s.394 - Unfair dismissal

Application for unfair dismissal remedy - jurisdiction - extension of time.

[1] On 6 February 2020, Ms Jordanka Petkoff (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy.

[2] It was agreed during the conference that the applicant was dismissed by letter dated 15 June 2018, which took effect on receipt on at least 19 June 2018. This means that the applicant is a considerable period out of time, about 19 months, as the application was not lodged until 6 February 2020.

[3] BLSSA Pty Ltd (the respondent) opposes an extension of time being granted.

[4] I have taken account of all submissions and evidence. An extension of time hearing was held by teleconference on 27 March 2020, by way of determinative conference consistent with s.399 of the Act.

[5] As the application was more than 21 days after the dismissal, the application must be dismissed unless an extension of time is granted.

[6] Section 394 of the act provides:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

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

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

(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:

(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."

[7] In Nulty v Blue Star Group Pty Ltd,[1] a Full Bench considered the term 'exceptional circumstances' as it arises pursuant to s.366 which are relevant to s.394 of the Act:

"[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.

[15] A finding that there are "exceptional circumstances", taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when "exceptional circumstances" are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended."

Section 394(3)(a) - Reason for delay

[8] In Gao v Department of Human Services[2] a Full Bench observed the following with respect to submissions for a delay in the filing of an application for relief from unfair dismissal:

"[10] The first ground is that the Deputy President failed to take into account that the delay was in part due to DHS's conduct in not responding to Mr Gao's request for further review of the matters said to be relevant to the dismissal. After DHS had provided an initial response to Mr Gao in relation to his dismissal, Mr Gao made a request that DHS further review some of the circumstances. The request for further review was made on 9 July 2010 and not responded to by DHS. Mr Gao made a further request on 3 December 2010. This ground cannot be sustained. The Deputy President did take these events into account and referred to them in his decision. Mr Gao no doubt believes that the Deputy President should have attached more significance to them, but in our view the Deputy President was entitled to reach the conclusion he did on the totality of the material. Furthermore, Mr Gao's request that DHS further review the dismissal did not constitute a circumstance excusing the delay in lodging the application. A further review could have been sought even after an application had been lodged.

[11] The second ground of appeal is an allegation that the Deputy President failed to take into account that the email Mr Gao sent to DHS on 9 July 2010 disputed his dismissal. Far from failing to take the email of 9 July 2010 into account, the Deputy President expressly referred to it. His Honour expressed doubt that many aspects of the letter related to the contest over the dismissal, but found that Mr Gao had done nothing to further his case after that email until 3 December 2010. These were clearly relevant considerations and the Deputy President was entitled to take them into account in considering the extent to which Mr Gao disputed the dismissal.

[12] The third ground of appeal involves an allegation that DHS had encouraged Mr Gao to believe that DHS was reviewing his dismissal under the DHS Fair Treatment policy and that this had led him not to lodge an application until the review had been completed and the result notified to him. It is sufficient if we indicate that it was open to the Deputy President to take the view, as His Honour obviously did, that any belief which Mr Gao had about the possibility of a favourable review under the Fair Treatment policy did not provide an adequate excuse for delaying the lodgement of the application until December 2010."

[9] In this case the applicant argued that she made every attempt to resolve the matter internally,[3] and to resolve it through contacting the Credit and Investment Ombudsman, and was given misleading advice.[4] However, it was open to the applicant to lodge an application with the Commission within time while undertaking attempts to resolve the matter internally or by other means, having regard to the observations in Gao. Further, while the allegedly misleading advice of the respondent may be unfortunate, it is the responsibility of the applicant to look after her own interests, and to obtain advice, and in any event the applicant was advised by the respondent to obtain legal advice.[5] If she had obtained that advice, her interests may have been better served. The reason for the delay was the applicant's choice of conduct, which counts against an extension of time.

Section 394(3)(b) - Became aware of the dismissal

[10] It is not in contest that the applicant was aware of the dismissal shortly after receiving the letter of dismissal on 19 June 2018.[6]

Section 394(3)(c)- Disputing the dismissal

[11] The applicant disputed the dismissal by utilising the various appeal provisions she utilised, and this was accepted by the employer.[7]

Section 394(3)(d) - Prejudice to employer

[12] The application is about 19 months out of time, and this is likely to have a prejudicial effect on the employer, as claimed by the employer.[8] This applicant denies there was a prejudicial effect.[9] I accept the employer's submission.

Section 394(3)(e) - Merits of application

[13] This is a neutral consideration, as the issue of whether or not the applicant was an employee, for example, needs to be determined by submissions and evidence.

Section 394(3)(f) - Fairness between persons

[14] There appear to be no other persons in a similar position, and none were claimed.[10]

[15] I have had regard to all factors. In my view there are not exceptional circumstances justifying an extension of time. I dismiss the application. An order dismissing the application is contained in Print PR718031.

[1] [2011] FWAFB 975.

[2] [2011] FWAFB 5605.

[3] Applicant's Outline of Submissions - Objections at [1(d)].

[6] Applicant's Outline of Submissions - Objections at [1(a)-(c)], Respondent's Outline of Submissions at [13].

[7] Applicant's Outline of Submissions - Objections at [1(e)], Respondent's Outline of Submissions at [14].

[8] Respondent's Outline of Submissions at [15] - [16].

[9] Applicant's Outline of Submissions - Objections at [1(g)].

[10] Applicant's Outline of Submissions - Objections at [1(i)], Respondent's Outline of Submissions at [19].

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