s.394 - Unfair dismissal

Unfair dismissal application - filed out of time - circumstances not exceptional - minimum employment period not met - application dismissed.

• [1] This decision concerns an application by Mr Bruce MacNeil (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, the Trustee for the ARC Unit Trust trading as Arcare Aged Care (Respondent).

• [2] The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission). The Respondent contends that an extension of time should not be granted and the Applicant did not meet the minimum employment period.

• [3] I conducted a hearing, by telephone, on 31 January 2025 in relation to the Applicant's request for an extension of time and the Respondent's contention that the Applicant did not meet the minimum employment period. The Applicant gave evidence at the hearing, as did Ms Jennifer Wu, Recruitment Co-ordinator, for the Respondent.

• [4] I have decided, for two separate reasons, to dismiss the Applicant's unfair dismissal application against the Respondent. First, the unfair dismissal application was filed outside the 21 day time period prescribed by the Act and there are no exceptional circumstances to enliven the exercise of a discretion to extend time. Secondly, the Applicant did not complete a period of employment with the Respondent of at least the minimum employment period, with the result that he is not protected from unfair dismissal within the meaning of s 382 of the Act.

• [5] The Applicant's dismissal from his employment with the Respondent took effect on 5 December 2024. The Applicant lodged his unfair dismissal application in the Commission on 3 January 2025.

• [6] 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 26 December 2024, which was a public holiday, with the result that the 21 day period ended on 27 December 2024. The application was therefore filed seven days 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).

• [7] 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]

• [8] 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.

• [9] 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.

• [10] 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.

• [11] 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]

• [12] 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]

• [13] In his unfair dismissal application, the Applicant gave the following explanation for his application being filed outside the 21 day period provided for in the Act:

"Due to having a learning disability of dyslexia I misread the time frame as 31 days and having started previous lodgments and incorrect start times."

• [14] In an email to the Commission sent on 21 January 2025, the Applicant explained that his dyslexia caused him to read the 21 day time limit as 31 days and submitted that reasonable adjustments should be made for individuals with learning disabilities to ensure equitable treatment.

• [15] The Applicant further explained in his oral evidence that he realised, on Christmas Day or Boxing Day, when talking to friends that he had 21 days, not 31 days, to file his unfair dismissal application. Later that same day, the Applicant attempted to complete an online lodgement of his unfair dismissal application. It was not successful. A few days later the Applicant made a second attempt to complete an online lodgement of his unfair dismissal application. It, too, was unsuccessful. The Applicant is not sure why these attempts were not successful, but he thinks it had something to do with the lateness of the application. That could not be correct for the first attempt, because the 21 day time period did not expire until midnight on 27 December 2024.

• [16] The Respondent submits that the Applicant has not provided any medical evidence to support his contention that he has dyslexia, nor did the Applicant disclose to the Respondent during his employment that he had dyslexia. The Respondent contends that ignorance of the 21 day period prescribed by the Act is not an exceptional circumstance.

• [17] Although the Applicant was required to disclose to the Respondent that he had dyslexia in accordance with clause 3.4 of his employment agreement and he did not do so, I accept the Applicant's evidence that he is embarrassed about the matter and his medical records concerning being diagnosed with dyslexia are located with his doctor in New Zealand.

• [18] I accept that the Applicant's dyslexia caused him to believe, until 25 or 26 December 2024, that he had 31 days to lodge his unfair dismissal application in the Commission. Upon realising this error, I accept that the Applicant took immediate steps to attempt to lodge his application in the Commission and he did so successfully, on his third attempt, on 3 January 2025. Having regard to all the circumstances, I am satisfied that the Applicant has provided an acceptable explanation for the seven day delay in filing his unfair dismissal application because his dyslexia meant that it was not until 25 or 26 December 2024 that he understood he had 21 days, not 31 days, to lodge his application and this was a significant contributing factor to the seven day delay in lodging the application. Had the Applicant not suffered from dyslexia, I am satisfied that he would have taken steps well before 25 or 26 December 2024 to attempt to lodge his application in the Commission, which would have ensured sufficient time to lodge within 21 days, even allowing for the difficulties experienced by the Applicant in making an online lodgement in the period from 25 or 26 December 2024 to 3 January 2025.

• [19] The existence of an acceptable explanation for the delay weighs in support of a finding that there are exceptional circumstances.

