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 Heather Leggett (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of her employment with TGI Cargo Pty Ltd (the Respondent).

• [2] On the Form F2, the Applicant states she started her employment with the Respondent sometime in July 2021 and resigned from her employment on 3 July 2023.

• [3] The Applicant lodged her application on 14 August 2023. The application was lodged 21 days outside the statutory time limit prescribed by s.394(2) of the Act.

• [4] The question before me is therefore whether the Applicant should be granted an extension of time to lodge her application pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.

• [5] Directions were issued and material was filed by each party. A hearing was held before me on 24 August 2023.

• [6] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to 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."

• [7] 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."

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

• [9] For the Applicant's application to proceed, I must be satisfied that there are "exceptional circumstances" for the Applicant to obtain an extension of time under s.394(3) of the Act.

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

• [10] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however it must be 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]

• [11] 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]

• [12] The Applicant stated the following for the reasons for delay:

"I believed resigning and leaving my employment would cease the intimidation and bullying I had been subjected to by senior management at TGI Cargo. However, TGI management reignited and continued their intimidating behaviours a fortnight after me leaving the company. Due to an attempt to resolve the issue by email and not knowing fair work was an option, this was unable to be lodged within the standard 21 days. See timeline of events below.

On 14th July, two weeks following my resignation, the bullying behaviour was reignited by an email sent by Peter Townley within the freight industry announcing my immediately effective departure from that time. The wording of this email portrayed a negative image of me, resulting in a number of people within the freight industry contacting me believing I had been dismissed from TGI which is not the case. The wording and tone of this email has affected my employability.

On 19th July, I emailed Peter Townley and Selina Donnelly asking them to rectify the negative image that had been portrayed of me within the industry I had been a part of for over 20 years.

On 20th July, I received an email from TGI's engaged Solicitors, Mills Oakley, denying that they had sent any such email and seeking more information from myself.

On 1st August, I sent a follow up email seeking a response. I received nil responses from either email sent to the engaged solicitor, Mills Oakley.

On 7th August after having received nil responses from TGI or their solicitor, I was talking to my friend and representative in this matter, Clint, who explained to me that being in a position where I felt that resigning was the only option to escape the bullying is effectively the same as unfair dismissal.

I contacted Fair Work on 8th August who confirmed lodging an unfair dismissal form was the best course of action, despite the lateness as I had been trying to communicate a resolution to no avail."

• [13] In Giles v Coal Train Australia Pty Ltd, Deputy President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.[7]

• [14] The Applicant stated she did not know about the unfair dismissal process until she spoke with her friend Mr Clint Page who stated to her that she could have a potential unfair dismissal claim on 7 August 2023. In her oral evidence, she stated that she could not file her application straight away as it required her some time to fill out the form until contacting the Fair Work Commission on 8 August 2023. Even if accepting the Applicant's argument, there still was a 4-day delay from when she should have been aware of the 21-day calendar timeframe and that the Application should have been lodged as soon as possible.

• [15] Ignorance of the timeframe is not a sufficient reason for delay.[8] The Applicant did not indicate any disadvantage which would have caused the delay or signs of proactively getting the Application submitted with the Commission once she knew about the unfair dismissal process.

• [16] This consideration does not weigh in favour of granting an extension of time.

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

• [17] The Applicant was aware of his dismissal date and when it had taken effect as she resigned from her employment on 3 July 2023.

• [18] This consideration does not weigh in favour of granting an extension of time.

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

• [19] The Applicant did not dispute the dismissal when communicating with the employer after her resignation on 3 July 2023. Her correspondence with the Respondent following her resignation was an email that was sent after she had resigned. The Applicant was disputing the Respondent's email which portrayed her negatively. This was the primary reason she was still communicating with the Respondent after her resignation.

• [20] This consideration does not weigh in favour of a finding of exceptional circumstances.

• [21] The Respondent did not address that an extension could potentially cause a degree of prejudice. I consider this factor to be neutral.

• [22] In Kornicki v Telstra-Network Technology Group,[9] 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."

• [23] 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.

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

• [24] 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.[10]

• [25] The Fair Work Commission has held that seeking alternative means of resolution, through a formal internal review process or through informal negotiations, is not an acceptable excuse for delay in filing an unfair dismissal application.[11]

• [26] In McBride v JA Krieger Forestry Services [2021] FWC 6284 at [5], Deputy President Colman found that a person being unaware of the requirement to lodge an unfair dismissal application within 21 days of the dismissal is not an acceptable reason for delay.

• [27] This consideration does not weigh in favour of a finding of exceptional circumstances.

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

• [29] I Order that the application be dismissed.

A. Millman on behalf of the Respondent from Mills Oakley Lawyers

[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] Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at 38.

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at 14 (Lawler VP, Sams DP, Williams DP).

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

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

[11] Gao v Department of Human Services [2011] FWAFB 5605; see also McRae v Peerless Products Pty Ltd [2018] FWC 2173; Nichols v Alsco [2019] FWC 1870; Petkoff v BLSSA Pty Ltd [2020] FWC 1778.

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