[1] On 5 January 2012, Mr David Mikhail (the 'applicant') filed an application, pursuant to s 394 of the Fair Work Act 2009 (the 'Act') seeking an unfair dismissal remedy following his dismissal by Ingram Micro Pty Ltd t/a Ingram Micro (the 'respondent') on 20 December, 2011. As will be readily apparent, the application was filed 2 days outside the 14 day statutory time limitation as required by s 394(2) of the Act (see Acts Interpretation Act 1901, s 36).

[2] Subsequently, the applicant has requested that Fair Work Australia (FWA) exercise its discretion under s 394(3) of the Act by extending the time for the filing of his application by 2 days so as to allow his claim to proceed to a merits hearing.

[3] In a short submission, dated 6 March 2012, the applicant explained his reasons for not filing his application within time as follows:

'The application for unfair dismissal...was submitted 1 day late due to the inability to seek legal advice during the festive season.

My legal advisor was closed during this season as were most legal firms and I managed to seek advice just the day before submission.

FWA has charged me for the submission therefore I understand it has been accepted'.

[4] At this juncture it is necessary to set out the statutory framework under which FWA is empowered to consider 'out of time' unfair dismissal applications. This is set out at s 394(3) of the Act as follows:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

The essential element of the statutory instruction is for the Tribunal to be satisfied that 'exceptional circumstances' exist which would favour an extension of time being granted. I shall come back to the now well established authorities on the meaning of 'exceptional circumstances' in this context.

[5] The applicant did not address the statutory criteria in s 394(3) in any meaningful or detailed way. From the above written submission, his F2 application and subsequent oral submissions at the hearing, it may be concluded that the reasons for delay in filing his application were that:

(a) he was unable to obtain legal advice over the Christmas / New Year period as his, and most legal firms, were closed;

(c) he did not seek legal advice in the three business days before Christmas, because he was initially 'a bit down' and only started to rationally think about it after 7 days; and

(d) he had been advised by FWA that as long as he had a reasonable excuse why he was one day late that would be 'okay'.

[6] As to the other criteria in s 394(3) of the Act, the applicant made no submissions in respect to ss (b)(c)(d) and (f); although I do not apprehend there to be any dispute as to the applicant being first aware of his dismissal on the day it took effect - 20 December 2011. In respect to the merits of his application, the applicant was dismissed after receiving two written warnings (22 September 2011 and 15 November 2011) concerning punctuality and attendance and a view formed by the respondent that he had been less than truthful in discussions regarding the reasons for his absences. The applicant said that he was suffering from an illness which caused him to be sick in the morning and late for work; albeit by only about 5 minutes, on a few occasions. He claimed to have medical certificates to support his position.

[7] Mr G Oliver, Solicitor for the respondent, submitted that the applicant bears the onus of satisfying the Tribunal of 'exceptional circumstances' as to why his application should be accepted out of time (Van Langerrad v D & D Traffic Management Pty Ltd [2011] FWA 7720 at [22]). He put that the applicant had not met this evidentiary burden having filed no statements or other evidence in support of his claim.

[8] Specifically, Mr Oliver said that the applicant offered no evidence to support his assertion that his legal advisor was unavailable over the Christmas / New Year period or why he still waited another day before filing his claim after he received advice on 4 January 2012. Mr Oliver noted that the applicant would have had easy access to the FWA website. He said that the applicant had not disputed the fact he had received two written warnings and, despite several opportunities to do so, had failed to respond to the respondent's concerns about his punctuality.

[9] During the proceedings, I provided the parties with a copy of a decision of His Honour, Richards SDP, in Smith v KJM Contractors Pty Ltd [2010] FWA 5515 ('Smith') concerning the Christmas / New Year period and its affect on the filing of unfair dismissal claims 'out of time'. I adjourned the hearing to allow the parties - but particularly the applicant - to consider the following findings of His Honour at paras [17] - [20]:

'Despite the fact that difficulties may arise in relation to the Christmas period, the Christmas public holidays are a known event on the calendar. They do not represent an unforeseen or an unexpected event, in so far as they posed an unanticipated obstacle to the lodgement of an application. They are predictable and known events on the calendar, much as any other holiday period, in fact if not more notorious than that.

The Fair Work Act 2009 makes no provision for offsetting the 14 day period within which an application must be made for weekends or public holidays. That is, the Fair Work Act requires an application to be made within 14 calendar days, and the calendar days are counted regardless of the day of the week on which they fall, be it a Saturday, a Sunday, a public holiday, at Easter, on an Anzac Day, at Christmas and so on.

The Fair Work Act does not discriminate in relation to any of those days in so far as it requires 14 days within which to make an application. Applicants face a requirement therefore to make an application within 14 days regardless of where public holidays and weekends [might] fall, and this includes the Easter period as well.

It appears to me that the Fair Work Act 2009 places an obligation on employees to make an application aware of, or being cognisant of, the 14 day calendar period, irrespective of intervening public holidays or weekends, which may of course affect access to professional advice, as well as generating other circumstances'.

