What happened

George Benzier was employed by Schools Ministry Group Incorporated (SMG) as General Manager, People & Culture from 29 July 2019 until his employment ended effective 17 April 2020 amid COVID-19 driven restructuring (paras 12-16). He considered the dismissal unfair and filed an unfair dismissal application within the 21-day statutory period on 25 April 2020 (U2020/5667) (para 17). That application proceeded through conciliation, directions were issued and hearing dates listed for 16–17 July 2020 (paras 19-20).

On 5 June 2020 Mr Benzier emailed the Commission a short message withdrawing his case; the Commission cancelled the hearing and administratively closed the file (paras 21-23, 33-35). Later, on 17 September 2020, he filed a second unfair dismissal application (U2020/12516) seeking to re-open the discontinued matter and, alternatively, an extension of time to lodge this fresh application (paras 23-26). He relied upon ill-health that led to hospitalisation in July and newly acquired information (in September) that SMG had later recruited human-resources staff and spent money which he said undermined the employer's 'financial difficulties' explanation (paras 29, 63-71).

The Commission (Deputy President Anderson) heard evidence by telephone on 7 October 2020 and determined two contested questions: (1) whether the Commission had power to set aside a voluntarily filed discontinuance; and (2) whether exceptional circumstances existed under s 394(3) to allow a 132-day late filing. The Commission concluded it lacked power to set aside the discontinuance and, separately, that no exceptional circumstances were proved; the extension was refused and the second application dismissed as out of time (paras 31-42, 43-101, 101-102).

Why the court decided this way

Two discrete legal conclusions drove the outcome.

Power to set aside discontinuance (procedural competence)
- The Commission held that a notice of discontinuance is "self-executing" and, once communicated, brings the application to an end (para 35). The Commission's general corrective and procedural powers under ss 586, 589 and 603 of the Fair Work Act 2009 cannot be used to set aside a discontinuance (para 38). The Deputy President relied on prior Full Bench authorities observing that only in cases of mistake or duress might a discontinuance be conceptually void, but even then relief by way of declaratory orders is typically a matter for a court because the Commission is an arbitral body without jurisdiction to grant declaratory relief (paras 36-37, citing Narayan and AB v Tabcorp) (paras 36-37). For these reasons the Commission dismissed the application to re-open the discontinued matter (paras 31-42).
Extension of time under s 394(3) (exceptional circumstances)
- The statutory test (s 394(3)) requires the Commission to be satisfied that "exceptional circumstances" exist, considering specified factors including reason for delay, awareness of dismissal, action taken to dispute dismissal, prejudice to employer, merits, and fairness (para 45). The Commission emphasised the "high hurdle" and followed the interpretative approach in Nulty and subsequent Full Bench guidance (paras 48-51).
- The Deputy President divided the 132-day delay into two parts: (a) the period from expiry of the 21-day window to the discontinuance (28 days), and (b) the period from discontinuance to filing the second application (104 days) (para 55). The earlier period was explained by the existence of a live timely application which was voluntarily discontinued, a considered act by Mr Benzier (paras 56-62). Voluntary discontinuance weighed against extension.
- The later period was partly explained by hospitalisation (1–8 July 2020) and later acquisition (15 September 2020) of information about SMG’s recruitment and expenditure (paras 63-71). The Commission accepted the hospitalisation occurred but found it insufficient to explain the entire 104-day delay: only seven days of the 104 were hospitalised, there was an unexplained gap between 5 June and 1 July, and the applicant was able to file the second application while still on medical leave (paras 64-66). The information acquired in mid-September was held to be additional particulars corroborating an earlier-held belief (his first F2 had already alleged concern about funding), not a new basis entitling him to relief (paras 72-75). Taking all s 394(3) factors together, no exceptional circumstances were found (paras 94-100).

The combined effect of those findings was that the Commission could not re-open the discontinued proceeding and could not extend time for the late application, so there was no jurisdiction to reach the merits (paras 101-102).

Before and after state of the law

Before:

The decision sits within an established line of Full Bench authorities requiring a strict approach to extensions of time under s 394(3), insisting on "exceptional circumstances" and a recognised "high hurdle" (see Nulty at para 49 and subsequent Full Bench citations at paras 50-51). Prior decisions also established that a notice of discontinuance is self-executing (Narayan) and that, where mistake or duress is alleged, a court may be the proper forum to challenge the discontinuance (paras 36-37, 41).

