Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - calculation error - discretionary considerations - no exceptional circumstances - application dismissed

[1] On 19 February 2021 Michael Harvey (Mr Harvey) lodged an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment by Compass-Group (Australia) Pty Ltd (Compass Group or the Employer) which took effect on 28 January 2021.

[2] Mr Harvey' application was made twenty-two days after the dismissal took effect, being one day beyond the statutory time-limit. Mr Harvey provided the following explanation:[1]

"I read on the Fair Work Commission web site that the employee must make an unfair dismissal application to the Commission within 21 days of the dismissal taking effect. It was my understanding that the 21 days started the day after the dismissal. From this date 29 January 2021, I counted three whole weeks and came to the conclusion that the end of the 21 day duration landed on Friday 19 February 2021."

[3] The matter was allocated to me to determine whether an extension of time should be granted. This decision deals only with that issue.

[4] I issued Directions on 23 February 2021. Information about an extension of time and factors the Commission is required to take into account were provided to the parties.

[5] Mr Harvey and Compass Group filed materials in advance of the hearing.

[6] I heard the matter by telephone on 12 March 2021. Both parties were self-represented. Mr Harvey's legal practitioner attended as a support person and adviser or advocate if needed. I considered this a form of representation requiring permission[2]. Permission was then requested, not opposed, and granted.

[7] Mr Harvey gave sworn evidence on his witness statement.[3]

[8] There are no material factual disputes.

[9] Following the hearing I reserved my decision.

[10] Amongst other undertakings, Compass Group is contracted to provide services to mining operators and employs persons for those purposes. One such services contract is at a mine at McArthur River in north-eastern Northern Territory operated by McArthur River Mining, a subsidiary of the Glencore group (the Client).

[11] Mr Harvey lives in Adelaide, South Australia. He worked in various roles, under separate employment contracts, for the Compass Group since 5 March 2013.

[12] The subject of these proceedings concerns Mr Harvey's employment as Site Administrator at the McArthur River Mine. He was promoted to that role in 2019 and commenced work under an employment contract on 2 December 2019.[4]

[13] McArthur River Mining withdrew Mr Harvey's site access for alleged cause from 24 December 2020.

[14] Mr Harvey had a few days' notice of the Client's decision. He was spoken to on 21 December 2020, at which time he questioned the decision. He was flown back to Darwin on 22 December 2020. He discussed the situation with Compass Group on 23 December 2020, and sought an early indication about his employment status as he did not wish to be stranded in Darwin over Christmas.

[15] The following day, 24 December 2020, Compass Group gave Mr Harvey written notice of termination on account of his site access having been removed, with the termination to take effect on 28 January 2021.[5] Compass Group indicated that it would look for alternate employment for Mr Harvey during the five week notice period. The notice of termination provided:

RE: SITE ACCESS WITHDRAWN - TERMINATION OF EMPLOYMENT

We have been notified by the client that due to your recent actions and behaviour, your site access has been withdrawn and has exercised its discretion to withdraw your access to the McArthur River site, effective 24 December 2020.

Your current contract of employment is for work at the McArthur River site and as a result of the operational restrictions placed upon you and the withdrawal of your site access by the client, you are no longer able to fulfill your obligations in your contract of employment to attend site and perform your duties. This letter provides you with 5 week's formal notice that as a result of the withdrawal of site access, your employment with will be terminated with effect from 28 January 2021.

During the notice period, we will look for alternative employment for you at other ESS Remote operations in NT & SA and endeavor to relocate you to another position on another site, subject to the availability of positions for which you are qualified, able to fill and successfully pass site entry requirements. We will contact you to discuss a possible new position and continuation of your employment if a suitable vacancy is identified; however, should you choose not to undertake alternative work, it will severely limit the roles that Compass can relocate you to.

During your notice period you will be expected to complete any necessary site documents, induction or medical assessment requirements that are necessary to secure a new position. Note that a new position may result in different terms and conditions and will require you to sign a new contract of employment.

