Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of the time prescribed in s.394(2) - consideration whether to allow a further period within which application should be made - whether there are exceptional circumstances - not satisfied there are exceptional circumstances - no basis to consider exercising discretion to allow a further period to make application - application dismissed.

[1] Catherine Jane Coates (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). She commenced employment with Johansson Solicitors Pty Ltd (Respondent) on or about 20 March 2017 as a solicitor.

[2] The Applicant's employment was terminated by the Respondent with effect from 30 March 2020. The reason given by the Respondent for the decision to terminate the Applicant's employment was that her position was redundant as a result of a loss of business stemming from the impact of the coronavirus pandemic.

[3] The Applicant lodged her application on 18 May 2020. 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 20 April 2020. The application was therefore lodged 28 days after that period had elapsed. The Applicant asks the Commission to allow a further period for the application to be made under s.394(3). The Respondent opposes this request.

[4] 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]

[5] 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]

[6] 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.

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

• (a) the reason for the delay;

• (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);

• (e) the merits of the application; and

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

[8] 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 now consider these matters in the context of the application.

[9] The Act does not specify what reason or reasons 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.[3]

[10] The Applicant cited the following matters as an explanation or reasons for the delay in lodging the application. The Applicant said that initially she had no reason to suspect that the redundancy may not be a genuine redundancy. She said that she had little time to consider the fairness of her dismissal as she and her family were adapting their lives in response to the coronavirus pandemic and the consequent restrictions imposed by government. She said that she had focussed all her attention on home schooling her two children (Prep and Grade 2) who were at an important stage of their development and education.

[11] The Applicant said that on 12 May 2020, she was contacted by a former colleague who told her about an advertisement for a new solicitor posted by the Respondent. The Applicant said that she reviewed the advertisement on the 'Seek' website, and that the position description and duties were almost exactly those of her position, which she had been told by the Respondent was redundant. She said the advertisement advised prospective applicants that the position could be full time or part time, and that the Respondent would be flexible to find a working arrangement which suited.

[12] The Applicant said that she immediately set about researching the requirements to constitute a genuine redundancy, and then prepared and lodged her application on 18 May 2020. The research was principally undertaken on 12 May 2020 at which time the Applicant consulted the Commission's website, garnered an understanding of the constituent elements of a genuine redundancy, understood that an unfair dismissal application could be made, understood the timeframe within which such an application must be made, and critically, that the time for making such an application had already passed. She understood that she would need to seek an extension of time.

[13] Although the Respondent elected to not cross examine the Applicant, it says the Applicant has provided no evidence of urgent action being taken after 12 May 2020 or a reasonable explanation for the delay between 13 May 2020 and 18 May 2020. The Respondent's principal proposition is that in the circumstances, this unexplained delay outweighs any other matter that might weight in favour of a finding that there are exceptional circumstances.

[14] It is clear on the Applicant's evidence that she became aware of her right to make an unfair dismissal application and the time limit prescribed in s.394(2) of the Act on 12 May 2020. The Applicant has provided no persuasive explanation for the delay between 13 May 2020 and 18 May 2020. I do not accept, as the Applicant contended, that she needed to work on her application to put it in its best form, in circumstances where time for lodgement had already lapsed. To the contrary, as a solicitor, one would expect the Applicant, on learning of her right to make an application for unfair dismissal and the fact that her application would be lodged outside of the time prescribed for such applications, to act promptly. The application form is not overly complex, and certainly one that a trained solicitor, even one unfamiliar with this jurisdiction, should readily be able to navigate. Moreover, the Applicant had available to her all the necessary information in order to complete the application and lodge it electronically on 12 May 2020, or perhaps on 13 May 2020. I do not accept as an explanation that further research for several days thereafter was necessary.

[15] I accept the Applicant's explanation for the delay for the period 21 April 2020 to 12 May 2020. Essentially, the Applicant took the termination letter provided by the Respondent at face value and had no reason to doubt the genuineness of the reason for her dismissal. However, I am not satisfied that the Applicant has provided a credible or acceptable explanation for the delay after 12 May 2020.

[16] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for that part of the delay between 13 May 2020 and 18 May 2020 and that is a matter that weighs against the Applicant in this case.

