s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - application dismissed.

• [1] Mr Christoper Playford (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal from the Australian Federal Police (the Respondent).

• [2] The Applicant's dismissal took effect on 30 January 2025 and this application was lodged on 26 February 2025.

• [3] 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 Applicant filed this application 5 days outside the 21-day period and so the application can only proceed if the Commission grants a further period for it to be made.

• [4] The matter was listed for hearing on 21 May 2025. The Applicant appeared and gave evidence on his own behalf, and Mr C Tibbs, the Applicant's lawyer, also gave evidence on behalf of the Applicant. The Respondent was represented by Ms D Rushbrook.

• [5] For the reasons set out below, I find that the circumstances are not exceptional and will dismiss the application.

• [6] 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]

• [7] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

• [8] 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.

• [9] 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 this application.

• [10] The Act does not specify what reason for the 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]

• [11] The reason for the delay proffered by the Applicant were representative error, and a delay in obtaining records from the Australian Federal Police Association (AFPA) who had assisted the Applicant throughout an investigation process which ultimately led to the Applicant's dismissal.

• [12] The Applicant's evidence shows that:

a) He was advised of his dismissal on 30 January 2025 following an investigation process that had taken place over the previous several months.

b) The AFPA had acted for the Applicant during the investigation.

c) He also engaged a lawyer, Mr Tibbs, on around 23 January 2025.

d) He advised Mr Tibbs by email on 4 February 2025 that he had been dismissed.

e) He attended Mr Tibbs' office on 10 February 2025 to deliver various documents relating to the investigation and his dismissal.

f) He also notified Mr Tibbs on 10 February that he had contacted the AFPA officer, Mr Garth Morrison, who had been assisting him, to obtain some documents that were in the possession of Mr Morrison.

g) The Applicant sent text messages to Mr Morrison on 10 and 12 February 2025 asking for the documents he held in relation to the investigation. The Applicant contacted Mr Morrison again on 21 February 2025 seeking an update, in which he said: "I really need that information soon. Some of my [options] are on a time limit as you know".

h) The Applicant received the documents from Mr Morrison on 25 February 2025 and sent them to Mr Tibbs.

1. He met with Mr Tibbs on 26 February 2025 for the purpose of preparing and lodging this application, at which time he said he was aware he was outside the 21 day time limit.

j) He was reluctant to lodge this application in the absence of the additional documents from the AFPA as he believed they contained pertinent information required to develop his claim.

• [13] Mr Tibbs gave evidence that he received some documents from the Applicant on 10 February 2025 and knew the Applicant was following up with the AFPA to obtain additional documents. His evidence was that at that time, his only instructions were to review the documents for the purpose of giving advice. He said he did not receive instructions to prepare and file an application on behalf of the Applicant until 25 February 2025 and did so on 26 February 2025. Despite this, Mr Tibbs did submit that there was error on his part which warranted an extension of time for this application to proceed. This was because he was not sure he had told the Applicant there was a 21 day time limit or been clear about when such time limit expired.

• [14] The Respondent submitted that the reasons for the delay were not exceptional. It noted that the Applicant had not identified why the documents were necessary for the Applicant to have obtained prior to lodging the Application, particularly where it was not disputed that the Applicant and Mr Tibbs did have a copy of the Proposed Findings Investigation Report, the Outcomes/Findings Report, and the termination letter which set out the reasons for the dismissal.

• [15] In Jordan and MacLeod v Multiplex Australasia Pty Ltd,[4] the Full Bench said:

"[33].... It has been said that "the conduct of the applicant is a central consideration in

deciding whether representative error provides an acceptable explanation for the delay in filing the application". However, the conduct of the applicant will be relevant only to the extent that it contributed to or explains the delay. That is the relevance of the observation of the Full Bench in Clark v Ringwood Private Hospital that "a distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant".

[34] The conduct of an applicant might have contributed to a delay in the filing of an

unfair dismissal application notwithstanding that the delay was also contributed to by

representative error. That might be the case if, for example, the applicant only consults the representative shortly before the expiry of the time limit, the applicant entrusts his or her application to a representative who is obviously unqualified or unwilling or unable to assist, the applicant fails to cooperate with the representative by providing the information or assistance necessary to prepare the application or the applicant leaves the application in the hands of his or her representative for a extended period without receiving any communication from the representative and without taking steps to ascertain the status of the application.

[37] We consider that the facts of the present cases raise similar considerations to those dealt with in Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; (2011) 211 IR 347 where the Full Bench concluded:

[30] Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative's requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application."

[31] As noted by a Full Bench in La Rosa v Motor One Group Pty Ltd, in the context of s 170CE of the WR Act:

As is evident from Clarke, little might be required to satisfy the Commission that the applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the hands of his or her representative. ...

[36] We find that there was an acceptable explanation of the reason for the delay in lodgement of the application - representative error resulting from the oversight of Mr Robinson's original representative of the electronic reminder whilst the filing of the application was within his care and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his clear instructions to file an application and was blameless for the delay in lodgement of the application." (footnotes omitted).

• [16] Having considered the matters raised by the Applicant, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application. There was no need for the Applicant to obtain additional documents prior to lodging his application. He had documents in addition to the termination letter, which had set out the reasons for the dismissal, which were more than sufficient to be able to understand why he was dismissed and make this application. The Applicant was aware that there was a time limit in which to make this application. The fact that he was aware the application was time sensitive should have led him to ensure he was aware of the date by which his application was due to be filed. I accept the evidence of Mr Tibbs that he was not given instructions to file the application until 25 February which was after the 21 day time limit had passed. I do not accept, therefore, that this is a case of representative error that would provide a credible reason for the whole period of the delay.

• [17] This weighs against the granting of an extension of time.

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

• [18] The Applicant confirmed he was aware of his dismissal when it took effect. He was afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

• [19] The Applicant engaged a lawyer and sought advice prior to and after his dismissal took effect. This weighs slightly in favour of an extension of time.

• [20] The delay is relatively short and I cannot identify any 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.

• [21] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.

• [22] The Respondent submitted that the merits were poor given the investigation and the reasons for dismissal.

• [23] The Applicant submitted that that the decision to dismiss him was unreasonably harsh in the circumstances and that more appropriate sanctions were available.

• [24] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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] The Respondent referenced a Commission decision in which the applicant made an unfair dismissal application 17 days late due to his lawyer waiting to receive additional documentation from his employer. In that case the Commission found this was not a valid reason for the delay and was not satisfied there were exceptional circumstances. [5]

• [27] The Applicant cited a different decision of the Commission in which an extension of time was granted on the basis of representative error. [6]

• [28] I consider this case turns on its own facts, and this criterion is a neutral consideration in the present matter.

• [29] As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and the test of 'exceptional circumstances' establishes a high hurdle.

• [30] 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, either when the various circumstances are considered individually or together. 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). Accordingly, the application for an unfair dismissal remedy is dismissed.

Mr C. Tibbs, legal representative from Elringtons, for the Applicant

Ms D. Rushbrook, Principal Lawyer from the Australian Federal Police, for the Respondent

[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].

[4] [2024] FWCFB 440.

[5] Beau Scholtz v All Skills Resources Pty Ltd [2025] FWC 1326.

[6] Tim Sutcliffe v Aldi Stores [2024] FWC 3144.

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