unfair dismissal application within 21 days of the dismissal is not an acceptable reason for delay.

• [26] In Morale v Hopgoods Bus Service PL [2017] FWC 4345, Deputy President Anderson stated generally the lack of awareness of litigation rights is not a sufficient reason for an extension of time. However, each particular case must be considered on its own merits. I note that the Applicant was going through a divorce and stated that his mental health was exacerbated by his belief that he was dismissed because of a sexual harassment allegation.

• [27] In considering the above matters and the circumstances of this matter, this factor marginally assists in finding exceptional circumstances.

• [28] I find that there are exceptional circumstances in considering the above factors and the Commission may consider whether to allow a further period for the application to be made.

In consideration of the objectives of s.381(2) of the Act, to ensure that a 'fair go all round'. I exercise my discretion to extend the period for the Application to be made to 1 July 2023. My chambers will issue further directions in programming the matter to be determined on its merits.

[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] Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at 38.

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

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

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