Again, I remind you may find it helpful to access the confidential counselling service that is available to you, free of charge, through our Employee Assistance Program - the contact number is 1300 *** ***. Please note you have access to the EAP until 19 December 2016.

Please also remember that this matter is confidential. You must not discuss it with any other employee (except someone who is acting as a support person for you).

[9] The principles to be followed in determining the existence of an exceptional circumstance are well established and are set out in a decision of a Full bench in Nulty v Blue Star Group Pty Ltd[1];

[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.

Section 394(3)(a) - reason for the delay

[10] The Applicant claims that he was confused over his actual termination date and only became aware when he received his Separation Certificate on 8 November 2016, that the Respondent still regarded 19 October 2016 as his termination date.

[11] The Applicant advised the AMWU of this issue on 16 November 2016. The AMWU lodged an unfair dismissal application on behalf of the Applicant the next day.

[12] In Ayub v NSW Trains[2] a Full Bench of the Fair Work Commission held:

"[48] Nonetheless the critical point made in Gisda Cyf that the shortness of the period allowed to lodge a claim must inform the way in which the time-limiting provision is interpreted is valid in the context of the FW Act. Indeed the proposition is a fortiori given that time period allowed by the FW Act is much shorter and the circumstances in which an extension of time may be obtained are more constrained. An interpretation of s.394(2)(a) which would have the practical effect of reducing further what is already a very limited opportunity to lodge an unfair dismissal claim would be rejected if another is reasonably available. Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.

[49] In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee."

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

[13] Obviously the Applicant was aware he had been dismissed on 19 October 2016. However, the Applicant exercised his right as an employee of Qantas and sought an internal review of the decision to terminate his employment. Until this review was finalised, the Applicant was hopeful that the decision to terminate him would be overturned. Every employee who seeks an internal review would hope that their termination would be rescinded. Such a desire would be normal behaviour.

[14] The Applicant only became aware of the Respondent's reliance on the 19 October 2016 date on 8 November 2016 - one day before the expiration of the statutory time limit. In effect, this meant that the Applicant only became aware of his actual date of termination on the 20th day after his dismissal.

[15] I have taken this into account.

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

[16] The Applicant filed an internal appeal against his termination. The Applicant had also involved his Union, the AMWU, in representing his interests during this process.

[17] I have taken this into account.

[18] The Respondent claims that it will suffer prejudice if an extension of time is granted on the basis that it will be inconvenient to ongoing employees of the Respondent to deal with the proceedings and that the Respondent will incur costs in defending this claim.

[19] These issues do not enliven the issue of prejudice. The Respondent incurring cost and utilizing its employees as witnesses to defend its decision is part and parcel of every application before the Fair Work Commission. To extinguish an Applicant's unfair dismissal application on these grounds would be bordering on a breach of procedural fairness.

[20] I have taken this into account.

[21] The Applicant was terminated for misconduct after allegedly bullying a fellow employee of the Respondent, in breach of the Respondent's Standards of Conduct Policy. The Applicant claims that there were extenuating circumstances in relation to his behaviour which the Respondent did not consider in reaching its decision to terminate his employment.

[22] In Kornicki v Telstra-Network Technology Group[3] (Kornicki) the Commission considered the principles applicable to the extension of time discretion under the former section 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."

[23] Detailed evidence on the merits of a case are rarely dealt with at an extension of time hearing. As a result, the Commission "should not embark on a detailed consideration of the substantive case" for the purpose of determining whether to grant an extension of time to the applicant to lodge their Application.

[24] I adopt the reasoning of the Full Bench of the Australian Industrial Relations Commission in Kornicki. I find that this factor is a neutral consideration in these proceedings.

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

[25] I am not aware of any other employee of the Respondent who has filed their unfair dismissal application late due to the delay in the Respondent's internal appeals process.

[26] I do not accept the Respondent's submission that granting an extension of time to the Applicant would be unfair to employees of the Respondent who have previously lodged their unfair dismissal applications on time.

[27] I find that it would not be unfair to employees in a similar position to grant an extension of time to the Applicant.

[28] In determining this matter, I have taken into account all of the submissions of the parties.

[29] I note that Mr Walker advised Mr McRae that his decision was final. Such a phrase would infer that 7 November is the accurate date of termination.

[30] It would be procedurally unfair to only allow the Applicant two days to lodge his application after receiving the outcome of his internal appeal from the Respondent. I acknowledge that the Applicant is a member of the AMWU who probably could have filed an application in the two days after the internal appeal was concluded. However, that is not the issue. If the Applicant was not a member of a Union then, based on the Respondent's logic, he would have needed to seek legal advice, perhaps unnecessarily, whilst Mr Walker was conducting his review or sought legal advice and completed his application in the two days after 7 November 2016. Such a proposition is unsatisfactory and unfair.

[31] The decision of the Full Bench in Ayub is on point. I adopt the obiter and reasoning of the Full Bench and find that the termination date of the Applicant was when he was notified of the outcome of his appeal, ie 7 November 2016.

[32] I find that the Applicant has submitted his application for an unfair dismissal remedy within the statutory timeframe in accordance with section 394(2)(a) of the Act.

[33] As a result of my finding, I have not needed to consider whether exceptional circumstances existed in this matter which would have allowed an extension of time in accordance with s394(3) of the Act.

[34] The substantive matter will be referred to a Member of the Fair Work Commission for directions and arbitration.

[1] [2011] FWAFB 975

[2] [2016] FWCFB 5500

[3] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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