Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] On 30 November 2023, Mr. Edison Musoni (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) with the Fair Work Commission (Commission). The Applicant's former employer and respondent to the application was Canberra Construction Recyclers Pty Ltd (Respondent).

• [2] The Respondent objected to the application on the basis that it was made outside the 21-day time limit prescribed by s.394(2) of the Act.

• [3] Before considering the merits of the application for an unfair dismissal remedy, the Commission must be satisfied that the application was not made out of time or alternatively, extend the 21-day time limit provided for in section 394(2)(a). It was not in issue between the parties that the application was made outside the 21-day time limit. The Respondent said that the termination was communicated to the Applicant by email on 6 October 2023. The Applicant accepted that the termination of his employment took effect when it was communicated to him no later than 9 October 2023. In the absence of evidence of the email to the Applicant on 6 October 2023 enclosing the letter of termination of the same date, I accept that the termination took effect on 9 October. I therefore conclude that the deadline for the filing of the application expired on 30 October 2023 and that the application was made 31 days outside the prescribed time limit.

• [4] The Applicant has asked the Commission to exercise its discretion to extend the time limit under s.394(3) of the Act. That course was opposed by the Respondent. This decision deals with the question of whether or not the time for the making of the application should be extended.

• [5] The Applicant commenced his employment as a labourer with the Respondent in December 2016. He worked at the Respondent's facility at Pialligo in the Australian Capital Territory under the terms of the Waste Management Award 2020. He worked in a full-time capacity.

• [6] On or about 17 September 2023, the Applicant suffered an injury to his finger as a result of an accident that occurred outside of the workplace. The injury resulted in an absence from work commencing on 18 September 2023. The Applicant said that he had advised his employer of his injury, including by providing medical certificates, to explain his absence. The Respondent said the absence was not properly explained by the Applicant They said that despite previous warnings, the Applicant remained absent without proper explanation and that he was uncontactable during his absence. Ultimately the Respondent terminated the Applicant's employment by letter dated 6 October 2023. The letter cited continued extended periods of unexplained absence from work as the reason for the termination.

• [7] Section 394 of the Act provides that the Commission may allow a further period for an application for an unfair dismissal remedy to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters:

(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 Applicant gave evidence as to the various reasons for the delay in filing the application. He said he remained affected by the injury to his finger. He said he was not thinking clearly because of the shock of his unexpected termination and that he was emotionally overwhelmed. The Applicant said he had limited spoken and written skills in the English language and that this made seeking assistance and advice more difficult. He said that he sought documentation from the Respondent including warning letters, which was not provided to him. He said this impeded his capacity to respond to the termination. The Applicant said that eventually his health became better on or about 10 November 2023 and that at around this time he was referred by a friend to a lawyer who could assist him. He said the lawyer was away overseas and the Applicant was not able to get assistance from that person. The Applicant said eventually he spoke to a new circle of friends on 29 November who told him that he did not need a lawyer to make an application and that he filed the application the following day. The Applicant said he was not aware of the 21-day time limit.

• [10] The Respondent submitted that there was a lack of evidence to support a conclusion that the Applicant had been hindered, prevented or incapacitated in such a way that he could not seek assistance with or complete an application. The Respondent said there was a lack of medical evidence to show that the Applicant had experienced health problems of such magnitude as prevented him from the timely lodgement of an application. The Respondent questioned the Applicant's lack of English language skills and said that the Applicant had demonstrated some proficiency in English in the workplace. The Respondent said that in any case, lack of or limited English skills, difficulty in obtaining legal advice and ignorance of the time limit in the Act have not been taken to amount to exceptional circumstances.

• [11] The delay referred to in s.394(a) is the period from the 21-day period after the dismissal takes effect until the date the application is lodged, although it is well-accepted that events preceding the delay may be relevant to the reason for the delay.[1]

• [12] 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. An applicant does not need to provide a reason or reasons for the entire period of the delay. Exceptional circumstances may still be found to exist even if a reason has not been provided for some part of the delay.[2]

