[1] On 26 September 2011, Mr Charles Carroll ("the Applicant") made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from Daravit Pty Ltd T/A Harvey Norman AV/IT Superstore Darwin ("the Employer").

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 ("the FW Act").

[3] On 19 October 2011, the Employer filed a response to Mr Carroll's application for unfair dismissal remedy. Shortly put, the Employer states:

● Mr Carroll was not dismissed but resigned voluntarily from his employment on 16 August 2011;

● Mr Carroll did not resign because he was forced to do so as a result of the conduct or course of conduct of the Employer; and

● Mr Carroll's application was not lodged within 14 days after his alleged dismissal took effect as required under the FW Act.

[4] The application was referred to me for determination on 13 January 2012.

[5] On 16 January 2012, I wrote to the Applicant's representative advising that I can allow a further period beyond 14 days to file an application should I be satisfied that are exceptional circumstances, taking into account the criteria in s.394(3) of the FW Act. The Applicant provided his submission on 23 January 2012. The Employer provided its response to the Applicant's submission on 30 January 2012.

[6] The Applicant alleges that he was forced, by the conduct of the Employer, to resign his employment on 16 August 2011. Further, the resignation letter was written at the request of the Employer.

[7] The Applicant contacted the Employer's Human Resources department in Melbourne on 17 August 2011 to discuss his resignation. He was referred to the Employer's Human Resources department in Darwin where he worked.

[8] The Applicant submits that he attempted to contact Ms Brown of the Employer's Human Resources department in Darwin. After one week, the Applicant had not been contacted by Ms Brown.

[9] During the week commencing 22 August 2011, the Applicant submits that he contacted his union on four occasions but with no response.

[10] After some confusion with his pay slips, the Applicant attempted to make further contact with Ms Brown on 26 August 2011.

[11] In the two weeks after 26 August 2011, the Applicant submits that he had three (3) or four (4) discussions with officers of FWA. During these discussions, Mr Carroll asserts that no person from FWA raised with him the necessity of lodging an application seeking an unfair dismissal remedy within 14 days.

[12] In one discussion, Mr Carroll asserts that he was advised that the Fair Work Ombudsman (FWO) would "look after" his unfair dismissal and that it could be "linked in" with his underpayment claim which the FWO was investigating on his behalf.

[13] Consequently, the Applicant asserts that he was unaware that he must lodge personally an application and that there is the general standard time limit of 14 days.

[14] On 23 September 2011, Mr Carroll submits that he was advised by FWA that he may have been "constructively dismissed" and an application was lodged on 26 September 2011.

● he believed his resignation (forced) on 16 August 2011 did not have effect until 1 September 2011;

● he took action to dispute his forced resignation through telephone calls to FWA and his union;

● the application was not so late as to prejudice the Employer;

● his application has significant merit because of the conduct of the Employer was harsh, unjust and unreasonable; and

● he is from the United Kingdom (UK) and has lived in Australia for approximately two years. Mr Carroll has had only one job since arriving in Australia and that was with the Employer. Further, Mr Carroll was not familiar with the process of unfair dismissal in Australia and the stringent timeline, particularly as the time limit in the UK is much longer.

[16] The Applicant did not refer to any authorities in his submission.

[17] The Employer submits that Mr Carroll lodged his application with FWA 41 days after his employment ceased. The delay in filing the application beyond 14 days is significant.

[18] Although Mr Carroll may not have known the precise time limit for lodging an unfair dismissal in Australia, he appears to have an understanding of similar laws in the UK and knew that time limits applied in that jurisdiction.

[19] The Employer contends that the Applicant, having dealt with the FWO and his union, was in a position to enquire into the time limit to lodge an application seeking a remedy for alleged unfair dismissal.

[20] Irrespective of the Applicant's discussions with the FWO and his union, information relating to the time limit for filing an unfair dismissal application is available on FWA and other websites.

[21] The Employer contends that Mr Carroll's knowledge of UK laws would suggest that he should have been aware of the need to file an application himself (or by somebody on his behalf) and that there would be a time limit for such applications.

[22] The Employer views with scepticism the Applicant's submission that the FWO would investigate his alleged unfair dismissal without the need to provide the circumstances surrounding such a dismissal.

[23] The Employer contends that Mr Carroll's difficulties in contacting FWA, his Employer and the Employer's payroll provider are not exceptional circumstances to explain why he did not meet the 14 day deadline to lodge his application.

[24] Even if the Employer accepted (which it does not) that Mr Carroll believed his employment ceased on 1 September 2011, the fact is that it was lodged on 26 September 2011 which itself is beyond the 14 day standard deadline for filing such applications.

[25] The Employer contends that Mr Carroll's purported attempts to contact his union was not action intended to dispute the dismissal.

[26] The Employer asserts that it would suffer significant prejudice should an extension of time be granted to file the application.

[27] The Employer relies upon Shields v Warringarri Aboriginal Corporation [2009] FWA 860 for the proposition that the discretion available to the Tribunal pursuant to the FW Act is less than was the case under the Workplace Relations Act 1996 and that an extension of time should only be granted in rare cases where there were exceptional circumstances.

