s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 24 days out of time - circumstances not exceptional - extension not granted - application dismissed.

• [1] Mr Lara Makhlout lodged a Form F2 - Unfair Dismissal Application (Form F2)[1] on 7 March 2024, which outlines a claim for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent named in the Form F2 is Bay Dental Brighton (Respondent). The Form F2 lodged on 7 March 2024 was missing the final signature and date page and even though it outlines that Ms Makhlout was notified of her dismissal and that the dismissal took effect on 22 January 2024, the Form F2 also includes an assertion that the application was being made within 21 days after the alleged dismissal took effect. In response, a Form F3 - Employer Response to unfair dismissal application (Form F3) was filed by the Respondent. The Form F3 includes the assertions that Ms Makhlout's application was lodged out of time and further, that the Respondent is a 'Small Business Employer' which had complied with the Small Business Fair Dismissal Code (SBFDC).

Background to making the unfair dismissal application

• [2] Having been notified of her summary dismissal on 22 January 2024, Ms Makhlout stated that she contacted the Commission on 23 January 2024 via telephone and sought information regarding the unfair dismissal claim process. Thereafter she lodged a Form F2 on 4 February 2024 in which she answered the question as to whether she was making the application within 21 days of when her dismissal taking effect (Question 1.6) in the affirmative.

• [3] Ms Makhlout had prepared this Form F2 with the assistance of a relative. It was sent by her to the email address Melbourne@fwc.com.au[2] at 10:25pm on 4 February 2024. At that time, Ms Makhlout believed her application had been successfully submitted and she said she did not receive a 'bounce back' email after sending the 4 February 2024 email. On 5 February 2024, Ms Makhlout appears to have notified her medical specialist (Associate Professor Kristen Herbert) that she had submitted an unfair dismissal claim on 4 February 2023. Associate Professor Herbert has confirmed this in a letter dated 19 March 2024.[3] Ms Makhlout said that she then travelled to Spain on 6 February 2024, where she underwent a medical procedure and remained there until the end of the month. Having arrived back in Australia in late February 2024, Ms Makhlout contacted the Commission by telephone on 7 March 2024 in order to seek an update on the status of her application. Ms Makhlout said it was during this phone call that she first learned that no application could be found on the Commission's system. Having become apparent that the Form F2 sent on 4 February 2024 had been sent to the wrong email address, Ms Makhlout immediately sent her application to Melbourne@fwc.gov.au. She said she did so whilst still on the telephone call with the Commission staff member, having been advised that this was the correct email address. Ms Makhlout's Form F2 filed on 7 March 2024 was therefore lodged 24 days late.

• [4] 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.[4] 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.[5]

• [5] 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.

• [6] 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.

• [7] 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 the circumstances must be considered.[6]

• [8] 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, which in this case ended at midnight on 12 February 2024. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for (in this case) the 24-day delay, or any part of that delay, beyond the 21-day period.[7]

• [9] As to the circumstances from the time of the dismissal to the end of the 21-day period, Ms Makhlout said she was unaware that the email address she used on 4 February 2024 (Melbourne@fwc.com.au) was incorrect. When giving evidence at the determinative conference, Ms Makhlout could not remember whether:

a) she was told by the Commission staff member on 23 January 2024 to send her application to Melbourne@fwc.com.au; or

b) she heard incorrectly, thinking the address given was Melbourne@fwc.com.au, when she asked for the particulars of the email address to be used for lodging her application; or

1. she typed the incorrect email address for the Commission when preparing to lodge her Form F2 on 4 February 2023.

• [10] Secondly and relatedly, Ms Makhlout maintains that when she emailed the Form F2 on 4 February 2024, she was emotionally distressed and very unwell due to a blood disorder becoming more severe and the new medication she was taking. She asserted that taking this medication resulted in side effects that lead her to send the Form F2 to the wrong email address on 4 February 2024. In the letter dated 19 March 2024, Associate Professor Herbert proffered:

"It is my medical opinion that she [Ms Makhlout] made this error [sending the Form F2 on 4 February 2024 to the wrong email address] due to poor judgement in the context of extreme emotional distress and physical illness, as her blood disorder was starting to become much more severe and I was treating her with a new medication which was making her feel very unwell. Poor concentration, fevers, chills, low mood, headaches and weight loss are common side effects of the medication she needed to take."[8]

• [11] Thirdly, Ms Makhlout said that she did not receive a 'jump back' email from Melbourne@fwc.com.au, with the result that she remained unaware that the Commission had not received the Form F2 on 4 February 2024 until her telephone conversation with the Commission staff member on 7 March 2024.

