Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of statutory timeframe - application for extension of time dismissed.

[1] Ms Emma Croker (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Erndit Logistics Pty Ltd (the Respondent).

[2] On the Applicant's Form F2 - Application for Unfair Dismissal, Ms Croker states that she was dismissed by the Respondent on 14 November 2022. The Applicant lodged her application on 16 January 2023. The application was lodged 42 days outside the statutory time limit prescribed by s.394(2) of the Act.

[3] The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes granting an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension before a hearing was held before me on 29 March 2023.

[4] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

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

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

• [5] The test of 'exceptional circumstances' establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

"[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] Although Nulty concerned the expression 'exceptional circumstances' in the context of s.365 of the Act, its reasoning applies to s.394(3).

[7] For the Applicant's unfair dismissal application to proceed, it is necessary to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are "exceptional circumstances", taking into account each of the matters in s.394(3) of the Act.

Reason for the delay (s.394(3)(a))

• [8] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

"The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each." [5]

• [9] It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

[10] The Applicant raised that she had a psychological breakdown and was isolated from any support network. I note that the Applicant has had issues with depression, anxiety and post-traumatic stress disorder which would have been exacerbated with her dismissal. As the dismissal was near the Christmas period, she was unable to seek any support such as seeing a General Practitioner or a Psychologist who could assist her during the Christmas period as everything was closed. The Applicant did state she lived with her partner who also worked with the Respondent, but he did not assist her with the Form F2 Application as the Applicant did not want him to lose his job for assisting her. The Applicant stated that she did not have a vehicle and that she lived in a rural location near Gympie and received no contact or communication with the Respondent after her date of dismissal.

[11] I am aware that these challenges would impact lodging an application on time, however, the Applicant has not established an exceptional circumstance. In the Applicant's oral evidence, she stated she was able to find the Form F2 around late November/early December through word of mouth although she was unclear about the specific date as to when she found the Form F2 on the Fair Work Commission website. The Applicant states she was only able to lodge the Application once she had support from a Disability Support Agency.

[12] The Fair Work Commission website provides a warning stating the following "Remember: you must apply within 21 days after the date of your dismissal. It is important to get your application to us on time. You can apply even if you don't have all the information yet. You can send us more details and supporting documents after you have applied."

[13] I am not satisfied that the explanation provided by the Applicant sufficient reason to meet the high threshold of establishing an exceptional circumstance considering the Applicant was aware of the unfair dismissal process during late November/early December. Even if the Applicant required assistance later on, the Fair Work Commission website made it clear that even if she did not have all the information yet, more details could be provided after she had applied.

[14] The Applicant has not established a sufficient reason for delay. This consideration weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[15] The Applicant provided that she was aware that her dismissal date was 14 November 2022 through a phone call with the Respondent on 15 November 2022. The Applicant claims that she was summarily dismissed on 14 November 2022 because of a safety breach, and that she was not given any formal notice regarding the termination. In the Applicant's own evidence, she stated she followed up with her manager on 15 November 2022 through a phone call, to which she asked 'if she doesn't have a job, to which she states the Respondent answered 'yes'.

[16] The Applicant states that she met with her manager on 15 November 2022 regarding why she was summarily dismissed for a safety breach, and this caused her to have a psychological meltdown because of the harshness of the event. The Applicant also stated that she was made aware around late November/early December through word-of-mouth from a few people that she should lodge an unfair dismissal claim.

[17] I am satisfied that the Applicant was aware of her dismissal date and the unfair dismissal process within the timeframe. This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

[18] The Applicant took steps to dispute the dismissal asking what the reasons for dismissal were during a phone call on 14 November 2022. This was followed up with the Respondent during a meeting the next day on 15 November 2022 where she maintained that her dismissal was an excessive response to her vehicle accident. Furthermore, the Applicant was not included in any meetings or conversations regarding an investigation. I find that the Applicant did take sufficient steps to dispute her dismissal. This consideration weighs in favour for an extension of time.

[19] The Respondent raised a submission in relation to this factor that it would prejudice them as the Commission rarely grants an extension of time past the statutory time frame. I consider this factor to be neutral.

• [20] In Kornicki v Telstra-Network Technology Group,[7] the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the

Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[21] Without a hearing on the merits, it is difficult to consider the merits of the Applicant's claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

• [22] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[8]

[23] In Gaelene, Manson v Marthakal Homeland Resource Centre Inc [2015] FWC 2880, Commissioner Bissett did not find anxiety that did not totally incapacitate the Applicant was not a sufficient reason for an extension of time and stated at [13]

"It is not unusual for a person to suffer anxiety following a dismissal. The circumstances surrounding the cessation of her husband's employment with the Respondent and the reasons given for standing her down undoubtedly added to this anxiety. It is also not unusual for a person to be under the care of a doctor for that anxiety".

[24] Furthermore, in Mill v Cape Jervis Tavern [2016] FWC 1955, O'Callaghan SDP found that anxiety, panic attacks and depression without providing the evidence to establish the reasons for why the Applicant was unable to lodge the Applicant in time is not an exceptional circumstance.

[25] Although, I am sympathetic to the circumstances which the Applicant has faced during the making of her application, other decisions of the Commission have weighed against an extension of time in similar circumstances. This consideration weighs against an extension of time.

[26] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[7] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[8] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818, [31].

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