[28] In Lim v Downer EDI Mining [2009] FWA 457, the Employer asserts that a person "being foreign and unfamiliar with their rights" was not an exceptional circumstance and relevant for the purposes of s.394(3) of the FW Act.

[29] Finally, the Employer has referred to Wemyss v Mission Australia Employment Services [2010] FWA 1798 which, it contends, indicates that the onus rests with the Applicant to satisfy the Tribunal to exercise its discretion to extend time to lodge the application. Further, that although not specifically referred to in s.394(3) of the FW Act, "the longer the delay, the greater the difficulty for the applicant in establishing a proper basis for the exercise of discretion" and alleged ignorance of the timeline does not assist in the exercise of discretion to extend time to lodge the application.

[30] Turning to other matters, the Employer submits that:

● the Applicant resigned voluntarily and that a written resignation was requested only after the verbal resignation was given;

● the Applicant did not resign because he was forced to do so as a result of the conduct or course of conduct of the Employer;

● the Applicant's employment with the Employer was less than six (6) months. The Applicant had been previously employed by a different franchise to the Employer. On being employed with the Employer, the Applicant was paid out all of his entitlements with the previous employer and entered into a new contract with the respondent employer to these proceedings; and

● there is no merit in Mr Carroll's application or likelihood that it will succeed.

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

Section 394 Application for unfair dismissal remedy

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(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

(f) fairness as between the person and other persons in a similar position.

[31] In my view there are three issues to be resolved.

● What was the date of the alleged dismissal of the Applicant's employment?

● Was the application made within 14 days after the alleged dismissal took effect?

● If the Applicant did not make application within 14 days after the alleged dismissal took effect, are there exceptional circumstances taking into account the criteria in subsection 394(3) of the FW Act to extend the filing of the application to 7 October 2011?

[32] Although the Employer submitted that Mr Carroll did not resign because he was forced to do so as a result of the conduct of the Employer and that he failed to meet the minimum employment requirement of six (6) months, these matters were not the subject of this particular jurisdictional objection or strongly pressed. For the reasons outlined below, it is unnecessary to address or determine those matters.

What was the date of the alleged dismissal of the Applicant's employment?

[33] On 8 August 2011, Mr Carroll was advised that the Employer was relocating him from the Commercial Department to the Brown Goods Department to take effect from 15 August 2011.

[34] On 12 August 2011, Mr Carroll provided the Employer with correspondence entitled "Offer of Change of Position". The relevant parts of the correspondence are as follows:

"...The decision to move from the shop floor to Commercial was a difficult one because it involved a considerable drop in pay with respect to commission; however, my wife and I decided that we could manage as the benefit was that I would not have to work weekends anymore.

Once again my wife and I have considered the offer and the additional money would be of help however we do not wish to give up our weekends...

Consequently, I am grateful for the offer to take up the position in the Television department [Brown Goods] as part of the sales team but wish to decline it."

[35] Notwithstanding the correspondence, Mr Carroll was advised that he was required to relocate departments.

[36] On 15 August 2011, Mr Cussen, a Director of the Employer, became aware that Mr Carroll had not relocated to the Brown Goods Department. Mr Cussen informed Mr Carroll that he was required to move to the Brown Goods Department immediately.

[37] The discussion which occurred immediately following the direction from Mr Cussen is in dispute. For the purposes of this application, I will adopt Mr Carroll's version, which is that he sought clarification that he no longer worked in the Commercial Department. When advised that he no longer worked in the Commercial Department, Mr Carroll responded, "so I offered to work the next two weeks by way of notice, Mr Cussen did not accept my offer and told me to leave the premises immediately he said, 'clear your desk and get out'. I asked if he was going to honour my two weeks notice pay, holidays etc and he impatiently just said, 'yes, yes'."

[38] On 16 August 2011, Mr Carroll provided a written resignation.

[39] While the parties have provided different versions of discussions and dates, I am satisfied, and find, that Mr Carroll's employment ceased by way of written resignation and the waiving of two weeks working notice by the Employer on 16 August 2011.

[40] Put simply, Mr Carroll's termination of employment and alleged unfair dismissal was effective from 16 August 2011.

Was the application made within 14 days after the alleged dismissal?

[41] It is self evident that, having determined that Mr Carroll's employment ceased on 16 August 2011, the application was not within the statutory timeline of 14 days - it was 41 days overdue.

Are there exceptional circumstances, taking into account the criteria in subsection 394(3) of the FW Act, to allow the Applicant until 26 September 2011 to file his application?

● Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[42] Mr Carroll in his application states at paragraph 15 in answer to Question 3, the following relevant parts:

"After my dismissal I was very low and sought advice from my union. Unfortunately I was very disappointed with their response as I have left numerous messages and no one has got back to me. I was awaiting a response from my appeal (see paragraph 6 above) from Fair Work Australia [which I suspect should be Fair Work Ombudsman] and so rang them on Friday 19th August 2011. The gentleman I spoke to advised me to prepare this document immediately as he believed that I had been constructively dismissed." (my emphasis)

[43] By his own words, the Applicant was advised to make application three (3) days after his employment ceased.