What this decision clarifies (after):

It confirms and applies those authorities in a concrete context: the Commission cannot, under its statutory powers, set aside a voluntarily filed discontinuance or revive proceedings administratively. The Deputy President expressly held that ss 586, 589 and 603 do not empower the Commission to render a discontinuance a nullity (para 38).
It reiterates the rigorous approach to s 394(3): voluntary discontinuance and long unexplained delay weigh heavily against finding exceptional circumstances, and medical incapacity or post-hoc acquisition of particulars will not, without more, satisfy the threshold (paras 62-66, 72-75, 94-100).

Thus, the decision reinforces procedural finality and the practical consequence that applicants who withdraw timely applications face substantial obstacles to re-litigating the same complaint months later.

Key passages with plain-English translation

Para 35: "Once filed, a Notice of Discontinuance is self-executing and brings an application to an end."
- Plain English: When an applicant withdraws their claim properly, the claim ends automatically; the Commission does not have to do anything further to terminate it.
Para 38: "The general power of the Commission to correct and amend applications (section 586 FW Act) does not constitute a power to set aside a discontinuance..."
- Plain English: Even though the Commission can generally correct or change how applications are set out, that power does not let it undo a voluntary withdrawal of a case.
Para 48: "The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant."
- Plain English: To get an extension to file late, an applicant must show something unusual and convincing; it is hard to meet this requirement.
Para 95: "It is not unusual that a dismissed employee is downcast ... What is unusual is that an unfair dismissal application is voluntarily withdrawn only for a fresh application to be filed months later, on similar grounds."
- Plain English: Courts understand being upset after dismissal, but it is uncommon and problematic for someone to withdraw a case and then refile the same case months later without new, compelling reasons.

What fact patterns trigger this precedent

This decision is directly engaged where:

An applicant files a timely unfair dismissal application, then later voluntarily discontinues it, and subsequently seeks to re-open the discontinued matter or to file a fresh application outside the 21-day period (paras 21-26, 31-35).
The later application alleges intervening ill-health or the acquisition of information after the statutory period which the applicant says justifies an extension (paras 63-71).
Employers assert that recruitment or expenditure decisions occurred after the dismissal and therefore do not contradict the employer's stated reason at the time (paras 89-90).

Key triggers:

Voluntary discontinuance (self-executing) without allegation of mistake or duress (paras 21, 34, 36).
Significant delay (here 132 days) and limited explanatory evidence that links illness or new information to the full period of delay (paras 43-66, 72-75).
An applicant asserting only corroborating particulars rather than genuinely new facts that relate to the employer's state of mind at the time of dismissal (paras 72-75, 88-91).

How later courts have treated it

This judgment itself relies on earlier Full Bench and Commission decisions rather than later decisions (it cites Narayan, AB v Tabcorp, Nulty, Tamu, Buksh, and others) (paras 36-41, 49-51). Within the decision, Deputy President Anderson applies the established principles from those authorities: the self-executing nature of discontinuances, the likely need for court relief where mistake or duress is alleged, and the high threshold for 'exceptional circumstances' under s 394(3) (paras 36-38, 48-51). The decision therefore aligns with and reinforces the approach taken in those earlier authorities rather than creating a contrary line. Readers should note the decision's reliance on and explicit following of Nulty and related Full Bench guidance when considering how similar factual matrices will be treated by the Commission (paras 49-51).

Because the decision is an application of existing principles rather than a novel departure, subsequent tribunals and courts addressing materially similar procedural situations will find it a supportive authority for two propositions: (a) do not expect the Commission to set aside a voluntary discontinuance, and (b) expect a strict application of the exceptional-circumstances test to long delays, particularly where a timely application was earlier discontinued (paras 35-38, 94-100).

Still-open questions

Remedy forum where discontinuance alleged to be procured by mistake or duress: The decision notes the possibility that an otherwise void discontinuance might be actionable in a court, but does not decide the contours of such relief. The proper procedural route and applicable remedies remain matters for courts, and the Commission's comment leaves open precise standards and available relief in court proceedings (paras 36-37).
Degree of particularity required to convert post-lodgement information into 'exceptional circumstances': The judgment draws a distinction between newly discovered facts that materially alter the posture of the case and particulars that merely corroborate an earlier belief (paras 72-75, 88-91). What level of factual novelty or materiality would be sufficient in other contexts remains fact-dependent, and the decision does not formulate a bright-line rule.
Interaction between medical incapacity and s 394(3): The decision shows that a period of hospitalisation may contribute to an explanation for delay but is not dispositive unless it credibly covers the delay and explains why the applicant could not act earlier (paras 63-66). How much medical evidence, and of what form, will be sufficient in borderline cases is still open for future application.
Commission's remedial competence in borderline cases involving procedural irregularity: The judgment rejects using ss 586/589/603 to undo a discontinuance; future cases raising complex procedural irregularities or administrative error might test the boundaries between what relief the Commission can give and what must be sought in a court (paras 33, 38-41).