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

• [20] The Applicant was aware of his 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.

• [21] The Applicant sent some abusive and insulting emails to employees of the Respondent shortly after his dismissal but I do not consider that he took any action to dispute his dismissal, other than filing his unfair dismissal application in the Commission. This is a neutral consideration.

• [22] 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.

• [23] 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, 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.

• [24] For the reasons explained below, the Applicant did not meet the minimum employment period, with the result that he was not protected from unfair dismissal. Accordingly, the merits of the Applicant's unfair dismissal application are weak and this weighs against a finding of exceptional circumstances.

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

• [25] 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.

• [26] Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.

• [27] 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 Applicant has an acceptable explanation for the seven day delay in lodging his unfair dismissal application in the Commission, the other relevant factors are either neutral, of little weight, or, in the case of the merits of the application, weigh against a finding of exceptional circumstances. Taking into account 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, particularly having regard to the fact that the Applicant did not meet the minimum employment period.

• [28] 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).

• [29] The Applicant contends that he commenced employment with the Respondent on 3 June 2024 when he entered into a verbal agreement with the Respondent's Facility Manager, Ms Louise Hargrave, who is no longer employed by the Respondent.

• [30] The Respondent contends that the Applicant's employment period commenced when he started work on 7 June 2024.

• [31] Given that the Applicant was dismissed on 5 December 2024, the contested date on which the Applicant commenced his period of employment with the Respondent will decide whether he completed the minimum employment period prior to his dismissal.

• [32] On 3 June 2024, the Applicant attended an interview with Ms Hargrave for the position of Registered Nurse. At the interview, the Applicant says that Ms Hargrave spoke about how difficult it was to find Registered Nurses and asked him whether he would like to "start now", to which the Applicant said that he could not. The Applicant then says that Ms Hargrave asked if he could start work tomorrow, to which the Applicant laughed and there was no further discussion about a start date. The Applicant says that Ms Hargrave then said, "As far as I am concerned, you are hired" and Ms Hargrave proceeded to have the Applicant sign a statutory declaration concerning criminal proceedings, a medicare form, an NDIS document and other documents. The Applicant also says that Ms Hargrave said "Welcome to Arcare" during his interview and introduced him to other staff. The Applicant does not recall Ms Hargrave talking about a NDIS check, a Police check or having to sign a contract of employment, but Ms Hargrave said to the Applicant that extra paperwork would come in due course. I accept this evidence from the Applicant about what happened during his interview with Ms Hargrave on 3 June 2024.

• [33] Ms Wu gave evidence, which I accept, that the process followed by the Respondent was not for Ms Hargrave to offer applicants such as the Applicant a job at the interview, but rather for Ms Hargrave to let Ms Wu know that an applicant was successful and then Ms Wu would, after the completion of reference and other checks, contact the applicant and make the offer of employment to them. Consistent with this process, Ms Hargrave emailed Ms Wu on 3 June 2024 and stated that she would like to offer the Applicant a job.

• [34] On 4 June 2024, the Applicant was asked to complete references and provide a NDIS clearance. The Applicant did both of those things on 4 June 2024.

• [35] The Applicant recalls having a telephone discussion with Ms Wu but does not recall when the call took place. The Applicant believes that he spoke to Ms Wu prior to 6 June 2024. Ms Wu gave evidence that she spoke to the Applicant by telephone on 6 June 2024, which was the same date that an employment agreement was sent to the Applicant. I prefer Ms Wu's evidence that her call with the Applicant took place on 6 June 2024. Ms Wu had a good recollection of this call, whereas the Applicant did not recall much about what was said during this call. Ms Wu gave evidence, which I accept, that she said to the Applicant words to the following effect during their call on 6 June 2024: "We would like to provide you with a verbal offer starting on 7 June, with a pay rate of $49.28 an hour and working shifts from Tuesday to Saturday", and the Applicant verbally accepted the offer. Ms Wu then said to the Applicant that a contract would be sent to him shortly and he would need to sign it.

• [36] Later on 6 June 2024, Ms Wu sent the Applicant an employment agreement and a position description. The employment agreement is dated 6 June 2024 and relevantly states:

"We are pleased to confirm your employment with Arcare Pty Ltd on the terms and conditions set out in this employment agreement (Agreement).