• [13] I am satisfied that the Applicant's limited command of English would have created some difficulties for him in obtaining advice and preparing an unfair dismissal application. This would include providing instructions to a lawyer about his situation. I also accept that the termination of the Applicant's employment after almost seven years with the Respondent would have had been very upsetting for the Applicant and had some impact on his capacity to act quickly to seek advice and file an unfair dismissal application. However, I am not satisfied on the evidence that the impact was so severe as to impede any efforts that the Applicant might have made to pursue an application. I note that the most recent medical certificate provided by the Applicant and dated 2 October certified him fit for limited work duties and that the injury would require 2 to 3 weeks for complete healing. On this basis the Applicant would have fully recovered from his physical injury before the time for filing an application had expired. I accept that the Applicant requested copies of written warnings shortly after his termination took effect because he did not have copies of those letters and that they were not provided. This would have been a source of frustration to the Applicant at a time when he was questioning his termination, but I do not consider that it goes very far to account for the 30-day period of the delay.

• [14] Overall, I do not think the reasons proffered by the Applicant satisfactorily explain the period of the delay and this weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect.

• [15] I have concluded that the dismissal took effect on 9 October when the Applicant was made aware of it. As a result, the Applicant had the benefit of the full 21-day period within which to make an application. I consider this to be a neutral consideration.

Any action taken by the person to dispute the dismissal

• [16] The Applicant challenged his termination by email when he became aware of it on 9 October 2023. He asked for copies of the warning letters so that he could reply. On 10 October 2023 having not been provided with the letters he repeated his request. He challenged the reasons for his termination. He pointed out that he had been terminated for a temporary absence due to illness or injury, he asserted that medical certificates were provided and would be provided again and asked that the decision to terminate be reviewed and reversed. These efforts weigh in the Applicant's favour in the overall assessment.

• [17] The Respondent accepted that there was no relevant prejudice to it caused by the delay. I regard this as a neutral consideration in this case.

• [18] Many of the facts going to the merits of the application were contested. The validity of the reasons for the dismissal would be an important element of the success of any application. The Applicant denied that the events relating to an absence from work in 2022 cited by the employer in the termination letter, provided a basis for his termination. The Applicant said that he provided medical certificates for his September/October 2023 absence to the Respondent. The Respondent denied that all certificates were received and asserted that repeated attempts by the Respondent to contact the Applicant had failed and the Applicant had failed to make contact during his absence. The Respondent provided evidence that the Applicant had received a formal written warning dated 25 September and was therefore on notice that termination was being contemplated.

• [19] I am satisfied that the Applicant provided some notice and medical certification relating to his absence in September and October. There were text messages showing the Applicant notifying his supervisor of his absence on 17 September and referencing a medical certificate as attached. There was also a message from the Applicant on 26 September referring to a certificate that had been provided for the period 25-29 September which the Respondent acknowledged. However, the messages also show that there was a request for a medical certificate from the supervisor on 19 September and a further request from the Respondent for a medical clearance on 25 September. The warning letter of 25 September says that the Applicant produced a medical certificate but only after an extended absence and only after the Applicant had told the Respondent that a certificate had been provided when it had not and the Respondent pursued the matter. On balance, I am satisfied that the Applicant provided medical certification to the Respondent for the period from his injury until 29 September 2023. This is consistent with his version of events in his correspondence to the Respondent shortly after his termination. However, there is insufficient evidence for me to be satisfied here that the Applicant provided to the Respondent the further certificate for the absence for the period from 2 October.

• [20] It is not appropriate for me to attempt to resolve all contested facts going to the merits for the purpose of dealing with this application. That would be a matter for a full hearing. Having regard to the evidence and taking the most generous view of the Applicant's case, I am of the view that the case for the Applicant is at best arguable. This weighs in the Applicant's favour in determining whether exceptional circumstances exist.

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

• [21] Neither party brought to my attention any relevant matter concerning this consideration. I find that there is nothing for me to weigh under this heading in my assessment of whether there are exceptional circumstances.

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

• [22] Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3] Exceptional circumstances may 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 can be considered exceptional. [4]

• [23] Having regard to all of the circumstances of this case and the matters in s.394(3), and my conclusions in relation to those matters set out above, I am not satisfied that there are exceptional circumstances to warrant an extension of time.

• [24] The Applicant's application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.

Mr Ezekiel-Hart and Mr Jean-Marie for the Applicant.

By video using Microsoft Teams at 10:00am AEDT on Tuesday 16 January 2024.

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

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

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901.

Printed by authority of the Commonwealth Government Printer