Practical takeaways for practitioners:

Treat discontinuance as final for Commission purposes; do not expect the Commission to revive the matter absent court intervention based on mistake or duress (paras 35-38, 41).
If a client has health issues or learns new facts after the lodgement period, prepare contemporaneous evidence linking incapacity or genuinely new facts to the delay and act promptly once new facts are known (paras 63-71, 72-75).
Voluntary withdrawal of a timely claim risks precluding the same claim later; lawyers should advise clients carefully before discontinuing proceedings where legal rights are significant (paras 56-62, 95-99).

Judgment (157 paragraphs)

[1]

George Benzier v Schools Ministry Group Incorporated [2020] FWC 5373 (9 October 2020)

[2]

[2020] FWC 5373

[3]

Fair Work Act 2009

[4]

Section 394 - Application for an unfair dismissal remedy

[5]

Application for an unfair dismissal remedy - application to set aside notice of discontinuance - section 586 is a power to correct or amend an application, not a power to revoke or set aside a discontinuance - application dismissed

[6]

Application for an unfair dismissal remedy - second application - extension of time - no exceptional circumstances - application dismissed

[7]

[1] This decision concerns two applications to the Commission made on 17 September 2020 by Mr George Benzier (Mr Benzier or the Applicant) concerning his dismissal by Schools Ministry Group Incorporated (SMG, the Respondent or the employer) on 16 April 2020:

[8]

firstly, Mr Benzier seeks to have unfair dismissal matter U2020/5667 re-opened and a discontinuance which he notified on 5 June 2020 set aside; and

[9]

secondly, and in the alternative, Mr Benzier seeks to have an extension of time granted to pursue a subsequently filed unfair dismissal application U2020/12516 concerning the same dismissal.

[10]

[3] On 18 September 2020 I issued directions requiring the filing of materials. Mr Benzier filed a witness statement[1] and related materials[2] on 24 September 2020. SMG lodged a Form F3 employer response and attachments[3] on 1 October 2020.

[11]

[4] I heard the matter by telephone on 7 October 2020. Mr Benzier appeared in his own right. Mr Michael Chant, CEO of SMG appeared for the Respondent assisted by a Board member Mr Earl. Both Mr Benzier and Mr Chant gave sworn evidence and made submissions. No other witnesses were called.

[12]

[5] During proceedings I made a confidentiality order concerning Mr Benzier's evidence of his health circumstances and medical treatment. That order continues to apply.

[13]

[6] This decision determines both the application to set aside Mr Benzier's discontinuance and the extension of time request on his fresh application.

[14]

[7] Facts relating to proceedings in the Commission are not in issue.

[15]

[8] Facts relating to the date the dismissal took effect are not in issue.

[16]

[9] Some facts relating to the merits of the dismissal are clearly in issue. However, for reasons that follow, I do not need to make findings as to disputed facts concerning merits or the preliminary issue raised by the employer that the dismissal was a case of genuine redundancy.

[17]

[11] SMG is an association connected to churches and schools of Christian faith which is contracted to deliver the National School Chaplaincy Program. The Chaplaincy Program is funded by the Australian Government to provide chaplaincy and chaplaincy support services in schools and school communities primarily through the employment of Pastoral Care Workers (formerly known as school chaplains).

[18]

[12] Mr Benzier worked for SMG for a period of nine months (29 July 2019 to 17 April 2020) in the full-time position of General Manager of People and Culture. As a General Manager, his employment was not covered by an award or agreement. A formal written contract governed his employment.[4]

[19]

[13] In April 2020, the advent of COVID-19 including its impact on schools, saw SMG make decisions to restructure its organisation.

