s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

• [1] This decision concerns an application by Mr David Parker (Parker/Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) made on 5 October 2023 (Application).

• [2] In the Application, the Applicant states that his employment with Jake McMahon Hair Pty Ltd (Respondent) commenced on 19 July 2022 and was terminated with effect from 10 June 2023.

• [3] Section 394(2) of the FW 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). If the Applicant's dismissal took effect from 10 June 2023, the Application is 96 days outside the 21-day period. The Applicant asks the Fair Work Commission (Commission) to allow a further period for the Application to be made under s.394(3).

• [4] In its Form F3 Employer Response, the Respondent did not dispute the period of employment, but objected to the Application on the following grounds:

• The Applicant resigned and was not dismissed by the Respondent;

• The Applicant has not completed a period of employment of at least the minimum employment period; and

• The Respondent is a small business employer and complied with the Small Business Fair Dismissal Code.

• [5] Having regard to the decision of a Full Bench of the Commission in Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited,[1] the first issue to determine is whether the Applicant is allowed an extension of time to make the Application.

• [6] The matter was heard as a determinative conference before me on 4 December 2023. The Applicant was self-represented. The Respondent was represented by one of its directors, Mr Brian McMahon.

• [7] Both the Applicant and Brian McMahon gave evidence during the conference, and the following documents were admitted into evidence:

• Applicant's correspondence to the Chambers of Vice President Catanzariti dated 23 October 2023 (Exhibit 1);

• Applicant's Fair Work Ombudsman Statement dated 8 August 2023 (Exhibit 2); and

• Applicant's requests for employee records (Exhibit 3).

• [8] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).

• [9] On 19 July 2022, the Applicant commenced casual employment with the Respondent as a Senior Barber.[2]

• [10] The Respondent employs 3-5 employees.[3]

• [11] On or about 22 November 2022, the Applicant's employment was converted to full-time employment.[4]

• [12] On 10 June 2023, the Applicant and Mr Jake McMahon, a director of the Respondent, had a discussion. The Applicant contends that his employment was terminated during this discussion. The Respondent contends that the Applicant resigned. Irrespective of the competing contentions, it is not in dispute that the Applicant's employment ended that day.

• [13] On 12 June 2023, the Applicant contacted the Fair Work Ombudsman (FWO) regarding unpaid entitlements.[5]

• [14] On 27 June 2023, the Applicant sent the Respondent a request for copies of his employee records pursuant to Regulation 3.42 of the Fair Work Regulations 2009.[6] The Applicant made follow up requests on 11 and 18 July 2023.[7]

• [15] On 18 July 2023, the Applicant lodged a request for assistance with the FWO.[8]

• [16] On 5 October 2023, the Applicant was advised by the FWO case officer that he should contact the Commission regarding an unfair dismissal application.[9] The Application was made later that day.

• [17] The Applicant stated that he is yet to receive a letter of termination or the reason for the termination of his employment, and that he was not aware that he could make an application for an unfair dismissal remedy prior to 5 October 2023.

• [18] The FW 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.[10] 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.[11]

• [19] 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.

• [20] 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.

• [21] 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.

• [22] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[12]

• [23] I now consider these matters in the context of the application.

• [24] The FW 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 an applicant's favour, however all of the circumstances must be considered.[13]

• [25] The Applicant submitted two reasons for the delay:

(i) The Respondent's failure to provide written notice of termination as required by s.117 of the FW Act; and

(ii) That he wasn't aware that he could make an application for an unfair dismissal remedy and was focused on pursuing an alleged underpayment of entitlements.

Respondent's failure to provide written notice of termination

• [26] The Applicant submitted that as the Respondent failed to provide written notice of the day of termination and the reason for termination of his employment, the 21-day period has not commenced. The Applicant submitted in these circumstances, an extension of time is not required.

• [27] While there is no requirement to provide a reason for termination of employment under s.117, it is correct that an employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination.

• [28] As set out earlier, there is no dispute that the employment relationship ended on 10 June 2023 and that the Applicant was aware of that. However, there is a dispute as to whether the employment was terminated on the Respondent's initiative or by the Applicant's resignation.

• [29] Assuming for present purposes that the Applicant's employment was terminated on the Respondent's initiative and the Respondent did not comply with s.117 by providing written notice of the day of termination, that does not invalidate, or render void, the termination of the employment relationship.

• [30] In Metropolitan Fire and Emergency Services Board v Garth Duggan,[14] a Full Bench of the Commission considered the interrelationship between s.117 and s.383(a)(i) of the FW Act in the context of whether 'notice of the dismissal' in s.383(i)(a) must comply with the requirements of s.117. After referring to relevant authorities, the Full Bench stated:

[32] ...it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.

