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[2020] FWC 1737
General information, not legal advice.
Fair Work Commission
2020-05-15
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - Further period in which to make application sought - Section 394(3) - Consideration of whether there are exceptional circumstances - Commission not satisfied that there were exceptional circumstances taking into account matters in s. 394(3) - Grant of further period refused
[1] Mr Daniel Martin (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Kancee Pty Ltd t/a GT Air (the Respondent). The Form F2 Application for an unfair dismissal remedy filed by the Applicant and the Form F3 Employer Response to an unfair dismissal application filed by the Respondent, state that the Applicant was notified of his dismissal 19 November 2019 and that it took effect on that date.
[2] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as allowed by the Fair Work Commission (the Commission) under s. 394(3). To meet the time requirement in s. 294(2) of the Act the Applicant was required to make his application by 10 December 2019. The Applicant lodged his application on 11 December 2019 - one day outside the prescribed period.
[3] The Respondent objects to the application on the basis that it was made outside the time required in s. 394(2) and further asserts that the dismissal was consistent with the Small Business Fair Dismissal Code. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.
[4] When the matter did not resolve through conciliation before a Fair Work Commission Conciliator, correspondence was sent to the Applicant from the Chambers of Vice President Catanzariti informing the Applicant that his application had been lodged one day late and requesting that he provide any additional information to that contained in his application in relation to why a further period should be granted and setting out the matters in s. 394(3) that the Applicant would be required to address in order to be granted a further period.
[5] When no response was received from the Applicant further correspondence was sent to him including another copy of the letter setting out the provisions in s. 394(3) of the Act that he would be required to address in order to be granted a further period to make his application. The Applicant responded advising that he had already sent through everything he had in relation to the matter and seeking clarification about what was required of him. The matter allocated to me to determine whether a further period should be granted.
[6] Given the lack of information contained in the Form F2 Application in relation to the reasons for the delay in filing the Application and the lack of information from the Applicant in response to correspondence from the Commission, I listed the matter for hearing and issued Directions requiring the Applicant to file material addressing each of the matters in s. 394(3). Those matters were set out in the Directions.
[7] In response to the Directions, the Applicant filed a material which did not address the matters in s. 394(3) of the Act. A hearing was conducted and the Applicant was given an opportunity to provide oral evidence about those matters.
The approach to considering whether a further period should be allowed under s. 394(3)
[8] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3). Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:
"(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."
[9] The approach to deciding whether there are "exceptional circumstances" in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:
out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.[1]
[10] 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.[2] I turn now to consider each of the matters in s. 394(3).
[11] In his Form F2 Application for an unfair dismissal remedy, the Applicant indicated that he was not making his application within 21 calendar days of his dismissal taking effect. In response to question 1.5 on the Form which asks for an explanation of the reason for the delay, the Applicant states:
"I filled out what I thought was unfair dismissal form online but found out I had filled in the incorrect form."
[12] On 13 March 2020 the Applicant provided a statutory declaration to the Commission in response to the Directions issued for the hearing stating:
"In relation to the mistake being made about filling in the wrong forms on the 19th November 2019 you can clearly see that our intentions were to start proceedings straight away for unfair dismissal as I wasted no time with my intentions. All the forms that were filled out gave me no real indication that this was the wrong procedure as it asked for all the information that I thought was needed moving forward.
It was only when I along with my mother for support met with the legal aid solicitor at the Fair Work Office in Brisbane on 11th December 2019 that we were asked for the Fair Work Case number as she did not have it. I gave her a number that we had, for her than to inform me that we had filled in the incorrect forms so we did this while we were there in the Fair Work office. Clearly this was not intentional as mentioned that I had already shown my intentions of wanting to move forward with the unfair dismissal claim straight after being unfairly dismissed from employment at GT Air.
The front office employee person at Fair Work looked into this matter further and had informed me that they could see where I had gone wrong and accepted the appropriate forms even though this was 1 day over the 21 days.
This Fair Work employee also seen our concerns with this incident of filling out the wrong forms and said everything would be fine on Fair Works end.
In closing regardless of the incorrect forms being submitted or filled out there is still the case of injustice being done here.
I thank you for your consideration in this matter."
[13] At the hearing into whether the Applicant should be granted a further period in which to make his application the Applicant did not provide any documentary evidence about the steps he took to file an unfair dismissal application (or the form that he claims to have believed was an unfair dismissal application) or the time at which the steps were taken. It was unclear from the Applicant's evidence what forms he actually lodged with the Commission or when and how he lodged the forms.