[20]

[14] On 16 April 2020 Mr Chant advised Mr Benzier that due to "financial difficulties" his position would no longer exist and that his employment would terminate. In a subsequent discussion between Mr Chant and Mr Benzier the intended termination date of 29 May 2020 was brought forward by agreement to 17 April 2020. Consistent with the terms of his contract, Mr Benzier was paid six weeks in lieu of notice. He was not paid redundancy pay as he had been employed for less than a year. These arrangements were confirmed in correspondence of 16 and 21 April 2020.[5]

[21]

[15] Though not relevant for current purposes, Mr Benzier was told by Mr Chant that he was not redundant, simply terminated.

[22]

[16] Mr Benzier considered his dismissal unfair.

[23]

[17] One week later, on 25 April 2020 Mr Benzier filed an unfair dismissal application in the Commission under section 394 of the Fair Work Act 2009 (FW Act) seeking a remedy of reinstatement or 12 month's salary in lieu (U2020/5667, the first application).

[24]

[18] SMG objected to Mr Benzier's application on the ground that his termination was a genuine redundancy and not otherwise unfair.[6]

[25]

[19] The first application proceeded to conciliation on 25 May 2020. It did not resolve.

[26]

[20] On 1 June 2020 I conducted a directions hearing and listed the first application for hearing on 16 and 17 July 2020. A member assisted conciliation was scheduled for 17 June 2020.

[27]

[21] On 5 June 2020 Mr Benzier emailed my Chambers as follows:

[28]

"In the name of the Lord. I withdraw my case and good bless (sic)."

[29]

[22] On 5 June 2020 I caused the following response to be emailed to both sides in reply:[7]

[30]

"The below discontinuance has been received by email, thank you. The hearing listed for 16 and 17 July will be cancelled and the Deputy President's directions vacated.

[31]

I have copied Commissioner Hampton's Associate so that the Member Assisted Conciliation listed for 17 June may also be cancelled."

[32]

[23] On 17 September 2020 Mr Benzier emailed my Chambers and the Commission registry inboxes:

[33]

"1. Form F2 - With an appeal to reopen my matter of U2020

[34]

[24] Mr Benzier's application (F2) filed on 17 September 2020 is dated 16 September 2020. It was also made under section 394 of the FW Act (U2020/12516, the second application). It concerns the same dismissal. It seeks a similar remedy of reinstatement or compensation, expressed as six months compensation (plus payment of medical expenses).

[35]

[25] In his second application Mr Benzier seeks both an extension of time for the second application and reopening of his first application.[8] Though Mr Benzier's re-opening application is not made in a separate prescribed form, I grant leave under the Fair Work Commission Rules 2013 (FW Rules) for that portion of his second application to be treated as an application to re-open and set aside his discontinuance. The second F2 application includes grounds in support of each of these requests.

[36]

[26] On 17 September 2020 my Chambers emailed Mr Benzier to confirm his intentions. Mr Benzier stated in reply:[9]

[37]

"I write to you and state that I wish to seek and ask to set aside my request for discontinuation of my matter number U2020/5667."

[38]

[27] I then listed the matters for a concurrent hearing; the request to set aside the discontinuance in U2020/5667 and the request for an extension of time in U2020/12516.

[39]

[28] The grounds on which Mr Benzier seeks to set aside his discontinuance of 5 June 2020 are the same as the grounds on which he seeks an extension of time.

[40]

[29] Mr Benzier advances two primary grounds:[10]

[41]

that since 5 June 2020 he has become aware of SMG hiring new employees and making capital expenditures which he considers render disingenuous the reason for his dismissal ("financial difficulties"). More specifically, Mr Benzier believes that a Human Resources Manager and a Recruitment Manager have been recruited since his dismissal, which positions he says encompass his former role; and

[42]

that since 5 June 2020 Mr Benzier has suffered mental and physical health impairments which impacted his capacity and readiness to prosecute his dismissal.

[43]

that Mr Benzier had fair and reasonable access to the Commission's processes with an initial application which was within the necessary time frame and included participation in a mediation process. He voluntarily discontinued;

[44]

Mr Benzier offers no additional or further information or details regarding the events that led to the dismissal, and no exceptional circumstances as to why he should be offered an extension; and

[45]

Mr Benzier's dismissal was a case of genuine redundancy based on the facts as then known and decisions as then made by SMG concerning COVID-19 and its actual and potential impacts on the business. Expenditures including recruitment of personnel relied upon by Mr Benzier's occurred months after his dismissal when impacts of COVID-19 were revised in light of restrictions easing, the pandemic being contained more quickly in South Australia than forecast, school attendance numbers not dropping as far as forecast and revenues not declining as severely as SMG had expected.