[33] Accordingly, a notice of termination which does not comply with s.117 of the Act may be effective to bring about the termination of the employment relationship and may constitute "notice of the dismissal" within the meaning of s.383(a)(i) of the Act. Construing the Act in this way is consistent with the purpose of the relevant provisions, as set out above.[15]

• [31] It follows that the Applicant's contention that the 21-day period did not commence on 10 June 2023 must be rejected.

Lack of awareness of unfair dismissal laws/pursuing alleged underpayment

• [32] In relation to the Applicant's lack of awareness that he could make an application for an unfair dismissal remedy and that he was focused on pursuing an alleged underpayment of entitlements, I do not consider either of these matters to be an acceptable or reasonable explanation for the delay.

• [33] It is well established that a lack of knowledge or ignorance of the applicable time limits for the filing of general protections or unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[16]

• [34] A simple internet search would have pointed the Applicant to the Commission's website which has a range of resources to assist self-represented litigants including information about who can apply and the process for lodging an application.

• [35] It is also well established that a delay in filing an unfair dismissal application whilst pursuing an alleged underpayment of wages or entitlements is not an acceptable or reasonable explanation for the delay.[17]

• [36] Accordingly, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

• [37] The Applicant was aware that his employment ceased on 10 June 2023 and therefore had the full period of 21 days to make the Application. This factor does not weigh in favour of a conclusion that there are exceptional circumstances.

• [38] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[18]

• [39] However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[19]

• [40] While the Applicant made requests for copies of his employee records to assist with his underpayment enquiry[20] the Applicant accepted, and I so find, that he did not take any action to dispute the dismissal prior to the making of the Application on 5 October 2023. This factor weighs against a conclusion that there are exceptional circumstances.

• [41] It is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[21]

In the context of an application for an unfair dismissal remedy, a 96-day delay can only be described as lengthy.

• [42] The Respondent submitted that it would suffer prejudice if an extension of time is granted but it did not identify any relevant prejudice. A relevant prejudice is one that the Respondent would not have suffered, had the Application been made within 21 days of the dismissal taking effect.[22]

• [43] The resolution of whether the Applicant was dismissed will turn on whose version of the discussion between the Applicant and Jake McMahon on 10 June 2023 is preferred. A lengthy delay of 96 days may impair the recollection of one or both participants giving rise to a relevant prejudice.

• [44] This factor weighs against a finding of exceptional circumstances.

• [45] The FW Act requires me to take into account the merits of the application in considering whether to extend time.

• [46] It is not in dispute that the Respondent is a small business employer and that the Applicant has not completed a period of employment of at least the applicable minimum employment period: one year.[23] The Applicant is therefore not a person protected from unfair dismissal.[24] This factor weighs strongly against a conclusion that there are exceptional circumstances.

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

• [47] 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.

• [48] The test of 'exceptional circumstances' establishes a 'high hurdle'.[25] 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.

• [49] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).

• [50] Even if I was satisfied that there were exceptional circumstances, I would have refused to exercise my discretion to allow an extension of time as the Applicant has not completed a period of employment of at least the minimum employment period and is therefore not a person protected from unfair dismissal.

• [51] The Application is dismissed. An order to that effect will be issued with this decision.

[1] [2022] FWCFB 234 at [10], [17].

[2] Application; Form F3 Employer Response at q.1.2-1.4; Exhibit 2 at [1].

[3] Application; Form F3 Employer Response at q.1.7; Transcript of Proceedings.

[6] Exhibit 3 (Hearing Book at pp.34, 36).

[7] Exhibit 3 (Hearing Book at pp.33, 35).

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [13].

[12] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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

[14] [2017] FWCFB 4878.

[15] Ibid at [32]-[33]; See also Rhidian Lloyd Cody v Stratacache Australia Pty Ltd [2022] FWCFB 116 at [29].

[17] Coles Supermarkets Australia Pty Ltd v Alexander Tapier [2021] FWCFB 2559 at [25]; Matthew Dakin v Farmgate MSU Pty Ltd [2022] FWC 1707 at [4]; Sxa Fang Chong v SSM International Pty Ltd [2022] FWC 2591 at [18]; Weijie Song v Hilltop Meats Pty Ltd [2022] FWC 3274 at [29]- [30]; Beau Paardekooper v Sherocon Pty Ltd [2022] FWC 3372 at [26]- [28].

[18] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[19] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].

[21] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 556_; Brodie-Hanns v MTV Publishing Ltd_ (1995) 67 IR 298 at 299-300; GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38 at [51].

[22] Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [31].

Printed by authority of the Commonwealth Government Printer