Fair Work Act 2009

s 394 - Unfair dismissal

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

• [1] On 4 December 2024, Mr Leslie Garry Smith (the Applicant) applied for an unfair dismissal remedy after having been dismissed by BHP WAIO Pty Ltd (Respondent) on 8 November 2024. The Respondent objected to the application on the basis that it had been filed five days outside of the statutory period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).

• [2] Section 396 of the Act provides that the Fair Work Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether an applicant lodged her or his unfair dismissal application with the Commission within the statutory time limit period prescribed by s 394(2) of the Act.

• [3] The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 394(3)(a)-(f) are considered.

• [4] The parties advised that they were content for the matter to proceed in the absence of a hearing. As there was no dispute as to the date of dismissal, and given the view expressed by the parties, I considered that the appropriate approach to adopt.

• [5] Briefly stated, I have found that the Applicant's unfair dismissal application was made five days late and the circumstances for the late lodgement are not exceptional. On that basis, the grant of an extension of time is unwarranted. It follows that the unfair dismissal application is dismissed, and an Order[1] issues concurrently with this decision. My detailed reasons follow.

• [6] As the Applicant's employment ended on 8 November 2024, he was required by s 394(2)(a) of the Act to have made his unfair dismissal application by 29 November 2024.

• [7] For the Applicant's unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following factors:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

• [8] The meaning of the term 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd, where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[2] It is accepted that 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, can be considered exceptional.[3]

• [9] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench stated the following in respect of the assessment of exceptional circumstances:

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.[4]

• [10] Regarding the first factor for consideration, the Act does not specify what reasons for delay might favour the granting of an extension. However, decisions of the Commission have referred to an acceptable[5] or reasonable[6] 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 still be considered.[7]

• [11] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[8] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[9]

• [12] Prior to the Applicant's dismissal he was employed by the Respondent as a Technician Mechanical at the Yandi mine site. According to the Respondent, the Applicant was on an unplanned and ongoing absence since 9 November 2023 due to a reported medical condition. The Applicant had been placed on unpaid leave from 7 December 2023 following the exhaustion of his leave entitlements.

• [13] On 14 May 2024, the Applicant was requested to attend a fitness for work assessment for the purposes of support his return to work, but according to the Respondent declined to complete the necessary consent form to allow the fitness for work assessment to proceed. The Respondent asserts that the Applicant was requested to provide further information from their treating practitioner to assist the Respondent to understand the Applicant's diagnosis, prognosis and return to work timeframes. The Applicant failed to provide further information as requested.

• [14] The Applicant stated that he objected to the Respondent having access to his full medical records on the basis that this was personal medical information beyond what was necessary, and what the Respondent required, to assess his fitness for work.

• [15] A further direction to attend a fitness for work assessment was said to have been provided to the Applicant on 1 October 2024. The Respondent stated that the Applicant failed to complete the consent form with sufficient information to allow the fitness to work process to proceed. The Applicant was said to have emailed the Respondent on 11 October 2024, to advise that he would provide a letter from his doctor. However, the Respondent submitted the Applicant failed to provide any further information to justify his absence or support his return to work.

• [16] A meeting was held with the Applicant on 31 October 2024 where the Respondent informed the Applicant of its concerns about his ongoing absence and failure to confirm return-to-work timeframes. The Respondent stated it informed the Applicant it was considering dismissing the Applicant. The Applicant was thereafter provided with a show cause letter and required to provide a written response by 1 November 2024. The Applicant was said not have provided a response or any additional information, and, consequently, the Applicant was contacted on 4 November 2024, to confirm if additional time was required. The Respondent stated that the Applicant responded that he had nothing further to add. At a meeting with the Applicant on 8 November 2024, he was informed that his employment was terminated with a payment of four weeks salary in lieu of notice.
• [17] In respect of the Applicant's reasons for the delay in making the application, the Applicant stated that the reason for the delay was because of illness and his inability to instruct a lawyer to lodge the application until 4 December 2024.

• [18] It is accepted that an applicant's medical condition can be so significant that it affects their mental capacity to prepare and file an application with the Commission. However, much may turn on the evidence adduced to support such proposition.

• [19] In Underwood v Terra Firma Pty Ltd,[10] the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days. The Full Bench affirmed the findings that the medical evidence relied upon 'did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21-day time frame' and that no exceptional circumstances were established.[11]

• [20] In Roberts v Westech IT Solutions Pty Ltd,[12] Senior Deputy President O'Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the applicant's depression. The applicant provided advice from his doctor that included details of the applicant's clinical depression over several years, details of his use of prescription medication, and details of his history of panic attacks after stressful events.[13]

• [21] However, in Parker v BHP Billiton Iron Ore Pty Ltd,[14] where the applicant had not provided any independent medical evidence that her sickness was so severe that it prevented her from making the application within time, it was observed that illnesses are 'not uncommon and without more evidence is not an acceptable reason for delay in making the application'. It follows that in the absence of clear medical evidence showing incapacity, it will be difficult for an applicant to establish they were prevented from lodging an application due to a medical condition.