[46]

First application - setting aside notice of discontinuance

[47]

[31] Re-opening Mr Benzier's first application would require the discontinuance he notified on 5 June 2020 to be set aside.

[48]

[32] Only if the Commission has power to do so would it be appropriate to consider whether, in the exercise of discretion, it should do so.

[49]

[33] Mr Benzier's email to the Commission of 5 June 2020 was a discontinuance within the meaning of section 588 of the FW Act. Whilst the FW Rules express preference for an applicant to withdraw proceedings by filing a discontinuance in the approved form, rule 10(2)(b) contemplates a discontinuance being communicated by email. The employer was notified of Mr Benzier's email and the Commission file was administratively closed.

[50]

[34] Mr Benzier does not submit that his email of 5 June 2020 was anything but a discontinuance.

[51]

[35] Once filed, a Notice of Discontinuance is self-executing and brings an application to an end.[12]

[52]

[36] Further, in Narayan a Full Bench observed that "[f]or completeness we note that the Commission may have power to deal with such an application if the notice of discontinuance was filed by mistake or under duress. In such circumstances, the general law may operate to render the notice a nullity."[13]

[53]

[37] In AB v Tabcorp Holdings Limited, the Full Bench went on to say:

[54]

"that in certain circumstances a notice of discontinuance can, in effect, be set aside if it was filed by mistake or under duress" but doubted "that such a power may be exercised by the Commission. It seems to us that any such application would have to be made to a court - for a declaration that the notice was a nullity. As an arbitral body the Commission cannot grant declaratory relief."[14]

[55]

[38] I agree and apply this principle. The general power of the Commission to correct and amend applications (section 586 FW Act) does not constitute a power to set aside a discontinuance (even where made by mistake). Further, the general power of the Commission to make procedural decisions (section 589) does not extend to proceedings that are discontinued. Nor can the Commission's general power to vary or revoke decisions (section 603) be used to set aside a discontinuance, as no decision of the Commission concerning the discontinuance has been made. As noted, a discontinuance is self-executing.

[56]

[39] Accordingly, the Commission is not empowered to make the declaratory order sought. In the absence of power to make the order sought, there is no utility in further considering discretionary matters that may arise.

[57]

[40] For the sake of completeness, I note that Mr Benzier's application refers to a desire to "appeal" to reopen his first application. Having sought clarification from Mr Benzier on 17 September 2020,[15] the Commission did not receive a Notice of Appeal (F7). In any event, the Commission as currently constituted is not competent to hear an appeal.

[58]

[41] Further, it is well established by a Full Bench that, not being a decision of the Commission, a notice of discontinuance is not an appealable decision.[16] In Buksh, the Full Bench reiterated that "the proper course for (the Applicant)... (is) to make an application to a court to have the... discontinuance set aside."[17]

[59]

[42] For these reasons, Mr Benzier's application to set aside his discontinuance of 5 June 2020 is dismissed.

[60]

[43] Mr Benzier lodged his second application on 17 September 2020 in relation to a dismissal that was effective from 17 April 2020. The 21-day statutory timeframe for lodging an unfair dismissal application expired on 8 May 2020. Mr Benzier's application is one hundred and thirty-two (132) days out of time.

[61]

[44] Should an extension of time should be granted for Mr Benzier's second application?

[62]

(a) within 21 days after the dismissal took effect; or

[63]

(b) within such further period as the FWC allows under subsection (3).

[64]

(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:

[65]

(b) whether the person first became aware of the dismissal after it had taken effect; and

[66]

[67]

(d) prejudice to the employer (including prejudice caused by the delay); and

[68]

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

[69]

[46] Mr Benzier's application can only proceed if he can establish that "exceptional circumstances" exist within the meaning of section 394(3).

[70]

[47] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[18]

[71]

[48] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[19] A decision whether to extend time under section 394(3) involves the exercise of a discretion.[20]

[72]

[49] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:

[73]

"[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."[21]

[74]

[50] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.[22]

[75]

[51] I now consider each of the factors set out in section 394(3).