If we are unable to find you an alternative position during the notice period or you decline an offer, your employment with Compass Group will automatically terminate on 28 January 2021. Your final pay and accrued entitlements will be paid shortly thereafter. If you are part way through a recruitment process for a new role on 28 January 2021, your employment will still terminate on that date; however, the recruitment process will continue and if you are successful, you will be re-employed by Compass Group.

If you have any questions regarding the above, please contact me or Andrew Kemp, People Services Adviser on XXXX XXXX or at XXXXXXXXXXXXXXXXXX

[16] No alternate position was found by Compass Group or offered to Mr Harvey during the notice period. There being none offered, none was accepted nor declined.

[17] On 28 January 2021 the dismissal took effect.

[18] At the time of receiving the notice of termination, Mr Harvey held the view that his dismissal was harsh, particularly given his objection to the Client's decision, his age (59 years) and likely difficulty finding new employment.

[19] Mr Harvey knew at that time, based on his experience in industry, of the general right of dismissed employees to make unfair dismissal claims.

[20] However, having received the notice of termination, Mr Harvey decided that he would not raise with the Compass Group any further protest at the decision or the prospect of making an unfair dismissal claim because he feared this may prevent Compass Group seeking out alternate employment which the notice letter contemplated being investigated.

[21] Mr Harvey lodged an expression of interest for alternate employment with his Employer on 4 January 2021.

[22] Compass Group responded via phone and email messages left for Mr Harvey on 27 January 2021. Mr Harvey returned the call the following day (28 January) but did not hear back. His dismissal took effect that day.

[23] Mr Harvey remained hopeful that an offer of alternate employment may still be made even after his dismissal took effect, in light of he and Compass Group not having completed discussions.

[24] In this post dismissal period, Mr Harvey took a number of steps to advance his interests.

[25] Firstly, in the days that immediately followed 28 January 2021 he searched the Commission web site for specific information about his unfair dismissal rights. He read from the web site that such action needed to be taken within 21 days of his dismissal taking effect.

[26] Secondly, he immediately calculated out the 21 day period in order to ascertain what his last day for lodging a claim would be. He did this calculation himself, without the help of professional advice. Mr Harvey's calculation was as follows. Having read on the Commission web site that the 21 day period commenced the day following the dismissal taking effect (in his case, the day following being a Friday), Mr Harvey counted out three whole weeks and then determined that his last day for lodgement was the same day of the week (a Friday) that followed those three full weeks. That day was Friday 19 February 2021.

[27] Thirdly, he sought professional advice from a lawyer.

[28] Fourthly, he decided he would continue his communications with Compass Group on possible alternate employment but still not raise the prospect of making an unfair dismissal claim because he continued to fear this may prevent Compass Group finding him alternate employment. He also decided that if he was going to file a claim, he would do so on the last day of the 21 day period to not risk alternate employment being offered.

[29] Mr Harvey and an officer of the Compass Group spoke on 5 February 2021 and again on 8 February 2021 about the prospect of alternate employment. He understood that Compass Group were to follow up certain possibilities. He then left messages with the Compass Group on 10, 12, 15, 16 and 17 February 2021 but received no return calls.[6]

[30] After receiving no return call on 17 February 2021, Mr Harvey decided to press ahead with making an unfair dismissal claim.

[31] On 17 February 2021 he began completing his unfair dismissal application using the Commission form F2 that he sourced from the web site. He completed it on 18 February 2021 and dated it that date. He answered question 1.5 of the form by indicating that he was filing within 21 days.

[32] Having completed the form, and believing that he had a further day before needing to lodge it, he decided to sit on the application overnight and review it the next day.

[33] At midday (12 noon) on Friday 19 February 2021 he lodged the application via email.[7]

[34] Since lodging the application and being advised by the Commission of this extension of time hearing, Mr Harvey filed an outline of argument on a Commission form[8] in which he seeks an extension of time and sets out the grounds for doing so.

[35] Further, since lodging the application, Compass Group and Mr Harvey remain in discussion about alternate employment. Those discussions were extant at the time of the hearing of this matter.

