The attached document replaces the document previously issued with the above code on 23 December 2019.

[2019] FWC 8697

Fair Work Act 2009

s.394 - Unfair dismissal

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

[1] On 7 November 2019, Mr Joel King filed an application (the Application) for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] On 22 November 2019 Elecflight Pty Ltd (the Respondent) filed Form F4 - Objection to unfair dismissal Application response (Form F4). The Respondent objected to the Application on the following bases:

• The application was out of time (ie lodged more than 21 days after the dismissal took effect); and

• The Applicant was not dismissed within the meaning of s.386 of the Act.

[3] While there is a dispute as to whether Mr King resigned from his employment or was dismissed on the basis of redundancy, the parties agree that the termination of Mr King's employment took effect on 9 August 2019.

[4] Therefore, the Application for relief from unfair dismissal made on 7 November 2019 was not made within 21 days after the date the dismissal took effect, as required under s.394(2)(a) of the Act. It was made 69 days late.

[5] This decision only concerns whether I should exercise my discretion to allow Mr King an extension of time for the Application to be made.

Procedural background and preliminary procedural matters

[6] This matter was initially listed for a conciliation conference on 2 December 2019 but this did not proceed because the Respondent requested that its jurisdictional objection be heard first. The Notice of Listing fixing this matter for Jurisdiction (Extension of Time) Conference/Hearing required Mr King's material to be filed and served by noon on 4 December 2019 and the Respondent's material to be filed and served by noon on 11 December 2019. In response, the parties completed, filed and served Outlines of Argument, Statements of Evidence and Document Lists.

[7] At the Jurisdiction (Extension of Time) Conference/Hearing on 16 December 2019, Mr King represented himself and Mr Dean Stephen, the managing director, represented the Respondent. I consulted with the parties as to their views on whether the matter should proceed by way of determinative conference or formal hearing. After consideration of the requirements of s.399(1) of the Act, I determined it would be most appropriate for the matter to be dealt with by way of a determinative conference.

[8] I also raised with the parties my observation that Mr King's Form F2 - Unfair Dismissal Application (Form F2) and Outline of Argument appeared to contain material that was in the nature of proposed evidence and it was my intention to treat it as such. I was conscious Mr King was not represented and that he may not have fully appreciated the distinction in Commission proceedings between the Form F2 and Outline of Argument on the one hand and the Statement of Evidence, on the other. The parties agreed to this course of action.

[9] Mr King first commenced employment with the Respondent on 17 October 2013. It would appear that this engagement ceased on 30 March 2015. There is some conjecture surrounding the date upon which Mr King was re-hired but this is not necessary for me to resolve.

[10] A conversation between Mr King and Mr Stephen took place on either Monday 5 August 2019 or Tuesday 6 August 2019. There were no witnesses to their conversation and nor was its outcome confirmed in writing at the time. Nonetheless, both parties agree that Mr King's employment terminated on Friday 9 August 2019 and that on 15 August 2019, Mr King was paid his accrued entitlements (excluding redundancy) and a payment in lieu of notice.

[11] The parties dispute what was discussed at that meeting, which was called by Mr Stephen. He wanted to discuss some work Mr King had recently carried out for a client and Mr King acknowledged the meeting was set up to discuss some issues regarding his performance. He said that it was also put to him at the meeting that he had not properly applied for his forthcoming annual leave, that there was no room for him to grow at the company and that two project managers did not want him on their jobs. Mr King said he was told:

• he and the Respondent would be going separate ways;

• he was to be made redundant and that is what prospective new employers would be told;

• he would receive three weeks' pay in lieu of notice and a letter of recommendation; and

• Friday 9 August 2019 would be his last day of work.

[12] Mr King said he did not ask about redundancy pay because he did not want to make the meeting unpleasant. He was also concerned he would not get the letter of recommendation if he did so. He said he did not think he would not be paid his redundancy entitlement or that there would be a dispute about it.

[13] Mr King maintains that at this time, he did not believe he had been unfairly dismissal and that while he had hoped to stay working for the Respondent, he accepted he had been made redundant, respected that decision and was content to receive the letter of recommendation and redundancy pay. He said that he did not agree that there was no work for him but because he knew he was not wanted by the Respondent, he did not challenge the decision and instead decided to take the opportunity the redundancy presented to make a fresh start.