[76]

[52] The reason for the delay in lodging an application is a factor that must be considered. The absence of an 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 an applicant's favour, though it is ultimately a question of degree and insight.[23]

[77]

[53] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[24]

[78]

[54] The period of the delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.[25]

[79]

[55] The 132 day period of delay can be divided into two distinct periods: a period of 28 days from twenty-one days after dismissal (8 May) to the discontinuance of the first application (5 June); and a period of 104 days from the discontinuance of the first application (5 June) to the filing of the second application (17 September).

[80]

[56] The reason for the delay in the first period is that Mr Benzier had an application concerning the same dismissal on foot in the Commission (the first application). The first application was discontinued by Mr Benzier. In considering whether this first period of delay has a reasonable explanation it is necessary to consider why Mr Benzier discontinued those proceedings on 5 June 2020.

[81]

[57] Mr Benzier does not submit that he discontinued by mistake or under duress. Mr Benzier's evidence was:[26]

[82]

"I considered my options and sincerely felt that Mr Chant was true to his words, and that I did not want to burden School Ministry Group organisation of the financial hardship...and did not want any other employees to displace their employment because of my legal application. I choose to sacrifice for peace, my mental health and believed in God that Mr Chant would do the right thing..."

[83]

[58] Mr Benzier had a live application before the Commission that was within jurisdiction and which had progressed beyond initial conciliation, had hearing dates set for arbitration and had directions issued. A response had been filed by his former employer and all issues, including merits and the employer's claim of genuine redundancy, were to be determined in the one hearing in six weeks' time if not settled beforehand.

[84]

[59] For a number of reasons related to both his circumstances and those he considered relevant to SMG, Mr Benzier made a considered decision to discontinue the first application.

[85]

[60] The first application dealt with exactly the same dismissal, invoked the identical cause of action, sought a similar remedy and the same issue of genuine redundancy was raised by the employer.

[86]

[61] Nor can it be said that any of the post-5 June factors (considered below) place a different complexion on the discontinuance. To the extent Mr Benzier says he fell ill after the dismissal, it was after the discontinuance that he was hospitalised, not before. In this first period he was unhappy at having been dismissed and feeling depressed but there was no incapacity to prosecute his application.

[87]

[62] As the discontinuance was a considered and voluntary decision, the explanation for the first period of delay weighs against an extension of time.

[88]

[63] Mr Benzier advances two grounds for the second period of delay: that he fell ill; and that he acquired knowledge about SMG's expenditure and recruitment which caused him to doubt the genuineness of his dismissal.

[89]

[64] On the evidence before me I am satisfied that Mr Benzier has been unwell in this period and required a week of hospitalisation from 1 July 2020 to 8 July 2020. Irrespective of the precise diagnosis on admission or discharge, Mr Benzier was and, it appears, remains unwell. His medical certificate on discharge[27] indicates that he is unfit to work for a full three months on account of a "medical condition" - from 1 July 2020 until 1 October 2020. While it may be possible that his unwellness is related to his dismissal (as he suggests) or other personal or pre-existing circumstances (as the employer suggests) it matters not; he was hospitalised for a week and remains unable to work.

[90]

[65] However, this does not adequately explain the 104-day delay in this second period:

[91]

firstly, Mr Benzier was hospitalised for only 7 days of this 104-day period;

[92]

secondly, a period of delay of more than one month existed before Mr Benzier was hospitalised. There is no medical certification before me that he was unwell between 5 June 2020 and his hospitalisation on 1 July 2020;

[93]

thirdly, during this second period of delay (on about 15 June 2020) and after an earlier telephone discussion with Mr Benzier, SMG offered Mr Benzier access to private counselling if he required assistance to deal with his circumstances. There is no evidence that Mr Benzier took up the offer to assist his mental health; and

[94]

fourthly, Mr Benzier's physical or mental health did not preclude him from filing his second application on 17 September 2020. That date is inside the period of his medically certified unfitness. There is no evidence that indicates that Mr Benzier was more or less healthy or unhealthy on 17 September 2020 than any other time prior to his hospitalisation or in the more than two months that followed his discharge and before filing his second application.

[95]

[66] I now turn to the second ground for the explanation of the delay: acquired knowledge about expenditure and recruitment which caused Mr Benzier to doubt the genuineness of his dismissal.

[96]

[67] There is no doubt that his was the trigger for the second application being filed.

[97]

[68] I accept Mr Benzier's evidence that he acquired this knowledge on 15 September 2020, that he completed and dated his application the next day (16 September 2020) and filed it on 17 September 2020.

