Fair Work Act 2009

s.394 - Unfair dismissal

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

[1] Mr Grant Knott was employed by MSS Security ("MSS") as a security guard and worked at the Wilfred Lopes Centre in Hobart. He had been at that location for approximately nine years, but had only worked for MSS since August last year after it took over the contract to provide security services at the Centre.

[2] However, Mr Knott resigned from his employment with MSS on 10 August 2017 after being told that the client no longer wanted him at that site. He then lodged an unfair dismissal application on 10 October 2017. This was 40 days after the standard 21 day time period provided for in the Fair Work Act 2009 (Cth) ("the Act") in which to make application.[1] This decision accordingly deals with whether it is appropriate for the Commission to exercise the discretion available to it to grant Mr Knott additional time in which to make application.

[3] The hearing was conducted by telephone. Mr Knott appeared on his own behalf. Ms Lisa Fanti, HR/IR Manager Vic/Tas, appeared on behalf of MSS.

[4] The Act provides at first instance that an unfair dismissal application is to be lodged within 21 days of the date of dismissal. However, s.394(3) continues to provide that the Commission may extend the time for making application if it believes there are "exceptional circumstances" existing to warrant an exercise of this discretion, taking into account each of the following considerations:

(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

(f) fairness as between the person and other persons in a similar position."[2]

[5] As indicated, Mr Knott's unfair dismissal application was filed 40 days after the expiry of the standard 21 day time period. He now seeks additional time in which to make application. The Commission is accordingly required to now determine whether there are "exceptional circumstances" existing, having regard to the considerations in s.394(3), to warrant an exercise of its discretion to grant additional time in which to make application.

[6] On 7 August 2017 Mr Knott was told by his Manager, Mr Peter Jordan, that an employee at the Wilfred Lopes Centre had raised an issue about him acting inappropriately. He was also told that some additional training would be organised as a consequence of what had occurred. Mr Knott denies that he was also told not to discuss the issue with anyone, and he subsequently told other colleagues at work about the complaint. He also attempted to discuss the issue with the employee whom he believed had made the complaint.

[7] On 9 August 2017 he was informed by his Manager, Mr Peter Jordan, that the client had now requested he be removed from the site. Mr Knott was very upset by this and asked that MSS provide support to him in order to assist him to "clear his name".[3] He also emphasised that he had worked at the site for more than nine years without incident. He suggested, for example, that MSS might assist to arrange a process of mediation in an endeavour to resolve the issue. However, he said Mr Jordan told him that nothing could be done, and that work would be found for him at another site.

[8] Mr Knott then made several attempts to make contact again by email with another of the client's employees in the face of what he considered to be inaction by MSS. He was then contacted again by Mr Jordan who told him that he was not to make contact with the client. Mr Knott then states in response that he decided, "In order for me to do this and to sort this matter out I had to resign."[4] He then told Mr Jordan in the discussions with him on 9 August 2017 that he was intending to resign and confirmed this decision in the following email sent to him on the next day, 10 August 2017, under the subject heading, "I have quit":

"I do not wish to be an employee of your company anymore

[9] Mr Knott then makes reference to the following matters to explain the delay in lodging his unfair dismissal application. He states that he "was unusually preoccupied with many things."[6] He was continuing to try and resolve the issues that had arisen at the Wilfred Lopes Centre, including through what he describes as various "legal means."[7] He also states that he had significant caring responsibilities, firstly, in respect of his wife who had been discharged from hospital on 12 July 2017 after significant back surgery. There continued to be ongoing caring responsibilities for her after this time.

[10] He was also assisting in the care of his disabled stepson and this had included raising funds for an eye operation he was required to have on 2 October 2017. He was also out of work as a consequence of his resignation, and was involved in looking for other employment.

[11] He also acknowledges that while "ignorance is no excuse"[8] it is not widely understood that the possibility of pursuing an unfair dismissal application can still be open to an employee in circumstances where they have resigned from their employment. Mr Knott said he only became aware of this possibility around six weeks after he had resigned, after obtaining some pro bono legal advice.