[14] When I questioned the Applicant about these matters, it was apparent that the forms he filled out were forms requesting assistance from the Workplace Advice Service. The Commission's webpage contains comprehensive information for parties who wish to seek legal advice, including legal services which may be able to offer assistance. Following a link on the Commission's webpage entitled "Where to get legal advice" displays a page that contains information on seeking legal advice through a service called the Workplace Advice Service as well as how to seek advice through other organisations.
[15] The Workplace Advice Service is a free legal assistance program facilitated by the Fair Work Commission providing advice to employees and some employers. The Service currently offers advice about unfair dismissal, general protections and workplace bullying. It is a Service offered by the Commission on the basis that the provision of legal advice to parties who seek it, can reduce complexity and confusion, improve access to justice and minimise costs. There are currently eligibility requirements a party must meet to qualify for free legal advice through the Workplace Advice Service.
[16] Following a link about the Workplace Advice Service enables a person to check their eligibility for assistance and to fill in the Workplace Advice Service request form online, by clicking a button that states "Check eligibility and make a request." Directly below this is the following information:
[17] When a person making an inquiry follows the link to check eligibility and to lodge a request for assistance with the Workplace Advice Service, the person is asked whether they want to make a request for legal advice or to lodge an application with the Fair Work Commission.
[18] Repeated below this question is the information that using the Service is entirely separate from making a formal application to the Commission. There is also a warning that there is currently a high demand for the Workplace Advice Service, and a reply to a request for help could take five business days, and that it will be longer again before an appointment can be made, if the person making the inquiry is accepted.
[19] If the person selects the option indicating that he or she wishes to lodge a formal application to the Commission, the following information is clearly displayed;
"The Workplace Advice Service can only help with questions about dismissal, general protections and workplace bullying.
To make a formal application for the Commission to deal with your issue, please visit the unfair dismissal, general protections or workplace bullying section of our website.
There is a 21 day time limit for lodging unfair dismissal applications and general protections dismissal applications. We count the 21 days from the date your dismissal took effect. It is very important that you get your application in before the deadline. It is easier to add more information to your application after you've lodged it than it is to lodge a late application.
If you are looking for legal advice about other issues please see Where to get legal advice, or contact the Commission on 1300 799 675."
[20] The above information also contains hyperlinks to the sections on the Commission's webpage in relation to unfair dismissal, general protections or workplace bullying. If the person clicks the link indicating that he or she seeks advice, then the person is required to complete an eligibility quiz. Once the person selects their state of residence and that their enquiry relates to dismissal, the quiz commences with the following:
[21] The person completing the quiz is also asked:
[22] After completing the quiz, the person is asked whether or not an application has been lodged with the Fair Work Commission.
[23] The Applicant provided no evidence to the Commission about what steps he took complete the form he alleges he filed and when he took those steps. The Applicant's evidence is that when he attended a meeting with the Workplace Advice Service on 11 December 2019, he discovered that he had completed the forms requesting assistance from the Workplace Advice Service rather than an unfair dismissal application. The Applicant also contended that he completed the forms on his mobile telephone which added to his difficulty in understanding the nature of those forms.
Consideration as to whether a further period be granted for making the application
[24] The reasons for the delay given by the Applicant are that he completed the wrong form being a form seeking assistance from the Workplace Advice Service. The Applicant also states that he did not discover this error until 11 December 2019 when he attended the meeting he had requested with the Workplace Advice Service.
[25] There is insufficient evidence before me to establish that the Applicant reasonably believed that the form he filed with the Fair Work Commission was an unfair dismissal application. The form makes clear that it is not an unfair dismissal application and contains a number of warnings for persons completing the form that they only have 21 days to make an unfair dismissal application.
[26] This is not a case where the Applicant submitted an incomplete application within a short time after the 21 day period expired or where the Applicant used the wrong form but made a clear attempt to file an unfair dismissal application within the required time. Rather, the only conclusion I can make on the evidence available to me, is that the Applicant filled in a request for assistance that bore no resemblance to an unfair dismissal application and which contained a specific disavowal to the effect that it is not such an application. I do not accept the Applicant's assertion that the forms he filled out gave no real indication that this was the wrong procedure. To the contrary, the form the Applicant completed gave every indication that it was not an unfair dismissal application and that he had a 21 day period on which to make such an application.
[27] An incomplete application or an application made in the wrong form will not necessarily be invalid and such an application made within time is capable of being accepted without the need for the grant of a further period to rectify deficiencies in form or content.[3] However, an Applicant seeking to establish exceptional circumstances on the basis of technical difficulties with the Commission's lodgement portal or that an incorrect form was lodged within the required time, is in my view, required to provide evidence to establish matters such as the nature of the technical difficulties or what was filed and when it was filed.