[36] Section 394(3) of the FW Act provides:

(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."

[37] Mr Harvey's application can only proceed if he can establish that "exceptional circumstances" exist within the meaning of section 394(3).

[38] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[9]

[39] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[10] A decision whether to extend time under section 394(3) involves the exercise of a discretion.[11]

[40] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:

"[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."[12]

[41] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.

[42] I am well satisfied that Mr Harvey's unfair dismissal application is out of time and can only proceed if an extension of time is granted.

[43] The 21 day statutory period after Mr Harvey' dismissal took effect expired on 18 February 2021. That date is 21 calendar days after his dismissal took effect. As Mr Harvey's dismissal took effect on 28 January 2021, the first of those 21 days is 29 January 2021. Counting forward, the twenty-first of those days is 18 February 2021.

[44] The statutory requirement (section 394(2)(a)) is that an application "must" be made "within 21 days after the dismissal took effect" (emphasis added). What is required is lodgement "within" 21 days, not "after" 21 days or on the day after 21 days.

[45] Having filed his application on 19 February 2021, Mr Harvey's application is one day out of time.

[46] I now consider each of the factors in section 394(3).

[47] The reason for the delay in lodging an application is a factor that must be considered. The absence of an 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 an applicant's favour, though it is ultimately a question of degree and insight.[13]

[48] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[14]

[49] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.[15]

[50] Three reasons are advanced by Mr Harvey for the delay:

• he made a calculation error;

• he was stressed; and

• he was not wanting to compromise an offer of alternate employment.

[51] No doubt Mr Harvey made a calculation error. I take into account that he was a lay person making the calculation without recourse to professional advice. I recognise that it is not difficult for a lay person to miscalculate when applying their circumstances to legal language.

[52] However, a number of factors weigh against this being a weighty consideration.

[53] Firstly, the miscalculation was the result of what Mr Harvey described as an "assumption" on his part that the day of the week the twenty-first day would fall would be the same weekday (a Friday) that his dismissal had taken effect. Had he counted out twenty one days rather than blocks of weeks he may not have made the miscalculation.

[54] Secondly, the miscalculation was not a spur of the moment or last minute calculation. Mr Harvey made the calculation early in the 21 day period for filing, and did not revisit his assumption.

[55] Thirdly, in this period Mr Harvey had access to legal advice yet did not recalculate.

[56] Fourthly, Mr Harvey was not misled by the Commission web site, which refers to a requirement to file "within 21 days of the dismissal taking effect"; the same language as the FW Act.

[57] Moreover, it is well established that mere ignorance of the statutory time limit does not constitute exceptional circumstances warranting an extension of time.[16] This can be so even where an employee makes a miscalculation of a very small period.[17]

[58] Even though the calculation error was made by Mr Harvey in good faith and provides an explanation for the delay, it is not a particularly convincing explanation in the context of considering whether exceptional circumstances exist.

[59] Mr Harvey says that he was under a lot of stress "particularly regarding the reason for my dismissal".[18]

[60] In cross examination Mr Harvey's evidence was that whilst he was under stress, the level of stress was not uniform over the period. He said that in the immediate aftermath of the notice of termination he was highly stressed, but that his stress receded somewhat as the possibility of redeployment arose.[19]

[61] I accept that Mr Harvey was under some degree of stress even in the delay period and in the period when he made the miscalculation. However, it is not unusual for a dismissed employee to be under stress in a period post-dismissal. Of itself, this is not an exceptional circumstance.[20]

[62] Moreover, no medical or expert evidence was led by Mr Harvey of how his stress may have contributed to his cognitive thinking or his miscalculation. At best, the stress provides an explanation for the miscalculation and perhaps an explanation for part of the delay but does not provide an explanation for Mr Harvey's action to delay filing the application until the last day that he had calculated.[21]

[63] That Mr Harvey was experiencing stress is not a particularly convincing explanation in the context of considering whether exceptional circumstances exist.