[12] The submissions provided by MSS reject each of the grounds relied upon by Mr Knott in support of him being provided with additional time in which to make application. It submits, firstly, that the fact that he continued to pursue various avenues, after having resigned, to try and resolve the issues that had arisen at the Wilfred Lopes Centre demonstrate that he had both the opportunity and the capacity to lodge an unfair dismissal application within the required timeframe.

[13] It notes, secondly, that his wife's back operation occurred one month prior to his resignation taking place, and he has not provided evidence to support the claims he makes generally about his caring responsibilities. It next makes reference to previous Commission decisions which have indicated that ignorance of the relevant legislative provisions, or being distracted by having to look for new employment, have not been found to be "exceptional circumstances" that would justify additional time being granted in which to make application.

[14] It also submits that Mr Knott made contact with MSS on 19 September 2017 seeking a reference. It submits in response that this, firstly, provides confirmation that he considered he had resigned from his employment and, secondly, again demonstrated that he had the capacity to make an unfair dismissal application, given he was actively pursuing other options.

[15] Its submissions then continue to address the various matters in s.394(3) that the Commission is required to have regard to, while emphasising that the application was lodged 40 days out of time. MSS submits, in conclusion, that the circumstances do not provide justification for the Commission to exercise its discretion to extend time in which to make application.

[16] In considering an application for an extension of time the Commission must have regard to each of the matters in s.394(3) in deciding whether "exceptional circumstances" exist to warrant an exercise of the discretion to extend time. A number of decisions of this Tribunal and its predecessors have previously considered what is required to find that "exceptional circumstances" exist to justify an extension of time. The Full Bench decision in Nulty v Blue Star Group (Nulty)[9] was handed down in the context of a general protections application, however, the principles established in the decision have been held to be of broader application. The relevant extracts from the Full Bench decision in the context of the present application are set out at [13] and [14] in the following terms:

"[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."[10]

[17] The decision accordingly makes clear that "exceptional circumstances" might be found to exist because of a single factor, or a combination of factors. They are also circumstances that are out of the ordinary course, unusual, special or uncommon, however, at the same time they need not be unique, unprecedented, or very rare. However, they are not circumstances that can be said to be regularly, routinely, or normally encountered. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these authorities and the matters in s.394(3) I must have regard to.

[18] Mr Knott lodged his unfair dismissal application almost 6 weeks after the end of the standard 21 day period. This is a significant period of time. However, he makes reference to various matters to explain the reason for the delay in making application. The first concerns his ongoing preoccupation with the circumstances that occurred at the William Lopes Centre that ultimately led him to decide to resign from his employment with MSS. I am not in any position to express a view about those circumstances. However, I do acknowledge that Mr Knott feels deeply aggrieved by what occurred. I also accept that he has been somewhat preoccupied in dealing with this issue, and what he describes as the attempts to "clear his name".

[19] I also acknowledge that he has some significant caring responsibilities associated with his wife and stepson, although I also acknowledge that the Commission was not provided with any specific evidence about what this involves. He was also looking for work elsewhere as a consequence of now being unemployed. He also states that he was initially unaware that he had any ability to bring an unfair dismissal claim, given that he does not dispute that he resigned from his employment at MSS.

[20] The Commission does not take issue with the fact that each of these matters contributed to the delay in Mr Knott making application. His ignorance of the law in this context was perhaps the most significant of these reasons, given that he apparently only became aware, as a consequence of legal advice obtained around 6 weeks after his resignation, that it might still be possible to lodge an unfair dismissal claim despite having resigned. However, it appears that there was then a further period of delay before he actually lodged his application, given that it was finally lodged around nine weeks after the date of his resignation.

[21] It has also been acknowledged that ignorance of the relevant legislative provisions is not necessarily an exceptional circumstance. In addition, many employees are required to deal with a variety of challenging circumstances following, and often as a consequence of them now being out of work. This is not to diminish the significance of what Mr Knott was dealing with. But it does call into question whether the circumstances he relies upon can be considered to be "exceptional circumstances," or whether they are instead not dissimilar to the circumstances that many employees experience after leaving their employment. In addition, while it is clear that Mr Knott was actively pursuing various matters to do with his former employment, this also demonstrates that he had the capacity and capability to lodge an unfair dismissal claim within the required timeframe if he had turned his mind to this possibility.