• [12] I am not satisfied there were circumstances from the time of the dismissal to the end of the 21-day period for the making of an unfair dismissal application that provide an acceptable or reasonable reason for the ensuing 24-day period of delay.

• [13] Firstly, I am not persuaded by the suggestion that a member of the Commission staff would have advised Ms Makhlout to file an application using Melbourne@fwc.com.au. I consider it more likely that Ms Makhlout (as she proffered) either heard incorrectly or typed the incorrect email address for the Commission. Ignorance of the correct email address for lodgement would not found an acceptable reason for the delay. Ignorance of the unfair dismissal laws and procedures will not usually provide an acceptable explanation for a delay in lodging an unfair dismissal application within the time prescribed. Unfamiliarity is not exceptional. Further, the Commission's website is replete with information regarding the making of unfair dismissal applications and references, for example, to the web address of www.fwc.gov.au.

• [14] Secondly, I have noted that Ms Makhlout has a serious medical condition, but I am not persuaded that it contributed to her using the incorrect email address. This is because Ms Makhlout was capable of preparing, with the assistance of a relative, a comprehensive and extremely detailed Form F2, which included specific allegations and engagement with a range of matters the Commission is required to consider when determining unfair dismissal applications. This document also referenced and included two attachments and outlined the correct particulars and contact details for the Respondent, including the correct Australian Business Number. Four documents, a Form F2, a Form F80, and two attachments, were attached to an email sent to Melbourne@fwc.com.au. I have noted also that when emailing the Form F2 on 7 March 2024 the final two pages do not appear to have been attached by Ms Makhlout and the date placed on the Form F2 may have been 5 February 2024. In all the circumstances of this case, I am not persuaded that Ms Makhlout's medical condition compromised her capacity to use the correct email address for the Commission. The making of that typographical error in the circumstances of this case does not constitute an acceptable reason for the delay.

• [15] Finally, I am not persuaded there is anything exceptional about Ms Makhlout not receiving a 'jump back' email from Melbourne@fwc.com.au or a communication suggesting it had not been delivered to the Commission. This cannot be characterised as a breakdown in the Commission's processes because that email address is not administered by the Commission. The holder of the email address with fwc.com.au in it is a private entity with no relationship with the Commission. I do not consider that entity has an obligation to either be cognisant of the statutory time period applicable to unfair dismissal applications or ensure that people using its address can remedy their mistakes within time.

• [16] As to the period of delay, by the time the 21-day period expired at midnight on 12 February 2024, Ms Makhlout was in Spain. Then followed the period after her return to Australia in late February 2024 until 7 March 2024.

• [17] At the determinative conference, Ms Makhlout disclosed that during her time in Spain, the majority of which was outside the 21-day time period, she underwent a medical procedure and was "under a lot of medication." It can be accepted that during this time she would have been focussed on her health. However, Ms Makhlout also disclosed that while she was in Spain, she received a number of telephone calls from the Fair Work Ombudsman in relation to her attempts to try and recover her pay. Specifically, Ms Makhlout said:

"I was dealing with the Fair Work Ombudsman and to be quite honest I actually got confused between the two [Fair Work Commission and Fair Work Ombudsman] because I ended up emailing the gentleman from Fair Work Ombudsman and referred to him as someone from the Fair Work Commission and you know, this was all new to me..."

• [18] Ms Makhlout explained that her health condition, the medication she was taking, and her jetlag combined to make her very unwell, such that it took approximately one week after her return to feel settled and back on track in terms of her health. Ms Makhlout said she then contacted the Commission by telephone on 7 March 2024 and having become aware that her application was sent to an incorrect email during the ensuing telephone conversation, she acted immediately by lodging her unfair dismissal application via the correct email address at 9.40am that same day.