[14] Mr Stephen's version of events differs. He said there was discussion about Mr King's performance and he asked Mr King where did he think they should go with it. Mr Stephen says he also asked Mr King about his plans moving forward. Mr Stephen said the outcome of the discussion was that the parties agreed it might be best that they part ways. Mr Stephen maintains this was Mr King's call and that he had said "maybe it is time to move on". To this, Mr Stephen said he replied, "Why don't we wrap it up". He said that he then suggested that Mr King be paid three weeks' notice plus entitlements and that they shake hands. Mr Stephen says there was no mention of redundancy and that is why there was no resignation or redundancy letter.

[15] After Mr King completed work on 9 August 2019, he immediately went overseas on his pre-booked holiday and returned for the week commencing Monday 2 September 2019. He submitted copies of text message conversations he says he had with family members and friends during the period 5 August 2019 - 18 September 2019.[1]

[16] Upon returning, Mr King said he immediately began applying for jobs and attending job interviews. He said he knew he was entitled to a redundancy payment but because he was still waiting for the letter of recommendation from the Respondent, he did not ask for the redundancy payment. He was concerned doing so might hinder his chances of receiving the letter. Mr King said he sent an email and made a number of phone calls seeking the letter of recommendation, with the only response received being a phone call from Mr Stephen advising the letter would be done by the end of week being 5 September 2019. Mr Stephen said he was very busy at this time.

[17] Mr King said he worked some night shift from Sunday 8 September 2019 and on 12 September 2019 he was offered temporary work commencing on 16 September 2019. By 24 September 2019, he had decided he could wait no longer for the letter of recommendation so he sent Mr Stephen an email outlining his understanding, based on a discussion with the Fair Work Ombudsman (FWO), that he should have received 10 weeks' redundancy pay in addition to his notice payment. Mr Stephen said this was the first time the topic of redundancy was raised with him. His email reply on 24 September 2019, which did little more than outline that the Respondent was a small business, was based on advice he had received that small business employers are not required to make redundancy payments. Mr Stephen conceded he did not assert that Mr King had resigned in this email and said, by way of explanation, that he was more focussed on addressing the redundancy claim.

[18] Mr King followed up on 25 September 2019 with a further email to Mr Stephen and repeated his claim for redundancy pay, basing his claim on the Respondent having had more than 15 employees at the time of his termination and advice he had received from the Fair Work Ombudsman regarding s.23 of the Act.

[19] As this email was met with no response, Mr King sent a follow up request via email on Monday 7 October 2019. Mr Stephen replied the same day, simply advising he had received legal advice and that he was "confident" regarding that advice.

[20] Mr Stephen followed his email with a letter sent via email at 9.21pm on 8 October 2019, which asserted Mr King had resigned on 6 August 2019 and the resignation had been accepted by the Respondent. Further, the letter outlined the Respondent's rejection of the suggestion that Mr King had been made redundant and asserted that Mr King's former position was being performed by another employee.

[21] Mr King said that he was shocked by this response and was unsure of what to do next. He did however send Mr Stephen an email at 4.19pm on 12 October 2019, which stated:

As you are aware I did not resign my position but was in fact made redundant by yourself at a meeting requested by you on the 5th of August.

My understanding is that I am entitled to a correct level of redundancy payment after over 5 years of work for your company.

I will seek further legal advice regarding this matter..."

[22] Mr King said that at the time of this correspondence, he had been in dialogue with the FWO but had only been discussing the quantum of his redundancy pay entitlement. He said that he was ultimately informed by the FWO that it could not force the Respondent to pay him redundancy entitlements and as the Respondent disputed his claim, he would need to contact Jobwatch for free legal advice. Mr King thought he last spoke with the FWO on or about 9 October 2019.

[23] When asked why he did not make contact with Jobwatch until approximately four weeks later on 6 November 2019, Mr King said he found this difficult to do so as he was constantly working during the day and Jobwatch did not take calls after hours. Mr King also said:

• he had to move house and return to live with his parents as he could longer afford to rent;

• he had started new work; and

• he was looking for work, sending applications and attending job interviews.

[24] Mr King said at that time, securing a new job was more important to him than contacting Jobwatch because he needed money to survive.

[25] Mr King also said he took being made redundant hard emotionally, with his mental health deteriorating as a result. He said he suffered PTSD as a result of being attacked in 2011, which he says he now manages with a support group comprising his partner, family members and friends and that he has not had medical treatment from a psychiatrist since 2012. This, he says, accounts for his lack of medical evidence.

[26] Mr King said that when he made contact with Jobwatch on 6 November 2019, he was advised that his dispute could be filed as an unfair dismissal case. Mr King says that up until receiving this advice from Jobwatch, he was unaware that he had been unfairly dismissed.