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

[22] This is not directly relevant in the present matter given that it is clearly acknowledged that Mr Knott resigned from his employment. However, there is obviously no doubt that he was aware that his employment had ended, given that he initiated this outcome.

(c) any action taken by the person to dispute the dismissal

[23] Again, this is not directly relevant, given Mr Knott was not dismissed. However, he has been involved in taking issue with the circumstances that he states led him to resign, and he finally made an unfair dismissal application sometime after becoming aware that this was still an option open to him.

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

[24] There will inevitably be some prejudice to an employer if an Applicant is given additional time in which to make application, given that the employer will then be required to do whatever is necessary to respond to the application. It is also noted that the delay in this case was not insignificant, given that the application was not lodged until almost 6 weeks after the standard 21 day time period had passed.

[25] The relevance of the issue of "merit," when determining an application for an extension of time has been considered in previous Commission decisions, including in the Full Bench decision in Kyvelos v Champion Socks Pty Ltd (Kyvelos) when dealing with similar legislative provisions to those now contained in the Fair Work Act 2009 (Cth). The Full Bench held:

"In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement."[11]

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice."[12]

[27] As indicated, the decision makes clear that it is not necessary for the Commission to come to a concluded view about the respective merits of a matter when dealing with an application of this kind. However, I am satisfied that this consideration is still of significance in all the circumstances of this matter. As indicated, the fact that Mr Knott resigned from his employment is not contested. However, this does not preclude him from pursuing an unfair dismissal application. Section 386 of the Act makes clear that an employee can still be considered to have been dismissed from their employment in circumstances where they have resigned if they were "forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."[13] However, Mr Knott will still face the additional challenge of being required to satisfy the Commission that he was forced to resign, as provided for in s.386, if granted additional time in which to make application. He will be required to do so in circumstances where MSS apparently did not see any need for him to resign or be dismissed, given that it was prepared to place him at another location. I acknowledge that Mr Knott believed in his own mind that he could not continue in his employment, given the nature of the complaint made about him. Nevertheless, he will still be required to satisfy the Commission that he resigned but was forced to do so because of conduct or a course of conduct engaged in by his employer. I am satisfied that given the circumstances involved in this matter this will be a significant challenge, and that this consideration accordingly weighs against Mr Knott been granted additional time in which to make application.

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

[28] This consideration does not seem to be of particular significance, however, the option of bringing an unfair dismissal application is not generally open to a person who has resigned from their employment.

[29] As indicated, in coming to a decision in this matter, I have had regard to each of the matters contained in section 394(3). I have also acknowledged that Mr Knott clearly feels aggrieved about the circumstances that led him to decide he had no option but to resign from his employment. However, previous Commission decisions have also established what is required to find that "exceptional circumstances" exist to warrant an exercise of the discretion to extend time in which to make application, and the need to provide credible reasons for the whole of the period in the delay. This is made more difficult in the present matter, given that the application was lodged almost six weeks after the standard 21 day time period. The decision in Nulty also makes clear that ignorance of the timeframe for lodgement is not necessarily an exceptional circumstance.

[30] It is unfortunate that Mr Knott did not obtain appropriate advice immediately after leaving his employment. This would likely have enabled him to be aware of his available options and the timeframe in which to pursue those options.

[31] I have already referred to the factors that apparently contributed to the application not being made within the standard time period. I am not satisfied in response that they can be said to constitute "exceptional circumstances" that would justify an exercise of the Commission's discretion to extend time in which to make application. The application is accordingly dismissed.

[1] Fair Work Act 2009 (Cth) s 394(2)(a).

[2] Fair Work Act 2009 (Cth) s 394(3).

[3] Applicant's outline of submissions re extension of time, received 13 November 2017 at question 4.

[4] Witness statement of Applicant, received 13 November 2017.

[5] Attachment to Applicant's submissions re jurisdictional objection, email correspondence from Applicant to Respondent dated 10 August 2017, received 13 November 2017.

[6] Applicant's outline of submissions re extension of time, received 13 November 2017 at question 4.

[9] [2011] FWAFB 975.

[10] [2011] FWAFB 975 at [13]- [14].

[11] Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 at [14].

[13] Fair Work Act 2009 (Cth) s 386(1)(b).

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