[98]

[69] Mr Benzier declined in his evidence to reveal how he acquired the knowledge other than to indicate in general terms that it was from a person associated with SMG.

[99]

[70] I have no doubt that Mr Benzier formed a view, especially upon being told that a Human Resources Manager had been recruited in August and September 2020 and that a Recruitment Manager had also been employed, that his former job was no longer being absorbed into Mr Chant's role (as he had been told at the time of dismissal) but was being performed by others. I have no doubt that at the time of filing his second application Mr Benzier genuinely doubted the genuineness of his dismissal.

[100]

[71] I take into account that Mr Benzier did not delay once he acquired information on 15 September 2020. An application was drafted the next day and filed the day after that.

[101]

[72] However, whilst this explains why the second application was filed, his explanation does not constitute a reasonable explanation for the delay.

[102]

[73] When he filed his first application Mr Benzier held a similar view that his dismissal was not genuinely based on the "financial difficulties" that had been asserted by Mr Chant. In his first application Mr Benzier claimed:[28]

[103]

"the organisation has received additional funding from the Department of Education. Thus I cannot see any reason to terminate my service."

[104]

[74] At its highest, the new information Mr Benzier acquired on 15 September 2020 was additional particulars to support an already held belief, not a basis for forming a new belief not previously held.

[105]

[75] I am not satisfied that either explanation for the second period of delay is an acceptable reason for the delay.

[106]

[76] Considered overall, the reasons for delay weigh against granting an extension of time.

[107]

Awareness of the dismissal taking effect (section 394(3)(b))

[108]

[77] Mr Benzier was aware as a result of both his discussion with Mr Chant on the morning of 16 April 2020 and receipt later that day of a letter of a dismissal that his employment was to cease. He was also aware, following a subsequent discussion with Mr Chant, that the date his dismissal was to take effect was brought forward to 17 April 2020.

[109]

[78] These dates being inside the 21-day period, together with the fact that the first application was filed inside this period, weigh against an extension of time.

[110]

Action taken to dispute dismissal (section 394(3)(c))

[111]

[79] Mr Benzier disputed his dismissal in a formal way within the 21-day period by filing his first application a week after being dismissed. From that time at least, SMG were on clear notice that Mr Benzier was discontented with his dismissal and was questioning its genuineness.

[112]

[80] This somewhat weighs in favour of an extension of time.

[113]

[81] However, Mr Benzier then voluntarily chose to discontinue this action. Upon the discontinuance, SMG were entitled to the view that Mr Benzier had reconsidered (for whatever reason) and that he was no longer taking action to dispute the dismissal.

[114]

[82] In these circumstances, both the action to initially dispute the dismissal and its discontinuance have a neutralising effect. This is a neutral factor.

[115]

[83] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances.

[116]

[84] There is no prejudice advanced by SMG beyond the cost and disruption of defending proceedings. To a limited extent some of these costs may be duplicate given that the first application proceeded to conciliation and beyond, and the second application would require further conciliation and a directions hearing if an extension is granted. This is not however a significant factor given that SMG's response relates to issues common to both applications.

[117]

[85] Nonetheless, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension.[29]

[118]

[86] In the circumstances, this is a neutral factor.

[119]

[87] A hearing on merit will necessarily consider SMG's objection that Mr Benzier's termination was a genuine redundancy and Mr Benzier's counter that it was not genuine and that an ulterior reason for dismissal existed.

[120]

[88] Past decisions of the Commission have accepted that material facts known by a redundant employee only after the statutory time limit has expired may constitute exceptional circumstances warranting an extension of time.[30] However, each of these decisions are decided on their own facts, and other decisions have reached a different conclusion.[31]

[121]

[89] In filing his second application Mr Benzier assumed that the information he acquired on 15 September 2020 about SMG recruitment and expenditure since his dismissal related to circumstances applicable at the time the decision was made to dismiss (April 2020). Mr Chant's evidence was to the contrary; he claims that SMG's expenditure and recruitment decisions referred to by Mr Benzier were made after April 2020 and only once the impact of COVID-19 on the business had been re-assessed in light of experience.

[122]

[90] If SMG were able to make out its position that the relevant recruitments were based on a materially different set of facts or that the newly recruited positions were materially different then Mr Benzier's application may not succeed. Conversely, if the financial difficulties said to have underpinned SMG's decision to dismiss are unable to objectively establish a genuine redundancy within the meaning of section 389 of the FW Act, the employer's preliminary objection will fail.