[28] For example, in Arch v Insurance Australia Group Services Pty Limited[4] there was evidence of technical issues associated with a maintenance closure of the Commission's portal at or around the time that the Applicant established that he was attempting to lodge his application[5]. The Applicant also provided sufficient evidence of the time at which his attempts were made including copies of a partially completed application. That material was sufficient for the Commission to make a finding that there were exceptional circumstances caused by the technical issues and that a valid application was made, notwithstanding that it was incomplete.
[29] If the Applicant in the present case submitted a document to the Commission to contest his dismissal, then he should have a copy of that document to establish this fact. The Applicant has not produced any material to evidence the document that he filed upon which I could make a finding that there was an application made within time. Further, the Applicant has not established that the fact that he erroneously believed that the form requesting assistance from the Workplace Advice Service was an unfair dismissal application, is a credible explanation for the late filing of his application.
[30] The form the Applicant completed is not confusing and he was not led into error by any information on the Commission's website or by the conduct of its staff or the staff of the Workplace Advice Service. As a result, there is no credible explanation for the delay in lodging the application. The lack of a credible explanation for the delay in filing the application is a matter that weighs against the exercise of the discretion to grant a further period for the application to be made.
Whether the person first became aware of the dismissal after it had taken effect - s.
[31] The Applicant became aware of the dismissal on the date that it took effect - 19 November 2019 - as evidenced by the statement to this effect in his application. There was no confusion or lack of clarity which could have contributed to the delay and this is a factor that weighs against the exercise of the discretion to grant a further period for the application to be made.
Any action taken by the person to dispute the dismissal - s.394(3)(c)
[32] There is no evidence that the Applicant took any action to dispute his dismissal other than filing an unfair dismissal application. However, this is not a case where any lack of action on the part of the Applicant is combined with a lengthy delay. On balance this is a neutral consideration.
Prejudice to the employer including prejudice caused by the delay - s. 394(3)(d)
[33] There is no evidence that the Respondent will suffer prejudice as a result of the delay in filing the application other than the prejudice associated with having to defend the application. This is the same prejudice as the Respondent would suffer if the application was made within time. It is also the case that the delay is not extensive. On balance this is a neutral consideration.
[34] In the matter of Kornicki v Telstra-Network Technology Group[6] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
"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."[7]
[35] The Applicant asserts that he was dismissed after raising issues about safety. The Respondent asserts that the Applicant was dismissed for a range of reasons involving misconduct. The Respondent also asserts that it is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.
[36] It is apparent that there are disputed facts which could only be resolved by evidence at a hearing. In these circumstances I have considered the merits of the application as a neutral factor in my determination as to whether the discretion to grant a further period to make the application.
Fairness as between the person and other persons in a similar position - s.394(3)(f)
[37] There is no evidence that there are any other employees in a similar position to the Applicant. This is a neutral factor. If this consideration requires fairness to be considered on a broader scale, then a refusal to grant a further period in the circumstances of this case will not be inconsistent with other cases where employees have been refused a further period when the reasons for the delay have been similar or the same as those provided in the present case and consistent with Full Bench authority in Nulty v Blue Star Group Pty Ltd.
[38] If the Applicant wished to assert that he lodged a valid application in the correct form within the required time or that there were circumstances associated with his completion of an incorrect form that were exceptional, then it was incumbent upon him to place evidence before the Commission about the steps he took or attempts made to lodge his application, when the steps were taken or the attempts made and what if any technical difficulties were encountered resulting in him lodging the incorrect form. The Applicant had numerous opportunities to provide a statement to the Commission in relation to these matters and has not done so.
[39] The only evidence having any relevance to these assertions is a statutory declaration filed by the Applicant on 13 March 2020 and the contents of his Form F2 Unfair dismissal application. I am unable to be satisfied, on the basis of that material, that there are exceptional circumstances justifying an exercise of the discretion to extend the time for the application to be made.
[40] After weighing each of the matters I am required to consider, I am not satisfied that when they are considered individually or collectively, there are exceptional circumstances taking into account the matters in s. 394(3) of the Act such that the discretion to grant a further period in which to make the applications should be exercised in favour of the Applicant.
[41] Accordingly, the application in U2019/14014 is dismissed and an Order to that effect will issue with this Decision.
[1] Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394
[2] Nulty v Blue Star Group [2011] FWAFB 975
[3] Arch v Insurance Australia Group Services Pty Limited [2018] FWCFB 975 at [39] - [41].
[6] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
Printed by authority of the Commonwealth Government Printer
Mr Daniel Martin
Kancee Pty Ltd T/A GT AIR [2020] FWC 1737