[44] It is also notable that the application, while lodged on 26 September 2011, is dated 20 August 2011.

[45] Having received advice to file an application three days after ceasing employment and prepared the application on the following day, I am unable to conceive from the Applicant's submission what would have prevented him from lodging his application on or about 20 August 2011, which would have been well within the statutory timeline.

[46] In view of my finding above, it is unnecessary in my view to provide detailed reasons regarding the Applicant's and Employer's submissions, save to say:

● the onus is upon the Applicant to satisfy the Tribunal there are exceptional circumstances to warrant an extension of time to file the application;

● the delay in filing the application is not insignificant but any assessment of the lapsed time should not be considered in isolation, but in the context of the reasons which resulted in the delay;

● unfamiliarity or ignorance of specific statutory provisions is not exceptional.

[47] While Ms Brown, on behalf of the Employer, did not respond in a timely manner, it is not exceptional for the Applicant to adopt the passive approach of waiting a week to contact his union.

[48] Mr Carroll's submission regarding his discussions with FWA and FWO officers appears contrary to the advice he received on 18 August 2011, that is, to act immediately.

[49] Finally, it would appear that Mr Carroll has some understanding of similar provisions in the UK. Having such knowledge, I am unable to appreciate his acceptance that FWO would "look after" his unfair dismissal and that he would not have to action an application himself. In conclusion, although the timeline for filing a similar application in the UK is longer, it is not exceptional or excusable for the Applicant not to determine his position in Australia.

● Paragraph 394(3)(b) - the date upon which the Applicant became aware of the alleged dismissal

[50] On 16 August 2011, the Employer, having agreed to pay Mr Carroll two weeks' pay in lieu of notice, brought the employment relationship to an end. After that date, there was no obligation for Mr Carroll to work or for the Employer to provide work. The Employer's only obligation was to pay Mr Carroll his two weeks' pay in lieu of notice and any other entitlements consistent with the Applicant ceasing employment.

[51] I am assisted in reaching this conclusion by the fact that the Applicant contacted and attempted to contact the Employer's Human Resource departments in Melbourne and Darwin on the following day (17 August 2011). Further, that he made contact with Fair Work Australia (I suspect FWO) on 19 August 2011 and it would appear he completed his alleged unfair dismissal on 20 August 2011. For these reasons, I am unable to accept that the Applicant believed his alleged dismissal did not have effect until 1 September 2011.

● Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[52] The Applicant states that on three (3) or four (4) occasions he telephoned FWA "in the weeks after 26 August 2011" to discuss his "forced resignation". While this submission is phrased imprecisely in relation to dates, it would be between 10 and 28 days after his employment ceased. Further, the Applicant has submitted that even though his enquiry related to "forced resignation", no FWA officer raised the issue of the statutory timeline of 14 days, which would be unusual given the nature of his enquiry.

[53] The Employer states that even if Mr Carroll unsuccessfully tried to contact his union in Darwin, this does not amount to action to dispute the dismissal. In view of my other findings and reasons, it is unnecessary to address this particular matter.

[54] Having considered the submissions, I am satisfied that the Applicant took some action to dispute the circumstance of his termination of employment. However, in doing so, I should observe that the submission was absent of any documentary support and the actions of the Applicant are unable to be refuted by the Employer.

● Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[55] As is all too common in consideration of these matters, applicants maintain there is no prejudice to the employer in extending the time limit for filing the application and employers take the position that there is significant prejudice.

[56] No submissions were made by either party relating to the particulars supporting their assertion under this criteria.

● Paragraph 394(3)(e) - the merits of the application

[57] Similar to my comments in paragraph [54], Mr Carroll expresses the view that his claim has significant merit because of the conduct of the Employer, and the Employer alleges that the Applicant's claim has no merit. Furthermore, the Employer argues that Mr Carroll resigned voluntarily and in any event, does not meet the minimum employment period to be protected from unfair dismissal.

[58] Having considered the submissions of the parties, I consider that only after a hearing will the veracity of the assertions be determined. Consequently, I adopt a neutral consideration of this factor/criteria in the overall context of whether the Applicant has demonstrated there are exceptional circumstances in which to extend the filing of the application to 26 September 2011.

● Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[59] No submissions were made by the Applicant or the Employer in relation to this criteria and in the circumstances of the application, it is not relevant.

[60] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

"...a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered." R v Kelly (Edward) [2000] 1 QB 198 at 208.

[61] For the reasons I have set out, taking into account the matters in s.394(3)(a)-(f) of the FW Act and the meaning of exceptional circumstances immediately above, I find that the circumstances which led to the delay in the Applicant filing the application were not exceptional. Accordingly, the application must be dismissed. An order to this effect will be issued jointly with this Decision and Reasons for Decision.

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