[27] The Form F2 was filed the next day, on 7 November 2019.

Extension of time - should an extension of time be granted?

[28] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s.394(3) of the Act. These are:

(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.

[29] Only if the Commission is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[30] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[2] where the Full Bench said:

"[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." [Endnotes not reproduced]

[31] I will now address the legislative criteria.

Section 394(3)(a) - the reason for the delay

[32] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[3] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[4] the Full Bench explained the approach to be taken by reference to the following example:

"For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."[5]

[33] A credible explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible explanation for the entirety or any part of the delay. Although outlined in the context of a general protections application involving dismissal, the approach to be taken as explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis)[6] is instructive:

"[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."

[34] The 21 day time period for Mr King to make an unfair dismissal application pursuant to s.394 of the Act expired on 30 August 2019. As outlined in paragraph [4] above, the Application filed on 7 November 2019 was 69 days late.

[35] Mr King's application for an extension of time is based on the proposition that until 8 October 2019, he was unaware his dismissal on account of redundancy was a sham. He says that although a redundancy payment was not discussed when he was terminated, he had no reason to suspect it would not be paid. The correspondence between the parties suggests the first time Mr King requested payment was 24 September 2019 and while his request was immediately rejected, it was not until 8 October 2019 that the Respondent first asserted Mr King had resigned. Mr King says it was also at about this time that the FWO advised him to seek legal advice from Jobwatch because his redundancy claim was disputed.

[36] Mr King is therefore inviting me to conclude he has a credible explanation for at least 39 days of the 69-day period of the delay. Even if this was accepted, another 29 days passed before he contacted Jobwatch and it was 30 days before he lodged the Application.

[37] Mr King says he was not aware of the possibility of pursuing an unfair dismissal application until he spoke with Jobwatch on 6 November 2019 but it is well established that ignorance of one's rights will not usually provide an acceptable explanation of a delay in lodging an unfair dismissal remedy within the time prescribed.[7]

[38] Mr King also said it was difficult for him to contact Jobwatch because he was constantly working during the day and Jobwatch did not take calls after hours. I do not consider this to be a credible explanation because he also said he was looking for work, sending applications and attending job interviews during this period. These actions are not exceptional and the reality appears to be that Mr King simply gave them priority over contacting Jobwatch.

[39] Mr King spoke of the emotional toll of having been made redundant and the accompanying deterioration of his mental health. It was held in Giles v Mandurah Aquatic and Recreation Centre that it is not unusual for employees to be distressed when their employment is terminated and nor is it unusual for employees to be unaware of their options.[8] Further, it has previously been found that it is common for employees to suffer shock and trauma as a result of dismissal from employment[9] and it was said in Casey v Guardian Community Early Learning Centres T/A Smith Street Childcare:

"...stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay."[10]

[40] While it is conceivable Mr King may have been stressed as a result of the termination of his employment, his evidence was generalised and did not speak to an incapacity to lodge an unfair dismissal application. Mr King did not seek or require medical treatment and nor did he suggest it had impacted on his capacity to seek and perform new employment. Indeed, as indicated above at [38], Mr King attended to other tasks during this period. I am not persuaded the emotional impact from the termination provides an acceptable reason for Mr King's delay.

[41] Finally, I also do not consider the factor of having to move house and return to live with his parents provides an acceptable reason for Mr King's delay.

[42] Mr King submits it is the combination of these factors that make his circumstances exceptional. I am unable to agree. Drawing on the approach of the Full Bench in Woolworths Limited v Ms Yu Duo (Lynda) Lin,[11] there is no basis in the circumstances of this case to find that these explanations covering the period from 8 October 2019 onwards, none of which provide an acceptable reason for the delay, provide in combination a satisfactory explanation for that part of the delay when viewed together.

[43] Having considered the various reasons Mr King has provided for his delay in making the Application, I am not satisfied that he has provided a credible explanation for a significant portion of the delay. This factor weighs against a finding of exceptional circumstances and granting Mr King an extension of time.

Section 394(3)(b)- whether the person first became aware of the dismissal after it had taken effect and s.394 (c) - any action taken by the person to dispute the dismissal

[44] There is no dispute that the outcome of the conversation between Mr King and Mr Stephen was that Mr King's employment would terminate on Friday 9 August 2019_._ The consideration in s.394(3)(b) is therefore not relevant in the present circumstances.

