Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

The Hospitals Contribution Fund of Australia Ltd t/a HCF

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

[1] This decision concerns an application by Mr Evan Skinner (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).

[2] The Applicant's employment with The Hospitals Contribution Fund of Australia t/a HCF (Respondent) was terminated with effect from 25 August 2020. The unfair dismissal application was lodged at 12:11am on 16 September 2020.

[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 period of 21 days ended at midnight on 15 September 2020. The application was therefore filed after the expiry of the 21 day period. The Applicant asks the Commission to grant 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, unprecedented or 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]

[5] 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.

[6] Section 394(3) of the Act 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.

[7] 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.

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

[9] The 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 the applicant's favour, however all of the circumstances must be considered.[5]

[10] The Applicant's application was lodged electronically at 12:11am on 16 September 2020.

[11] The Applicant prepared a statement which included the following written explanation in relation to the reason for his delay in filing his application:

"I had previously begun my application for unfair dismissal within the 21-day period however after over several confidential intimidating interrogations at the hands of this organisation I remained shaken inside my 1-bedroom apartment while knowing the company had access to my electronic devices. So anxiety, stress and the intimidation I had experienced also contributed to the delay.

Within the final hour before the deadline my internet VPN connection was having significant delays and connection issues and was struggling to upload the application as the deadline approached."

[12] At the hearing of his extension of time application, the Applicant gave oral evidence that it was around ten days after his dismissal that he began preparing his application but it was not until the evening of 15 September 2020 that he ultimately decided to file it. The Applicant also explained, that between 11:00pm and midnight on 15 September 2020, he was unable to upload the document due to difficulties with his VPN connection, which he was using for his own internet security. With respect to his VPN connection, he also said that "normally once it's connected it's fine". After the hearing concluded, the Applicant filed a screenshot which he contended was a Microsoft record of "unusual attempts to access and sync data" from his private email account on 15 September 2020 when he had "perceived my internet connection performing as if it were being attacked".

[13] In cross-examination, the Applicant gave evidence that he was stuck in bed for "a few" of the 21 days following his dismissal. He did not produce a medical certificate in support but said he could obtain one.

[14] The Respondent denied the Applicant's allegations as they related to unparticularised instances of intimidation and attempts to "sync" or otherwise access the Applicant's private email account. In summary, it argued that the Applicant's materials did not rise to the level required to prove those allegations.

[15] I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay. The Applicant was aware of the 21 day timeframe for making this application and indeed had commenced preparing it in ample time to file within the statutory timeframe. Taking his oral evidence of medical incapacity at its highest, the Applicant was affected for no more than a few days of the 21 days following his dismissal. Although I have sympathy for the Applicant, it is not unusual that a person might experience anxiety or stress following the loss of their employment. That the Applicant did not commence attempting to lodge his application with the Commission until the last hour on the last day of the 21 day period provided for under the Act was his choice. It is not unusual or uncommon for people to experience technical or other computer related difficulties when attempting to upload or send documents electronically. Had the Applicant attended to the filing of his application earlier, then it could have been filed using other methods such as by telephone and his difficulties with internet or VPN connectivity would have been overcome. To the extent that the Applicant sought to argue that the Respondent was responsible for attacking his private email or network, the materials before the Commission simply do not establish this.

[16] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

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 an unfair dismissal application. Therefore, the Applicant was aware of the ending of the employment on the day it took effect and had 21 days to lodge his application. This factor does not weigh in favour of a finding of exceptional circumstances because the Applicant had the benefit of the full 21 day period to lodge an application.

Any action taken by the person to dispute the dismissal

[18] I am required to take into account any action to dispute the dismissal. The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the future.[6]

[19] The Applicant gave evidence that he immediately disputed the dismissal, by email of 25 August 2020 which was in evidence before the Commission. On its face, the email expresses strong disagreement with the dismissal decision and contends that it was based on false allegations and a lack of genuine concern regarding investigation of the matters. Although the email does not expressly say that the Applicant will challenge the dismissal, in my view the issues in contest had not reached finality and this amounts to some action within the meaning of s 394(3)(c).

[20] This circumstance weighs slightly in favour of a conclusion that there are exceptional circumstances.

[21] I cannot identify any prejudice that would accrue to the company 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 granting of extension of time.

[22] The Act requires me to take into account the merits of the application in considering whether to grant an extension of 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. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[23] 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. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[24] 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 when considered individually or together. The absence of an acceptable or reasonable explanation for the delay weighs strongly against a finding of exceptional circumstances, whereas the action taken to dispute the dismissal weighs only slightly in favour and the other factors are at best neutral. 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 must be dismissed.

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

[3] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40].

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31] as cited in McClelland v New Horizons Pty Ltd t/a New Horizons [2020] FWC 5075.

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [39].

[6] Wilson v Woolworths [2010] FWA 2480 at [19]- [21].

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