• [19] I have noted Ms Makhlout's evidence of having been confused between the Fair Work Commission and Fair Work Ombudsman but do not consider this provides an acceptable or reasonable explanation for any part of the 24-day period of delay. Further, it is not exceptional because all too frequently, unrepresented parties before the Commission express confusion about whether they have dealt with the Ombudsman or the Commission. The attachment of "Fair Work" to the name of both organisations has long been and continues to be a source of confusion and frustration for unrepresented parties.

• [20] More fundamentally, when the 21-day time period had expired, Ms Makhlout was and remained unaware that she had not filed her application. The continuing delay was a result of Ms Makhlout's use of an incorrect email address on 4 February 2024. I am not persuaded by the suggestion that Ms Makhlout would have followed up earlier than 7 March 2024 but for her medical condition, because as far as she was concerned, she had made her unfair dismissal application on 4 February 2024. Equally, the Commission could not communicate with Ms Makhlout prior to 7 March 2024 (and had no cause to) because no unfair dismissal application had been received from her.

• [21] Having regard to the evidence before me, I do not consider there were circumstances within the 21-day period prescribed for making an application, or during the period of delay, that provide an acceptable or reasonable explanation for the 24-day delay. The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.

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

• [22] I am satisfied that on 22 January 2024, Ms Makhlout became aware of her dismissal with immediate effect. Ms Makhlout therefore had the full period of 21 days to lodge her unfair dismissal application. This consideration is a neutral consideration.

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

• [23] Other than lodging her unfair dismissal application (including the failed attempt to lodge on 4 February 2024), there was no action taken by Ms Makhlout to dispute her dismissal after it took effect in the form of dialogue or correspondence with the Respondent. The consideration is a neutral consideration.

• [24] Ms Makhlout submits that the Respondent would not be disadvantaged by the later receipt of her application. The Respondent "accepts the delay in the matter is not extreme".

• [25] I cannot identify any greater prejudice that would accrue 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. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. The consideration is a neutral consideration.

• [26] I am required to "take into account" the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

• [27] Ms Makhlout was summarily dismissed on 22 January 2024 during her notice period, having tendered her resignation on 15 January 2024 and given notice ahead of a final day of employment on 26 January 2026.[9] She had been employed by the Respondent on a part time basis and concurrently held other part time employment with another employer. The Respondent asserts Ms Makhlout engaged in misconduct because she had submitted a medical certificate stating she was "unable to work from Friday January 12 to January 26 [2024]"[10] but proceeded to engage in work for her other employer while seeking to access paid personal leave from the Respondent.

• [28] Ms Makhlout did perform some work during her notice period. She admitted to having worked a half day for her other employer on both 16 January 2024 and 17 January 2024. However, Ms Makhlout also advised the Respondent that she did not perform work for the period she had "requested sick leave from my nominated days at Bay Dental Brighton" and stated that she had contacted the Respondent on 16 January 2024 requesting to be paid annual leave for any period of her notice period if she had insufficient sick leave accrued.[11] At the determinative conference Ms Makhlout disclosed that she had provided the medical certificate to her other employer and while admitting to have worked for them, as detailed above, further disclosed that she had also taken sick leave in relation to that employment.

• [29] While the material before me does not persuade me in relation to the merits of the Applicant's case, I accept there is evidence that would need to be tested, including under cross-examination, if an extension of time were granted and the matter were to proceed, and this may enable the Applicant to develop her case further. The merits of the application would depend on factual findings made at the final hearing. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

• [30] 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. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. This consideration is a neutral consideration.

• [31] The requirement is that there be exceptional circumstances before time can be extended under s.394(3). This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so.

• [32] The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, outlined reasoning also applicable for applications for extensions of time for unfair dismissal applications:

"[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."[12]

• [33] Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, 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, Ms Makhlout's unfair dismissal application is dismissed.

[2] Digital Court Book (DCB) at page 25.

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

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

[7] 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].

[12] [2018] FWCFB 901.

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