[45] However, Mr King says he proceeded on the basis that his employment was terminated due to redundancy and it was not until 60 days after it took effect, on 8 October 2019, that he became aware that the Respondent asserted he had resigned. Mr Stephen says it was Mr King's decision to resign.

[46] Until 12 October 2019, Mr King had been initially waiting for and then requesting payment for redundancy. By his email of that date, he disputed the Respondent's assertion, made on 8 October 2019, that he had resigned, maintained he was entitled to redundancy pay and stated he would seek further legal advice.

[47] Therefore, Mr King's position is that he was aware of a dismissal on the basis of redundancy before it took effect on 9 August 2019 but was unaware the Respondent regarded it as a resignation until 8 October 2019_._ While Mr King disputed the Respondent's characterisation of the dismissal in his email dated 12 October 2019, this was the only action he took to dispute it until he consulted Jobwatch 29 days later, ahead of filing the Application on 7 November 2019.

[48] As such, I consider the action Mr King took to dispute the dismissal weighs only very marginally in favour of a finding that there are exceptional circumstances.

Section 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[49] Prejudice to the employer will weigh against granting an extension of time.[12] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time."[13]

[50] Mr King submitted that the delay has not caused the Respondent to suffer any disadvantage or unfairness.

[51] The Respondent submits this factor weighs against a finding of exceptional circumstances, citing the burden on it of having to invest significant time, money and resources to now resolve a matter which could have been addressed earlier and possibly avoided_._

[52] I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period but do not consider this is as a factor that weighs in favour of the grant of an extension of time in the circumstances of this case. It is a neutral factor.

Section 394(3)(e) - the merits of the application

[53] In Mr Keith Long v Keolis Downer T/A Yarra Trams,[14] the Full Bench stated that for the consideration in s.394(3)(e) to weigh in favour of granting an extension of time, it must be shown that there is some merit in the substantive application and further, the weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.[15]

[54] The Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd determined that as evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[16] for the purpose of determining whether to grant an extension of time to the applicant to make their application. In particular, it is considered "undesirable that parties be exposed to the requirement to present their evidentiary cases twice".[17]

[55] At the determinative conference, the exploration of the reasons for Mr King's delay in making the Application saw Mr King advance the argument that he had laboured under the misapprehension that he had been made redundant and would receive a redundancy payment until the Respondent changed the way in which it characterised his termination and this accounted for over half the period of his delay.

[56] In his Outline of Argument, Mr King outlined why he believes his dismissal was unfair as follows:

"1. The dismissal was originally labelled a redundancy up until the point when I proved his company is not a small business and therefore did owe me a redundancy pay. This was when he sought legal advice and changed the way my dismissal was described.

2. I see this as unfair as it was only changed so that my employer would not have to pay me the money I am entitled to.

3. I believe the dismissal was cruel as my employer is aware of my good nature and that he believed I would not fight him on this or stand up for myself, particularly after involving his lawyers.

4. The dismissal is cruel as I have been put in a very uncomfortable position of trying to find a new job, particularly right before going overseas for three weeks, causing me stress and emotional discomfort.

5. The dismissal was unfair as I was unable to act on it for such a long time, due to circumstance that arose from the way in which I was made redundant. That is the travel time outlasting the 21 days required to submit the form. As well as not being told that my employer had changed his mind on the way my employment ended until much later again.

6. The dismissal is unfair as it suggests that I resigned when at no point did I offer a written letter of resignation which I am required to do.

7. The dismissal is cruel and unfair as I have been made to feel embarrassed about being made redundant from a company I worked at for over 5 years, having to tell friends and family of my redundancy, making me feel as though I was not competent and then after being made to feel that embarrassment, I was lied to and told that I was the one who resigned."[18]

[57] Mr King further developed his attack on the basis for the redundancy at the determinative conference. He claimed it was not genuine, that he was forced out and that there are new employees who have been employed by the Respondent to perform the work of A-grade electricians.

[58] It is not disputed that Mr Stephen called for the meeting that took place on either 5 August 2019 or 6 August 2019 because he wanted to raise some performance issues with Mr King.

[59] Mr King described having been hopeful of remaining in employment with the Respondent, but upon discovering he was no longer wanted at the meeting, he accepted he had been made redundant, was respectful of that decision and content to receive a letter of recommendation and redundancy pay, rather than challenging the assertion there was no work for him. Thereafter, the correspondence reveals Mr King was certainly intent on being paid a redundancy payment and was challenging the Respondent's replies to his requests. However, it was not until he consulted Jobwatch that he began asserting that there was no valid reason for his dismissal.