[123]

[91] This claim and counter-claim have not been fully tested. This is a neutral consideration.

[124]

Fairness between persons in similar position (section 394(f))

[125]

[92] No evidence or submissions from Mr Benzier or SMG raise issues of fairness with and between other persons.

[126]

[93] In these circumstances, this is not a relevant factor.

[127]

[94] Mr Benzier's application was filed 132 days out of time. In the context of a 21-day statutory timeframe, this represents a very significant delay.

[128]

[95] No factors individually or collectively weigh in favour of a conclusion that exceptional circumstances exist. The reasons for the delay are not exceptional. It is not unusual that a dismissed employee is downcast and that dismissal affects their mental and physical well-being. It is not unusual that a dismissed employee soon after dismissal forms a view that their dismissal is unfair. Nor is it unusual that an employee litigates their dismissal in the unfair dismissal jurisdiction. What is unusual is that an unfair dismissal application is voluntarily withdrawn only for a fresh application to be filed months later, on similar grounds.

[129]

[96] There is no evidence that SMG contributed to the delay, misled Mr Benzier about his rights or interfered with the decisions he made or the views he formed over this 132 day period.

[130]

[97] To grant an extension of time in these circumstances would be to inappropriately apply the discretionary considerations in section 394(3) of the FW Act. It would also be at odds with the well-established principles of finality in litigation and that a party should not be vexed with defending the same proceeding twice.[32]

[131]

[98] Whilst Mr Benzier acted promptly once he acquired information of new recruitment and expenditures by SMG he was already 129 days out of time and had already filed and then discontinued a near identical claim albeit with fewer particulars.

[132]

[99] Considering the length of the delay and other relevant factors (including the "high hurdle" set by the statutory provision) I do not consider that exceptional circumstances exist.

[133]

[100] There being no exceptional circumstances the time for lodging the claim cannot be extended.

[134]

[101] As Mr Benzier's application is out of time and as the time for lodgement has not been extended, I am unable to proceed with the employer's preliminary objection or conduct a merits hearing. The application is dismissed.

[135]

[102] An order[33] to that effect is issued in conjunction with the publication of this decision.

[136]

The seal of the Fair Work Commission signed by Deputy President Anderson

[137]

Mr M Chant with Mr B Earl, for Schools Ministry Group Incorporated

[138]

[3] R1 and Attachment A, Attachment B and Attachment C

[139]

[7] Email Chambers to Mr Benzier and SMG 5 June 2020 2.25pm

[140]

[12] Chandra Gupta Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 at [6] ('Narayan')

[141]

[14] AB v Tabcorp Holdings Limited. [2015] FWCGB 523 at [11]

[142]

[15] Email Chambers to Mr Benzier 17 September 2020 "If you wish to lodge an appeal with respect to matter U2020/5667 you will need to complete a form F7 (Rules 52 and 56 of the Fair Work Commission Rules 2013). There are time limits for lodging an appeal (21 days from the date of any alleged decision). Extensions of time, if required, have to be applied for in the Notice of Appeal and are matters for decision by the relevant appeal bench."

[143]

[16] Ben Buksh v Ramsay Health Care t/a Peninsula Private Hospital ('Buksh'), [2020] FWCFB 4352 at [19]

[144]

[18] Smith v Canning Division of General Practice [2009] AIRC 959

[145]

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

[146]

[20] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

[147]

[21] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]

[148]

[22] [2019] FWCFB 2384 at [16] - [20]

[149]

[23] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288, at [35]-[45]

[150]

[24] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288

[151]

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

[152]

[29] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

[153]

[30] John Byrnes v Rexel Electrical Supplies Pty Ltd [2015] FWC 5776; McMechan v National Roads and Motorists' Association [2016] FWC 5826; Williams v The Building Connection Group Pty Ltd [2017] FWC 30

[154]

[31] Anderson v Spirit WA Pty Ltd t/as Professionals Rockingham [2020] FWC 4199; Humble v Jupps Carpets and Ceramics Pty Ltd [2020] FWC 4378

[155]

[32] "there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse..." Johnson v Gore Wood & Co [2000] UKHL 65; All ER 498-9, as quoted in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [34]

[156]

[33] PR723394

[157]

Printed by authority of the Commonwealth Government Printer

George Benzier v Schools Ministry Group Incorporated [2020] FWC 5373

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