[64] Mr Harvey's evidence was that he "did not want to upset the employer or deter them from offering other forms of employment due to an unfair dismissal application".[22] Elsewhere, he put it this way:[23]

"As to not prejudice my alternative employment options with the employer I abstained from lodging an Unfair Dismissal application until the last day of the 21-day timeframe."

[65] This provides insight into the reason for the delay. Early in the 21 day period Mr Harvey was inclined to make an unfair dismissal application but resolved not to do so if alternate employment was found and would not do so until the last day to give himself the greatest possible chance of alternate employment being offered.

[66] Given his age, it is understandable that Mr Harvey would want to give himself the best chance of securing alternate employment via the searches he believed Compass Group was making on his behalf.

[67] I give some weight to this factor, but diminishing that weight are a number of other considerations.

[68] Firstly, it was a conscious choice on Mr Harvey's part to wait until (what he thought was) the last day; to cut it as fine a possible and leave no margin for error.

[69] Secondly, to the extent Mr Harvey ultimately had to weigh the risk of securing alternate employment being soured by an unfair dismissal claim, he ultimately did file a claim. The claim he filed on 19 February 2021 was in the same terms as that which he drafted in the days prior. Moreover, in the period since filing the claim he remained in communication with Compass Group on redeployment options.

[70] Thirdly, while Compass Group was slow to respond to his messages and in many instances unresponsive, it remained entirely within Mr Harvey's decision-making authority to make a claim and decide when within the 21 day period he would do so. Not having told Compass Group that he was thinking of making an unfair dismissal claim, he was not dissuaded by the Employer from doing so. Nor did Compass Group mislead him about the alternate employment situation. The Notice of Termination made clear that alternate employment would be looked for but that in the absence of an alternate being offered and accepted, the dismissal would take effect on the stipulated date.

[71] Fourthly, it ultimately was not the search for alternate employment that prevented the application being filed on or before 18 February 2021. It was a combination of Mr Harvey's miscalculation and his decision on 18 February 2021 to sleep on his drafted application until the following day.

[72] For these reasons, Mr Harvey's desire to not wish to impair the pre and post dismissal dialogue about alternate employment, in the context of the need to establish exceptional circumstances, in part explains the delay but is not a particularly convincing explanation.

[73] Considered overall, the explanations for the delay, taken individually and collectively, do not weigh in favour of a conclusion of exceptional circumstances.

Awareness of the dismissal taking effect (section 394(3)(b))

[74] Mr Harvey was aware from 24 December 2020 that his employment would terminate on 28 January 2021 unless alternate employment was found and accepted. As by 28 January 2021 Mr Harvey had not received an offer of alternate employment, he knew that his employment would terminate that day on the terms of the 24 December 2020 letter.

[75] Mr Harvey was also in no doubt as to the stated reason for dismissal - his site access had been withdrawn by the Client.

[76] That he was well aware of the dismissal taking effect before and at the time of termination is a neutral consideration and does not weigh in favour of an extension of time.

Action taken to dispute dismissal (section 394(3)(c))

[77] Mr Harvey disagreed with the decision by the Client and questioned that decision prior to receiving the Notice of Termination. He has a sense of grievance and belief that his dismissal was harsh from the time of the notice, five weeks prior to his dismissal taking effect.

[78] I take into account the fact that Mr Harvey remained in dialogue with Compass Group about alternate employment and did not wish to sour relations further by flagging an unfair dismissal claim.

[79] In combination these considerations tend to counter-balance each other and are neutral in impact in considering whether exceptional circumstances exist.

[80] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[24]

[81] Compass Group submit that it would incur prejudice including by having to defend a late claim and by future uncertainty as to how the statutory time limit would be applied.

[82] I do not accept this submission.

[83] A claim would have to be responded to, involving time and cost. However, the nature of the prejudice in this matter is not unique in any particular respect. Compass Group have the capacity to manage and defend litigation of this type. The one day delay creates no material prejudice.

