Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside the time prescribed - whether there are exceptional circumstances - extension of time refused - application dismissed.

[1] This is an edited version of my decision given ex tempore and recorded in transcript on 6 April 2018.

[2] Miss Chelsea Jane McRae (applicant) made an application on 10 January 2018 for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[3] Section 394(2) of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (the Commission) allows under s.394(3). The date that the applicant's dismissal took effect is identified in her application as 15 December 2017, but she did not lodge her application until 10 January 2018. The applicant seeks an extension of time as her application was filed 26 days after her dismissal took effect. The applicant's former employer, Peerless Products Pty. Ltd. (respondent), opposes the granting of an extension of time.

[4] I conducted the hearing by telephone on 6 April 2018. The applicant appeared for herself and gave evidence. The respondent was represented by Mr Thomas Page of the Victorian Chamber of Commerce and Industry, with permission pursuant to s.596 of the Act.

[5] The Commission has to be satisfied, pursuant to the Act, that there are exceptional circumstances to allow an extension of time. I rely on a decision of the Full Bench of the Commission in Cheyne Leanne Nulty v Blue Star Group Pty Ltd[1], where the Full Bench stated:

'[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.'

[6] Turning to deal with specific factors, under s.394(3)(a) of the Act, I need to have regard to the reason for the delay. A number of reasons were advanced. First of all, it is said that there was a delay in providing a separation certificate and that the applicant claims to have been advised that nothing could be done without such a certificate. It is well established that ignorance of the law is no excuse and this seems to be simply false. In any event, this claim seems unlikely and I do not accept it. It is agreed that the applicant was aware of her dismissal from 15 December 2017 and could have filed an application at least from that date.

[7] In Z Gao v Department of Human Services[2], Mr Zhan Gao claimed that he was waiting for a review and that justified the delay. Similarly in this case, waiting for a further letter is no excuse. In relation to travel overseas, the applicant has advised that she is not relying on that as an excuse for delay. In my view, there is no acceptable or appropriate reason for the delay advanced in this case and that counts against the application for an extension of time.

[8] Section 394(3)(b) of the Act, "Whether the person first became aware of the dismissal after it had taken effect". It is agreed that the applicant became aware of the dismissal on 15 December 2017.

[9] Section 394(3)(c) of the Act, "Any action taken by the person to dispute the dismissal". It is said that the applicant argued with the employer about the dismissal and raised a number of issues on 11 December 2017, and sought to do so further in between that time but was defeated by the Christmas period and other factors, and also tried to raise the issue on 19 January 2018.

[10] I am satisfied that the applicant did take action to dispute the dismissal. It may be that the later action is not relevant given that it was after the application was filed. In my view, this is a neutral factor given the limited attempts to raise the issue. In the alternative, it counts in favour of the applicant.

[11] Section 394(3)(d), "Prejudice to the employer". The period is a short period and no prejudice exists. This is a neutral factor.

[12] Section 394(3)(e), "The merits of the application". In this matter, the applicant has made a number of allegations which depend on evidence to substantiate them. They could not be effectively determined without further evidence and submissions. The respondent has denied the allegations. This is a neutral factor in the circumstances.

[13] Section 394(3)(f), "Fairness as between the person and other persons in a similar position". In Ivan Whittle v Redi Milk Australia Pty Ltd[3], it was said that this factor has a very limited scope of operation in that it is concerned with:

'... other applicants employed by the same employer and affected by the same issue who filed applications in time.'[4]

[14] There are no other persons in a similar position who made applications in time. Therefore, the complaint of the applicant is not relevant under that paragraph.

[15] The question then comes to whether or not there are exceptional circumstances justifying an extension of time. Having regard to the findings I have made in relation to each factor, I am not satisfied that there are exceptional circumstances warranting an extension of time.

[16] I refuse the application for an extension of time. The application is dismissed.

[17] An order giving effect to my decision is issued separately in PR602041.

[1] [2011] FWAFB 975.

[2] [2011] FWAFB 5605.

[3] [2016] FWC 3773.

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