[10] Upon resumption of the proceedings, the applicant made the obvious distinction between his circumstances and that in Smith, where the applicant had filed his unfair dismissal claim 8 days late. He then made the following extraordinary admission:

'In my case, I was one day late. I didn't have a chance to speak to a solicitor. Although my case is - you know, it's not exceptional circumstances. I still believe, you know, one day late is - it is late. You know, I plead for leniency towards a decision, but I was late'. (my emphasis).

[11] The respondent also drew my attention to Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251; although the applicant in that case relied on other factors as reasons for the delay in filing the application.

As mentioned at the outset of this decision, a considerable body of authority has now been developed within FWA as to the meaning of 'exceptional circumstances' in the statutory context of s 394(3) of the Act. A Full Bench of FWA in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 summarised the meaning of the expression in the following way; albeit under the Act's General Protection provisions:

'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'.

See also Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers [2010] FWAFB 7251 and Daniel Prowse v Rivalea (Australia) Pty Ltd [2011] FWA 8497.

[12] The principle reason advanced by the applicant for his delay in filing this application was his inability to obtain legal advice over the Christmas / New Year period. Putting aside that he provided no evidence to substantiate this assertion, I respectfully agree with Richards SDP that the Christmas / New Year period is hardly an unforeseen event. When viewed in this light, I cannot accept that this reason constitutes 'exceptional circumstances' justifying an extension of time for filing of this claim.

[13] In any event, the applicant's own assertion is not assisted by the fact that even if his legal advisor was closed, and many law firms were also closed over the Christmas / New Year period, there remains at least 4 days prior to, and 2 days after the Christmas / New Year period, where he took no action to file his unfair dismissal claim. While I accept he felt a 'bit down' shortly after his dismissal, this would not be an uncommon experience for most dismissed employees, and as such could not, on its own, be considered to be 'exceptional'. Indeed, on one view, in the immediate aftermath of dismissal, an employee would ordinarily be very much focused on what legal remedies were available in circumstances where the dismissal is vigorously contested by the employee.

[14] Set against all of this, however, is the applicant's own admission and pleading as set out in para [10] above. If the applicant himself does not believe his circumstances to be exceptional, it is little wonder that I cannot be satisfied that his claim should be accepted. Unfortunately, a plea for leniency (as attractive as that may be from time to time) is not one of the factors available for consideration by FWA under s 394(3) of the Act.

[15] In addition, the applicant put that he had been told by FWA that so long as he had a reasonable excuse for a one day delay, that would 'be okay'. While I very much doubt such advice was proffered by anyone in the FWA call centre, the fact was that it was too late in any event and the statutory test is not one of reasonableness, but one of 'exceptional circumstances'.

[16] I have also taken into account all of the other relevant considerations under s 394 of the Act. Subsection (b) is not in dispute (see para [6] above). The applicant took no action to dispute his dismissal until seeking legal advice on 4 January 2012 (one day after the 14 day time period for filing) (ss (c)). Any prejudice to the employer (ss (d)), save for the usual cost and time involved in defending a claim, is a neutral factor in this case.

[17] As to the merits of the application, there is no denying the applicant was twice warned in writing as to lack of punctuality and the respondent raised serious trust issues in respect to the applicant's truthfulness during discussions about his punctuality. I observe that there does not seem to be any dispute as to the process leading to the applicant's dismissal. Indeed, he did not dispute that the respondent provided him with several opportunities to explain his conduct, and he failed to do so. Given these circumstances, and while obviously having no concluded view as to the merits of his claim, it would at least be a prima facie finding that the applicant's prospects of success are not strong.

[18] In addition, I have often commented that accessing the FWA website, downloading, completing and filing an F2 is not "rocket science". The Full Bench in Du v University of Ballarat [2011] FWAFB 5225 at para [31] noted that:

'In respect of Dr Du's reasons for the delay in making his unfair dismissal remedy application, we consider that it is not out of the ordinary course, unusual, special or uncommon 12 for employees whose employment has ceased to not be aware of the law and to be unable to pay for advice or afford legal costs. Moreover, free advice is available from a number of sources, including the FWA website, about the grounds for an unfair dismissal remedy application and about making such an application to FWA by completing the appropriate form and paying the filing fee or obtaining a waiver of the filing fee. We are not persuaded information was not available from FWA before December 2010 about the legislative changes concerning unfair dismissal which commenced on 1 July 2009'.

[19] For all the abovementioned reasons, I am not satisfied that the applicant has established 'exceptional circumstances' which would warrant the exercise of my discretion to extend the time for filing of this unfair dismissal application to 5 January 2012, pursuant to s 394(2)(b) of the Act.

[20] The application can only be dismissed and an order to that effect will be published contemporaneously with this decision.

Respondent: Mr C Oliver, Solicitor, for the respondent

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