Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - request for an extension of time - application granted.

• [1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]

[2] This decision concerns whether I should exercise my discretion to allow Mr Ananta Kumar Ghising (the Applicant) a further period for his unfair dismissal application (Application) to be made against Nurse Aid Australia (the Respondent).

[3] On 29 March 2023, Mr Ghising lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with the Respondent, which his form F2 unfair dismissal application advised took effect on 1 March 2023.

[4] The application recognised that it was made beyond 21 days from the date of dismissal.

[5] On 11 April 2023, I issued directions and advised that the extension of time issue would be considered at a telephone hearing on 1 May 2023. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties.

[6] On 18 April 2023, Respondent lodged a form F3 Employer Response which indicated that the dismissal occurred on 1 March 2023 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.

[7] A hearing was conducted by way of telephone conference on 1 May 2023. A sound file record of the telephone conference was kept.

[8] Mr Ghising was represented by Mr Craig (of Counsel), permission having been granted pursuant to s.596 of the Act. The Respondent was represented by Ms Gurung (Managing Director). In order to ameliorate the impact of representation the hearing was conducted as a Determinative Conference.

[9] A digital court book was compiled from the material that was filed by both parties and was distributed to the parties prior to the hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).

[10] Mr Ghising gave evidence at the hearing; his position is summarised as follows:

• He is unfamiliar with employment law and speaks little English. His evidence was received with the assistance of an interpreter.

• He was married to the Respondent's Managing Director, Ms Gurung. Problems in the marital relationship became evident in January/February 2023. There are two young children from the marriage.

• On 20 February 2023, the locks to the marital residence where changed. As a result, Mr Ghising became homeless.

• On 1 March 2023, Mr Ghising received a letter from Ms Gurung advising him of his dismissal.

• On 15 March 2023, Ms Gurung sought an Order from the Family Court preventing him from seeing his children or contacting Ms Gurung. As a result, Mr Ghising was unable to access his employment records.

• Mr Ghising firstly sought assistance with his family law issues. His Family lawyer then referred him to Mr Craig with respect to the employment law issue.

• The first appointment available for Mr Craig was on 29 March 2023.

• Mr Ghising lodged his application hours after his meeting with Mr Craig.

• Mr Ghising contends that the combination of the above factors explains the delays and that I should exercise my discretion to extend the time.

[11] The facts were not disputed by the Respondent.

[12] Other than filing the Form F3 Employer Response, no submissions were made by the Respondent.

[13] 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."

• [14] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[3]

• [15] 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[4] 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).

[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."

[16] There is no dispute that the dismissal occurred on 1 March 2023. The application was filed 7 days late.

• [17] 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. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.[5]

• [18] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[6]

"[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.

[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."

[19] The undisputed facts detailed above identify a range of factors which, when added together, combine to provide a creditable reason for the delay. This factor weighs in favour of the granting an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[20] Mr Ghising was aware of the dismissal on the date it occurred.

[21] This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

• [22] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[7]

[23] There was no other action taken to dispute the dismissal other than the filing of the application.

[24] This factor is a consideration against the granting of an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

• [25] 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]

• [26] 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]

[27] There is no submission that the granting of an extension of time represents prejudice to the Respondent.

Paragraph 394(3)(e) - merits of the application

[28] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

• [29] 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."

[30] 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.

[31] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.

• [32] An Order[12] reflecting this decision will be issued.

Mr Craig (of counsel) on behalf of the Applicant.

[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6 - where a period of time 'is expressed to begin after a specified day' the period 'does not include that day')

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

[4] [2011] FWAFB 975

[5] 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]

[6] [2018] FWCFB 3288 at [35]- [45]

[7] 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] PR761511.

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