Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances - application dismissed.

[1] This decision concerns an application by Mr Kevin Howard (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.

[2] The Applicant was employed by Autosports Group Limited (the Respondent) as a Sales Consultant. He was advised by letter dated 25 November 2020 that his employment was terminated with immediate effect, with pay in lieu of notice. His unfair dismissal application was lodged on 17 December 2020.

[3] Section 394(2) of the Act states 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 pursuant to s 394(3). The period of 21 days ended at midnight on 16 December 2020. The application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). This was opposed by the Respondent.

[4] The matter was listed for hearing by telephone on 12 February 2021. The Applicant appeared on his own behalf and Ms Melissa Hume (HR Manager) appeared for the Respondent.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]

[6] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

• (a) the reason for the delay;

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

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

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

• (e) the merits of the application; and

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

[8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

[9] The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[3]

[10] The Applicant provided the following explanations as to the reason for the delay:

• The dismissal came as a shock and occurred during a stressful and busy time. "Surprise unemployment duress just at the commencement of holidays & Covid 19 restrictions in regards to seeking advice on this issue meant I was left to my own faculties to pursue this matter and hence I looked toward the information provided as I am not legally trained."

• He was aware of the 21 day time limit but had miscalculated the date, believing he had filed the application on the last day within the statutory period.

[11] I do not consider that the reasons provided by the Applicant constitute an acceptable reason for the delay.

[12] It is not uncommon for employees to experience stress, shock or confusion when their employment is terminated. These reasons without more are generally not considered as acceptable explanation for making an unfair dismissal application outside the 21 day statutory timeframe.

[13] As to the miscalculation of the 21 day period, the Applicant chose to wait until the last date on which his application could be made and then miscalculated the last date. This does not in my view constitute an exceptional circumstance. It is at most an unfortunate error.

[14] I am not satisfied that any of the matters relied upon by the Applicant as reasons for the delay, individually or collectively, prevented him from making the application within time.

[15] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

[16] The Applicant was aware on 25 November 2020 that his employment with the Respondent ended on the same day. I am therefore satisfied that the Applicant had the full 21 day period to lodge his unfair dismissal application. I consider this factor weighs against a finding of exceptional circumstances.

[17] The Applicant had communicated with the Respondent after the dismissal to advise of his intent to file the claim. No other steps were taken to dispute the dismissal. I consider that this factor does not weigh in favour or against a conclusion that there are exceptional circumstances.

[18] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[19] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission 'should not embark on a detailed consideration of the substantive case.

[20] The Applicant submitted that his dismissal was procedurally unfair and he was never warned in relation to his performance or conduct. The Respondent, on the other hand, argued that the dismissal was not harsh, unjust or unreasonable and maintained that a fair process was followed.

[21] Overall, on the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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

[22] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[23] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[24] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

Printed by authority of the Commonwealth Government Printer