[84] There is no prejudice simply by virtue of perceived uncertainty caused by the statutory rule of exceptional circumstances requiring case-by-case consideration. The proper application of a statutory rule cannot be a basis for asserting prejudice, real or imagined.

[85] However, the absence of prejudice would not itself be a reason to grant an extension.[25]

[86] This is a neutral consideration.

[87] A hearing on merit will necessarily concern whether Compass Group acted fairly in deciding to dismiss once it was advised by the Client that Mr Harvey's site access to McArthur River was withdrawn.

[88] This in part may involve considerations of the reasons for the site access being withdrawn, the rights and obligations of Compass Group vis-a-vis the Client, the employment contract between Mr Harvey and Compass Group and the steps Compass Group took or undertook to take to find alternate employment.

[89] I have not conducted a merits hearing and none of these issues have been canvassed in any detail. It is not possible to form a view, even a provisional or preliminary view, as to whether the merits of Mr Harvey's case are strong or weak.

[90] In the circumstances, this is a neutral consideration.

Fairness between persons in similar position (section 394(f))

[91] No evidence or submissions from Mr Harvey or Compass Group raise issues of fairness with and between other persons.

[92] In these circumstances, this is not a relevant factor.

[93] One factor weighs in Mr Harvey's favour - that the delay period is very short, one day.

[94] However, that factor alone cannot constitute exceptional circumstances. The statute requires all relevant circumstances to be considered. It is not premised on the proposition that a short or very short period of delay necessarily warrants an extension of time. Indeed, to do so would be to subvert the statutory intention that the period for lodgement is 21 days and not more, save for exceptional circumstances.

[95] No circumstances weigh clearly in favour of a conclusion of exceptional circumstances, individually or in combination.

[96] Considered overall, I am not satisfied that exceptional circumstances exist. As recently noted by a full bench of the Commission, that bar is high, and late filing should not be encouraged.[26] Whilst Mr Harvey made a genuine miscalculation and whilst his decision to wait until the last day before filing was for an understandable (though not compelling) reason, the late filing was a combination of his choice (to wait until 19 February 2021) and his error (the miscalculation). The observations of Deputy President Gostencnik in Shaw v Australia and New Zealand Banking Group Limited are apposite:[27]

"...a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation."

[97] There being no exceptional circumstances, the time for lodging the claim cannot be extended.

[98] As Mr Harvey' application is out of time and as the time for lodgement has not been extended, it is unable to proceed further. The application is dismissed. An order[28] to that effect is issued in conjunction with the publication of this decision.

M. Harvey, the Applicant, with C. Saunders, with permission

A. Chamberlain, for Compass-Group (Australia) Pty Ltd

[2] See Fitzgerald v Woolworths Limited [2017] FWCFB 2797 at [45] and [54]

[9] Smith v Canning Division of General Practice [2009] AIRC 959

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

[11] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

[12] [2011] FWAFB 975 "Nulty" at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]

[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288 at [35]- [45]

[14] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288

[15] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

[16] Nulty above fn 11, at [14], as quoted with approval in Dennis Obel v Central Desert Regional Council [2021] FWCFB 167 at [6]

[17] Shaw v Australia and New Zealand Banking Group Limited t/as ANZ Bank [2015] FWCFB 287; see also Summers v Flight Attendants Association of Australia National Division [2018] FWCFB 5698 at [24]; Howard v Autosports Group Limited [2021] FWC 711 at [13]

[19] Audio 12.03.2021 at 1 hour 04 minutes

[20] Shaw above fn 17, at [12]; Australian Postal Corporation v Zhang [2015] FWCFB 5285 at [45]

[21] In this respect, a parallel situation arose in Shaw v Australia and New Zealand Banking Group Limited t/as ANZ Bank [2014] FWC 3903 at [26]

[24] Brisbane South Regional Health Authority v Taylor [1996] HCA 25

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

[26] Skinner v The Hospitals Contribution Fund of Australia Ltd t/a HCF [2020] FWCFB 6882 at [38]

[27] [2014] FWC 3903 at [28]

[28] PR727755

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