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

[17] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. That this is so might normally weigh against the Applicant because she had the benefit of the full 21-day period to lodge an application. However, given the circumstances of the Applicant immediately after the dismissal, particularly her evidence that she did not have any reason to suspect the genuineness of the reason for her dismissal or its unfairness, I consider this factor to be neutral.

[18] The Applicant said that she took no steps or action to dispute the dismissal. The failure to take any step or action initially and until 12 May 2020 to dispute the dismissal is understandable as she had no reason to dispute it because she had no reason to suspect that the redundancy was anything other than genuine. However, on her own account, she also took no step, other than to lodge the application to dispute the dismissal after she learned that the Respondent had advertised for a solicitor. The Applicant said that she took no steps to dispute the dismissal after 12 May 2020 because, inter alia, attempts to contact her employer regarding another unrelated matter were unsuccessful and that she had expected the Respondent to contact her if work had become available. I find this unpersuasive as an explanation for not taking a step to raise or dispute her dismissal with the Respondent. The termination letter given to the Applicant and dated 30 March 2020 states that the Applicant will be notified if her reengagement becomes possible. On discovering that a solicitor's position was being advertised by the Respondent, it would have been reasonable, particularly for an experienced solicitor, to contact the Respondent regarding the advertisement after 12 May 2020 and to question the reason for her dismissal. The absence of any step or action to dispute the dismissal, after 12 May 2020, particularly given the unexplained period of delay, is also a matter that weighs against the Applicant and a conclusion that there are exceptional circumstances.

[19] I cannot identify any prejudice that would accrue to the Respondent if I were to allow a further period within which the application could be lodged. The Respondent did not contend to the contrary. The mere absence of prejudice is not a factor by itself that would point in favour of the grant of extension of time. However, as the absence of prejudice does favour the Applicant, I would attribute some, albeit only slight, weight to that factor in the consideration of whether there are exceptional circumstances.

[20] I am required 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 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. Indeed, as s.396(a) makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. Nonetheless an assessment of the merits is required. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[21] In essence the Applicant's contention is that the redundancy claimed by the Respondent was not a genuine redundancy because:

• the job she performed is still required to be performed;

• the Respondent made no attempt to consult with her at any point prior to or after the dismissal;

• the Respondent could reasonably have redeployed the Applicant within the organisation, by offering her the opportunity to work as a solicitor on a casual basis, which the Respondent had informed the Applicant was the basis on which all solicitors would be employed going forward; and

• the Respondent was now advertising for a solicitor to perform the work the Applicant had previously undertake, raising doubt that the reason given for the dismissal was genuine or valid.

[22] The Respondent says that the merits of the Applicant's case are arguable but are outweighed by the factors weighting against a finding that there are exceptional circumstances.

[23] Taking the Applicant's case in a favourable light, it is possible she will overcome the initial bar to the application, namely whether the dismissal was a case of genuine redundancy. The absence of consultation and the consideration of an alternative working arrangement might also result in a conclusion that the dismissal was unfair. However, the advertisement might rationally be able to be explained by the Respondent and the impact of an absence of consultation on an assessment of whether the dismissal was unfair might be diminished by the circumstances in which the decision needed to be taken. Overall, on the limited material, the Applicant's case is not without merit. That this is so weighs in the Applicant's favour in assessing whether there are exceptional circumstances.

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

[24] 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.

[25] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

[26] Statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise, except in exceptional circumstances, the right to bring the action will be lost.

[27] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case. In my view, this is so, whether the various circumstances are considered individually or together. There is no satisfactory explanation for a period of the delay which is to be assessed in the context of knowledge that time for making an application had already elapsed. In these circumstances this factor weighs significantly against a conclusion that there are exceptional circumstances. I have concluded that Ms Coates' application for a remedy is not without merit and so this is a favourable consideration. That there is no identifiable prejudice that would accrue to the employer, while not a factor by itself that would point in favour of the grant of extension of time, does favour the Applicant. The other matters which I am required to take into account either weigh against a conclusion that there are exceptional circumstances or are neutral for the reasons stated. When I consider each of the matters set out in s.394(3), in the context of the evidence in this case, attribute weight as I have done and look at those circumstances individually and collectively, I am not satisfied that there are exceptional circumstances.

[28] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to consider exercising my discretion to allow an extension of time. I decline to allow a further period under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

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

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