Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application filed out of time -circumstances exceptional - extension of time for filing allowed

• [1] Ms Marie Koulemou (the Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with her employer, who she described on her application as being Bellevue Court Residential Care = Southern Cross Care (the Respondent).

• [2] The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time.

• [3] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

• [4] Section 394(2) of the Act provides that such an application must be made:

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

(b) within such further period as the Commission allows.

• [5] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.

• [6] Directions were issued for the filing of material and a Hearing was conducted on 2 November 2021. The Applicant filed a wealth of material, most of which went to the merits of the case. The Respondent did not file any further material (other than the Form F3 Employer Response which was filed previously).

• [7] The Applicant was represented by her friend Ms Amber Newton. The Respondent was represented by Mr Steve Brooks.

• [8] Mr Brooks advised that the Respondent's correct name was Southern Cross Care (SA, NT and VIC) Inc. The Applicant sought to amend her application to reflect the correct name and the Respondent agreed to the variation.

• [9] The Applicant gave evidence on her own behalf. She advised that:

• She advised the Respondent that she would challenge the dismissal in her correspondence with the Respondent;

• She completed the Form F2 Application on 5 October 2021;

• The application was posted by Express Post at the Elizabeth Vale Post Office on 6 October 2021; and

• Whilst she understood there were delays due to COVID-19, she expected that the application would arrive at the Commission in the Adelaide CBD before the time limit expired.

• [10] The Respondent did not contest this evidence

• [11] Ms Newton also gave evidence in support of the process of posting the application which was consistent with that given by the Applicant.

• [12] The Respondent did not lead any evidence. The Respondent relied on its submissions filed as part of its Form F3 Employer Response.

• [13] It is not in dispute, and I so find, that the dismissal took effect on 21 September 2021.

• [14] It is not disputed that the application was sent by the Applicant (by Express Post), on 6 October 2021, and received by the Adelaide Registry of the Fair Work Commission on 13 October 2021.

Was the Application made within 21 days after the dismissal took effect?

• [15] As the Full Bench has stated in relation to a general protections application but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

• [16] As I found above, the dismissal took effect on 21 September 2021. The final day of the 21 day period was therefore midnight on 12 October 2021. This application was made one day late and therefore, can only be pursued if this time limit is extended.

• [17] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are "exceptional circumstances", taking into account the following six criteria:

(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."

• [18] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[2]

• [19] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench Decision in Nulty v Blue Star Group Pty Ltd[3] which stated:

"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services."

[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."

• [20] Each of the matters under s.394(3) must be considered in assessing whether there are exceptional circumstances.[4]

• [21] I set out my consideration of each matter below.

• [22] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 12 October 2021. The delay is the period commencing immediately after that time until 13 October 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay.[5]

• [23] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]

• [24] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[7]

• [25] The Applicant submitted that the delay was for the following reason:

• The Applicant sent the application on 6 October 2021 by Express Post through Australia Post.

• The Applicant was told at the Post Office that whilst Express Post generally takes approximately 24 hours to be delivered, as a result of the COVID-19 pandemic, the Express Post system had been experiencing delays.

• The Applicant was of the opinion that such a delay may be 2-3 days, which would still leave the application to be lodged within time.

• The Applicant submitted that a period of 7 days for an Express Post delivery was not something that could have been reasonably expected.

• [26] In relation to the reason for the delay, the Respondent submitted that the Applicant should have anticipated an unquantified delay and made the choice to lodge her application by post, despite being advised that there were delays, rather than using a more reliable form of lodgment such as by email or in person. On this point the Applicant submitted she did not lodge by email as she believed that the file size (including the numerous attachments submitted) would be too large to be transmitted.

• [27] Having regard to the evidence, I find that the reason for the delay was the longer than expected delay between the application being sent by Express Post and the application being lodged in the Commission. The Fair Work Commission Rules 2013 (the Rules) allow for the lodgment of an unfair dismissal application by post, and the fact that the Applicant chose this means of lodgment should not disadvantage her in her application. It is a reasonable assumption, even in spite of the known delays, to expect an Express Post delivery to occur before 7 days. This factor weighs in favour of the granting of an extension of time.

Did the Applicant first become aware of the dismissal after it had taken effect?

• [28] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect

What action was taken by the Applicant to dispute the dismissal?

• [29] It is not in dispute, that the Applicant advised the Respondent that she would contest the dismissal on or about 1 October 2021.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [30] Prejudice to the employer will weigh against granting an extension of time.[8] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[9]

• [31] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[10]

• [32] There was no submission by the Respondent that it would suffer prejudice if an extension of time were to be granted.

• [33] There is a contest as to the merits, and there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

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

• [34] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[11] considered this criterion and said:

"[41] 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."

• [35] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [36] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a) the reason for the delay, being the extended delay in the Express Post delivery of the application;

(b) the Applicant being aware of the dismissal at the time that it took effect;

(c) action being taken by the Applicant to dispute the dismissal prior to making the application;

(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and

(f) no issue of fairness arising as between the Applicant and other persons in a similar position.

• [37] In my view, it was reasonable for the Applicant to expect that an application sent by Express Post on the 6 October 2021 would be received by the Commission by 12 October 2021. The Applicant should not be prejudiced by the decision to use a method of lodgment that is considered by the Rules_,_ despite the fact it may be inherently less reliable than other forms of lodgment. The Applicant explained why she did not reply on email. The Applicant advised the Respondent that she would contest the dismissal prior to the lodgment of the application. There is no prejudice to the Respondent given that the application was only lodged one day out of time, and I am not persuaded that the merits, or otherwise, is a necessary consideration in this case.

• [38] Having regard to all of the matters at s.394(3) of the Act, I am satisfied that there are exceptional circumstances.

• [39] Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

• [40] Having regard to those exceptional circumstances and the object stated at s.381(2) of the Act to ensure that a "fair go all round" is accorded, the Commission is satisfied that it is appropriate to extend the period for the application to be made to 13 October 2021. An Order[12] reflecting this Decision will be issued concurrently.

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

[3] [2011] FWAFB 975

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[5] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

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

[10] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

[11] [2016] FWCFB 6963

[12] PR735378.

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