Fair Work Act 2009

s.394 - Unfair dismissal

Application for extension of time to file unfair dismissal application - application refused.

[1] Ms Jelena Jandrek has applied for a remedy for unfair dismissal from Tactical Training Group Pty Ltd (Tactical Training). The dismissal took effect on 31 January 2022 and the application was made on 22 February 2022. In other words, the application was made one day after the end of the statutory 21‑day filing period for applications of this kind.[1]

[2] Tactical Training objects to the application, including because it was lodged out of time.

[3] I have decided not to allow additional time for Ms Jandrek to make her application to the Commission. This means that the application was not made in accordance with the Fair Work Act 2009 (Cth) and will be dismissed. These are my reasons for refusing additional time.

Should additional time for making the application be allowed?

[4] Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) provides 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. A further period can only be allowed if the Commission is satisfied that there are exceptional circumstances, taking into account certain matters.

[5] The meaning of "exceptional circumstances" was considered and summarised in Nulty v Blue Star Group[2]:

"[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."[3] [Emphasis added]

[6] Section 394(3) of the Act sets out the matters that must be taken into account in relation to whether there are exceptional circumstances. These are:

• the reason for the delay;
• whether the person first became aware of the dismissal after it had taken effect;
• any action taken by the person to dispute the dismissal;
• prejudice to the employer (including prejudice caused by the delay);
• the merits of the application; and
• fairness as between the person and other persons in a similar position.

[7] The explanation given for the delay is that Ms Jandrek was overwhelmed after being dismissed on 31 January 2022 and was not really functioning, while trying to work out what to do. She spoke with her counsellor on 3 February 2022. On 4 February 2022, Ms Jandrek contacted Centrelink to make an appointment and was told she needed an Employment Separation Certificate. Ms Jandrek received her letter of termination on or about 8 February 2022. She then requested, and was sent, an Employment Separation Certificate on 11 February 2022. Ms Jandrek says the reason for termination stated in those documents was different to the reason she had been given in person on 31 January 2022. After receiving the documents, Ms Jandrek began contemplating an unfair dismissal claim.

[8] Ms Jandrek explained that she is a single mother of three children aged 7, 10 and 13. On 12 February 2022, her eldest child became unwell and so then did she. On 14 February 2022, Ms Jandrek and her daughter were tested for COVID-19. They each received a positive test result on 15 February 2022 and were required to isolate from 14 - 20 February 2022. Ms Jandrek was very unwell for about 5 days, although she was symptomatic for approximately 2 weeks. Ms Jandrek's other two children subsequently acquired the infection and a further period of isolation began.

[9] Ms Jandrek began filling in her application to the Commission at some point between 11 and 21 February 2022. On one occasion she tried to submit it, but her internet was not working properly and she was too tired to fix it. She mistakenly thought the application would be in time if lodged on 22 February 2022, which is when the application was made.

[10] In short, from 1 to 11 February 2022, Ms Jandrek was dealing with the emotional consequences of dismissal and taking understandable but ordinary steps to secure her emotional and financial wellbeing. Between approximately 12 and 17 February 2022, Ms Jandrek was very unwell. Both during and after that time, she was caring for her children who also had COVID-19.

[11] Being a single parent is not easy. But I do not consider it an exceptional circumstance. It is now also relatively common for a person or their family to be diagnosed with COVID-19 and required to isolate for a period. The reasons given for dismissal were both performance and breach of company policy. This was discussed with Ms Jandrek on 31 January 2022 and spelt out in the letter of termination sent to her that same day. Ms Jandrek did not receive the letter until on or about 8 February 2022, but this was not because of any failure on the part of Tactical Training. The delay was the result of Ms Jandrek changing her use of emails and not informing Tactical Training of the change.

[12] The concerns about Ms Jandrek's performance had been raised with Ms Jandrek in late 2021. That is not to say the concerns were valid, as no assessment of the merits has yet been made. But receipt of the Employment Separation Certificate was not, or should not have been, the first time Ms Jandrek had been made aware that performance was a reason for her dismissal. This had been set out in her letter of termination and discussed earlier with her. Separately, the alleged breach of policy only arose in the week of dismissal. It was relied upon (rightly or wrongly) as serious misconduct and another reason for dismissal. In this respect, the Employment Separation Certificate was only partially correct because it stated that performance was the reason for dismissal (and not misconduct).

[13] When the circumstances are considered in totality, I find that for the duration of the 21‑day period after dismissal from 1 to 21 February 2022, Ms Jandrek had access to her phone and computer, and the ability to engage with Centrelink and others. It was a difficult time for Ms Jandrek, but in my view the application could have been made in time. The surrounding circumstances are relevant to the delay in filing the application but they are not the reason for it. The reason for delay, in Ms Jandrek's words, was that she "just got the due date wrong".

Whether the person first became aware of the dismissal after it had taken effect

[14] Ms Jandrek was notified of the decision to terminate her employment with immediate effect in person, during a meeting with Tactical Training on 31 January 2022.

Any action taken by the person to dispute the dismissal

[15] Other than beginning to fill in the application form, Ms Jandrek did not take any steps to dispute the dismissal until she made the application to the Commission.

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

[16] The application is only one day late. There is no more prejudice to Tactical Training if the matter were to progress than if Ms Jandrek had made her application in time.

[17] It cannot be said that Ms Jandrek's application is without merit. The application raises issues about Ms Jandrek's performance and whether the requirements of her role, and Tactical Training's assessment of that performance, were reasonable in the circumstances. There are also issues of valid reason and proportionality in relation to the alleged breaches of company policy. Those matters can only properly be assessed at a full hearing of the case.

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

[18] There is no apparent issue of fairness as between Ms Jandrek and other employees of Tactical Training.

[19] On balance, I am not satisfied that there are exceptional circumstances such that an extension of time can be allowed in this case. Neither the reason for delay nor the context in which it occurred persuade me that this threshold is met, whether considered in isolation or together. Ms Jandrek knew about her dismissal on the day it took effect. Though the application could have been made in time, Ms Jandrek did not take active steps to dispute the dismissal until her application was made - by which time the deadline had passed. I find no prejudice to Tactical Training if additional time is granted. The merits are a neutral consideration because they cannot be fairly assessed at this early stage and there is no issue of fairness between Ms Jandrek and others in a similar position that arises on the face of the record.

[20] As I am not satisfied that there are exceptional circumstances, I cannot allow an extension of time.

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

[2] [2011] FWAFB 975; [2011] 203 IR 1.

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