[60] Mr King tendered what he said were a series of text message conversations[19] he had following the meeting on 5 or 6 August 2019. They disclose different accounts from him as to what had occurred:

• In three text message conversations, Mr King appears to have stated he had been made redundant;

• In another, Mr King appears to have stated Mr Stephen got rid of him but the circumstances were interesting and "best discussed over a beer"; and

• In another, Mr King appears to have stated he "got the boot" and had been told there was no room for him to grow and that Krystal and Trent did not want him on their jobs.

[61] However, Mr King did not ask about redundancy pay either during the meeting on 5 or 6 August 2019 or in the lead-up to finishing with the Respondent on 9 August 2019. Nor did he follow up having received his final payment from the Respondent on 15 August 2019 or when requesting a reference letter on 5 September 2019. The reasons he gave were that he did not want to make the abovementioned meeting unpleasant and he was concerned he would not get the letter of recommendation if he requested payment. In a text message conversation, Mr King appears to have stated that Mr Stephen had told him at some stage that he would be a referee and if anyone called him, he would say that Mr King was made redundant because work had dried up. Mr King also appears to have stated that he would wait until he had a new job before asking about redundancy pay.[20] It was not until seven weeks after the conversation on 5 or 6 August 2019 that Mr King first appears to have asked the Respondent about redundancy pay.

[62] The Respondent denies it terminated Mr King's employment on the basis of redundancy. It further submits Mr King was not dismissed within the meaning of s.386 of the Act, with Mr King's resignation not being forced but rather, an action he undertook of his own volition.

[63] At the determinative conference, Mr Stephen said it was Mr King who initiated the termination by resigning. He explained his failure to assert this when Mr King first requested redundancy pay on 24 September 2019 with the statement that he did know where the notion of Mr King's termination being a redundancy had come from.

[64] Determining whether the termination of Mr King's employment was due to a resignation or a redundancy or indeed was on some other basis would entirely depend on findings of fact and assessments of witness credibility. The determination of the merits of the Application involves the resolution of contested issues of fact which I consider would only be possible after a full hearing, including more fulsome evidence and the testing of it through the cross examination of relevant witnesses. Both accounts given before me contained elements that suffered from a lack of plausibility however I found Mr Stephen to be the less persuasive witness.

[65] The Full Bench in Snyder v Helena College Council, Inc. t/as Helena College_[21]_ stated in relation to s.394(3)(e):

"...the merit of the substantive application will fall somewhere on a continuum from no merit to substantial or overwhelming merit. An absence of significant merit will generally sound against a finding of exceptional circumstances." [22]

[66] I am satisfied that the Application is of sufficient merit to weigh in favour of a finding of exceptional circumstances.

Section 394(3)(f) - fairness as between the person and other persons in a similar position

[67] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[23] considered this criterion and said:

"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."[24]

[68] I am not aware of any persons or cases that are relevant to the question of fairness as between Mr King and other persons in a similar position and do not regard this consideration to be relevant in this case.

[69] The threshold requirement for exceptional circumstances is not a general discretion proceeding upon considerations of fairness[25] and the matters identified in s 394(3) of the Act "are required to be taken into account only for the purpose of determining whether there exist exceptional circumstances."[26]

[70] The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis:

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each."[27]

[71] I have considered each of the matters specified in s.394(3) of the Act. I have found paragraphs (c) and (e) weigh in favour of the grant of an extension, with (c) to only a very marginal degree. Paragraphs (b), (d) and (f) are not relevant or neutral. I consider paragraph (a) weighs against a finding of exceptional circumstances. I am not satisfied that Mr King has provided a credible explanation for a significant portion of the delay.

[72] Having weighed each of the considerations in s.394(3) of the Act and having considered them collectively, I am not satisfied there was a combination of factors which, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.

[73] I have not been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394(3) of the Act and I decline to exercise my discretion to extend the time for Mr King to make his Application.

[74] Accordingly, the Application is dismissed and an Order to that effect will be issued with this Decision_._

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

[3] 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].

[4] [2016] FWCFB 349

[6] [2018] FWCFB 901.

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[8] [2015] FWC 1881 at [8].

[9] Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [10].

[10] [2014] FWC 4002 at [16].

[11] [2018] FWCFB 1643 at [66].

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

[14] [2018] FWCFB 4109

[16] Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].

[21] [2019] FWCFB 815.

[23] [2016] FWCFB 6963.

[25] Gail Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [24].

[27] [2018] FWCFB 901.

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