• [22] Turning to the Applicant's reasons for the delay, it is first observed that the dismissal of the Applicant cannot be said to have taken the Applicant by surprise. The Applicant was placed on notice as early as 31 October 2024 that the Respondent was considering the termination of his employment.

• [23] Second, the Applicant was dismissed on 8 November 2024, and whilst he purports to falling unwell and feeling run down following his dismissal, no date is provided as to when this occurred. As to becoming unwell and run down, this does not in turn mean that the Applicant was so incapacitated that he could not make an unfair dismissal application or instruct someone on his behalf at this time.

• [24] It is further observed that it was not until 23 November 2024, that the Applicant is said to have tested positive for COVID-19 - some 15 days after his dismissal. There is no independent medical evidence before the Commission to substantiate the Applicant's assertions about his illness and incapacity and the duration of the same.

• [25] Third, with respect to having been bedridden and not seeing a doctor, the Applicant stated that the reason he never saw his doctor was that having had COVID-19 twice before, he knew that he would recover by resting and remaining isolated, and, in any event, it would have taken a week or two to see a general practitioner. The suggestion is not that the Applicant was so incapacitated that he could not see a general practitioner, but rather he had decided to rest and isolate, and booking an appointment with a general practitioner was essentially futile given the wait time.

• [26] Fourth, the Applicant states that he was too unwell to lodge the claim himself while affected by COVID-19 and did not have the written skills or knowledge of employment procedure and law, to lodge the claim himself. To the extent that it is contended by the Applicant he did not have the knowledge to lodge the application himself, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws is not an acceptable explanation weighing in favour of a finding that there are exceptional circumstances. In addition, the Applicant fails to address why he could not provide instruction to his lawyer by telephone (if isolating and unwell) instead of waiting to see his lawyer.

• [27] I do not accept that the matters relied upon by the Applicant provide an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. Whilst the period of the delay was five days, a relatively short period, as was observed in Ozsoy v Monstamac Industries Pty Ltd,[15] the fact that an application was lodged only one day late, or in this case five days late, is not the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.[16]

• [28] On balance, I find the reason for the delay is not an acceptable one. This weighs against a finding of there being exceptional circumstances. In arriving at this finding, I have considered the relevant period to be the period after the 21-day timeframe for lodging the application,[17] but have, in addition, considered the circumstances from the time of the dismissal.

• [29] Regarding whether the Applicant became aware of his dismissal after it had taken effect (see s 394(3)(b)), this is not in dispute. The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a finding of exceptional circumstances.

• [30] As to whether the Applicant took any action to dispute his dismissal (s 394(3)(c)), the evidence does not support a finding that this occurred, and hence this factor does not weigh toward a finding of exceptional circumstances.

• [31] In respect to prejudice, there is, in my view, no prejudice to the Respondent (s 394(3)(d)). However, the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.

• [32] Turning to the merits of the application (s 393(3)(e)), I also consider this factor neutral for the following reasons. In Telstra Network Technology Group v Kornicki,[18] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[19]

• [33] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[20]

• [34] As recognised by the Respondent, the Applicant's argument on the merits, appears to be that the Respondent's requirement for him to provide the requisite consent for participation in the fitness for work process was unreasonable and unlawful, and that he indicated this by his refusal to provide consent.

• [35] The merits of the Applicant's application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal, including whether the direction of the Respondent was a lawful and reasonable direction, if an extension of time were granted and the matter proceeded. However, if it were the case that the Applicant did not comply with the directions in question and those same directions were lawful and reasonable, the Applicant's conduct in this respect, would likely constitute a valid reason for dismissal. However, the consideration of whether a dismissal is unfair is not so limited to a valid reason, with the Commission obliged to consider all factors in s 387 of the Act. It is therefore not the case that the application is absent merit, but in all the circumstances, I consider this to be a neutral factor.

• [36] Further, it is not apparent that there are matters relevant to the question of fairness as between the Applicant and other persons (s 394(3)(f)). It follows that I again consider the factor neutral.

• [37] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [38] I have found that the Applicant has not provided a satisfactory explanation for the whole of the delay in making his application. The remaining factors I need to consider either do not weigh toward a finding of exceptional circumstances or are neutral. Having considered all submissions and evidence, on balance, I am unpersuaded there are exceptional circumstances.

• [39] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I therefore decline to grant an extension of time under s 394(3). The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act.

[1] PR785271.

[2] [2011] FWAFB 975, [13].

[4] [2018] FWCFB 901, [38] (emphasis in original) (Stogiannidis).

[5] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[6] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[8] Long v Keolis Downer [2018] FWCFB 4109, [40] (Long)

[9] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 [12].

[10] [2015] FWCFB 3435.

[12] [2014] FWC 4226.

[14] [2022] FWC 545 [13].

[15] [2014] FWC 479, [30].

[18] (1997) 140 IR 1.

[20] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

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