Please review these terms and if you are satisfied with them, please initial each page, sign both copies of this Agreement and return the duplicate copy to me.

1.1 You are employed as a Registered Nurse on a Part-time basis.

• 1.2 This Agreement starts on 7 June 2024 and all terms and conditions as contained in this Agreement will operate from that date.

3.4 Before starting your employment, you must disclose any pre-existing injuries, diseases or medical conditions..."

• [37] The position description sent to the Applicant is dated 7 June 2024.

• [38] The Applicant signed the employment agreement and the position description on 6 June 2024.

• [39] The Applicant commenced work for the Respondent on 7 June 2024.

• [40] In order to be protected from unfair dismissal, an applicant must have completed a period of employment with their employer of at least the minimum employment period (s 382(a) of the Act). The minimum employment period for a business such as the Respondent which is not a small business employer is six months (s 383(a) of the Act). An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee (s 384(1) of the Act). The expressions 'service' and 'continuous service' are governed by s 22 of the Act. A period of service by an employee is a period during which the employee is employed by the employer, but does not include any period that does not count as service because of s 22(2) of the Act (s 22(1) of the Act).

• [41] In Corner v SkyCity Adelaide Pty Ltd,[6] a Full Bench of Fair Work Australia held that the period of employment commences when the employee first attends for work.

• [42] It is not uncommon for a person to enter into an agreement with an employer to commence employment on a particular date in the future. Although in such cases the contract of employment is made at the (earlier) time when the parties enter into the agreement, the employment relationship does not commence until the employee starts work. This is when the employee commences their service with their employer, which is the starting point of the employee's 'period of employment' within the meaning of s 384(1) of the Act.

• [43] The Applicant did not commence his service with the Respondent until he commenced work for the Respondent on 7 June 2024. This is when the Applicant's 'period of employment' commenced. Six months after 7 June 2024 is 6 December 2024. The Applicant's dismissal took effect on 5 December 2024. Accordingly, the Applicant did not complete a period of employment with the Respondent of at least the minimum employment period (6 months). It follows that he was not protected from unfair dismissal.

• [44] The foregoing analysis does not require a determination as to whether, as the Applicant contends, he entered into a verbal employment agreement with Ms Hargrave on 3 June 2024 or, as the Respondent contends, he first entered into an employment agreement with the Respondent on 6 June 2024 when he signed the written employment agreement. In any event, even if the Applicant entered into a binding verbal agreement with Ms Hargrave, on behalf of the Respondent, on 3 June 2024, I find that it was not an agreement for the employment of the Applicant to commence immediately. No agreement was reached between Ms Hargrave and the Applicant as to the date on which he would commence employment with the Respondent. Ms Hargrave's statement to the Applicant that "you are hired", was coupled with a qualifying statement that this was "as far as I [Ms Hargrave] am concerned", a requirement for the Applicant to complete forms, and a statement by Ms Hargrave that "extra paperwork" would be provided to the Applicant in due course. In my view, a reasonable person in the position of the Applicant would not have understood that his employment with the Respondent commenced on 3 June 2024. Instead, I am satisfied that it would have been apparent to a reasonable person in the position of the Applicant that there would be a further process, involving "extra paperwork", before he could be in a position to commence his employment with the Respondent. That is exactly what happened in this case.

• [45] For completeness, I also find that the Applicant did not enter into a binding oral employment agreement with the Respondent on 3 June 2024. There is no doubt that such an agreement may be oral and does not need to be in writing. But one of the essential elements of the formation of a contract is an intention to create legal relations. The intention of the parties is normally inferred from their conduct. In the present case, I am not satisfied that the Applicant and Ms Hargrave, as agent for the Respondent, by their words and conduct taken in the context of the surrounding circumstances, evinced a common intention that they had made an immediately binding contract.[7] That is because Ms Hargrave qualified her statement about the Applicant being "hired" on the basis that it was only so far as Ms Hargrave was concerned. This qualification, together with the statement that "extra paperwork" would be forthcoming, objectively suggests that a further process was required before any binding contract could be made between the Applicant and the Respondent.

• [46] For the reasons given, the Applicant's unfair dismissal application is dismissed.

[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]

[6] [2011] FWAFB 955 at [7]

[7] Jago v Coastalwatch Pty Ltd [2009] NSWSC 594 at [71]

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