s.394 - Application for unfair dismissal remedy

• [1] On 2 February 2024, Mrs Eugenia Ho (the Applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s 394 of the Fair Work Act (the Act) in relation to the termination of her employment by Schenker Australia Pty Ltd (the Employer).

• [2] The Employer terminated Mrs Ho's employment by letter dated 19 September 2023 and the letter stated that the employment was terminated with effect on 19 September 2023.

• [3] Before determining whether the dismissal was unfair, the Commission must be satisfied that an application was made within time or allow a further period of time under s 394.

• [4] Taking the date the dismissal took effect as 19 September 2023, the statutory period of 21 days therefore ended at midnight on Tuesday 10 October 2023. The application was filed on 2 February 2023, 115 days after the end of the statutory period.

• [5] Having considered the evidence and submissions of the parties, and the factors in s 394(3) of the Act, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. Therefore, the application is dismissed. My detailed reasons follow.

• [6] Mrs Ho's employment with Schenker started on 20 June 2016.

• [7] From around October 2021, Mrs Ho was absent from work on Workers Compensation.

• [8] From 9 August 2023, the Employer began a process of enquiring about Mrs Ho's fitness for work and return to work, including requesting meetings and medical certificates.

• [9] On Friday 15 September 2023, the Employer wrote to Mrs Ho, warning her that they were considering terminating her employment on the grounds of abandonment of employment.

• [10] On Tuesday 19 September 2023, the Employer again wrote to Mrs Ho and terminated her employment due to abandonment of employment. The letter stated that the termination was "effective today, 19 September 2023."

• [11] Directions were issued. Mrs Ho filed brief submissions but no witness statement or documentary evidence. The Respondent filed a reply to Mrs Ho's submissions. My chambers compiled the materials into a digital hearing book, which was provided to the parties prior to the hearing.

• [12] A determinative conference via Teams was held on Friday 1 March 2024.

• [13] Mrs Ho represented herself and gave evidence on her behalf. Mr Alistair Jacobs, People & Organisation Business Partner, gave evidence on behalf of the Respondent.

• [14] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

• [15] Section 394(3) of the Act provides that:

[T]he 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.

• [16] The legislation is clear that the power to extend time is discretionary but may only be exercised if first satisfied that there are exceptional circumstances.

• [17] Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd establishes the following:

• the Commission must consider all of the circumstances;
• the phrase's ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
• but the phrase does not require circumstances to be unique, nor unprecedented, nor even rare;
• a single event can be exceptional;

• • a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon;[1]

• [18] The matters in s394(3) are factors to be taken into account in ascertaining whether there are exceptional circumstances. The factors themselves do not have to be exceptional. The conclusion about whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[2]

• [19] The Full Bench in Ozsoy v Monstamac Industries Pty Ltd said that an applicant needs to provide a credible reason for the whole of the period that the application was delayed, and that the delay is the period beyond the specified 21 days.[3] In this matter, that period is 115 days.

• [20] Mrs Ho's evidence and submission is that the reason for the delay in lodging her application included that she was unwell and unable to cope following the termination, and that she did not know what her rights were or how to assert them.

• [21] Mrs Ho did not provide any medical evidence in support of how unwell she says she was. She did present as distressed during the hearing, and I found her believable when she told me that she was shocked by the termination and had a mental breakdown in which she could not cope, was embarrassed to talk to anyone or tell anyone about it. She also said that she did not know what to do and wanted to pretend everything was fine.[4]

• [22] Mrs Ho also gave evidence that she sought help from the union, including sending the letter of termination to the union but did not get a reply from them. She called a few times and left messages but never spoke with anyone. Mrs Ho's evidence was that, in her messages, she asked what she could do, and to be called back, advising that she needed an urgent reply, was stressed and not coping. Mrs Ho also gave evidence that while she did follow up with the union, she thought that their non-response may have been because she was no longer making payments for her membership. It was not until around Christmas time that Mrs Ho sought advice from another source.[5]

• [23] Mrs Ho gave evidence that she finally learned about her options around Christmas time but did not take any steps as she 'didn't want to deal with it and ...couldn't cope with it.'[6]

• [24] Mrs Ho gave evidence that she was taking a lot of medication and had been undergoing many medical procedures. Much of her evidence was in relation to what occurred before her termination, but it was clear that she continued to undergo medical treatment after the termination and up until the date of the hearing.[7] No medical evidence was provided.

• [25] The Employer submits that most of the matters raised by Mrs Ho in her submissions were not relevant to the reason for the delay, as much of Mrs Ho's submissions were directed towards matters that occurred prior to the dismissal. The Employer also submitted that Mrs Ho indicated to them that she would contact her union and it was therefore reasonable to assume that she was receiving advice and could have made her application within time.[8]

• [26] I can understand that Mrs Ho was shocked and distressed by her termination, especially in the context of being off work due to her ill health. Unfortunately, it is not unusual or out of the ordinary to be distressed following termination of employment. Nor is it unusual to be unaware of time limits or the process.[9]

• [27] I do not consider that Mrs Ho has an acceptable reason for the delay. The key reason was simply that Mrs Ho did not want to deal with it, and while she made some efforts to get assistance, such as from her union, she simply continued to delay instead of taking any form of action. I accept that Mrs Ho had medical reasons, but she did not provide any evidence about how this affected her capacity to complete and lodge the reasonably straightforward unfair dismissal application form, and she was otherwise capable of attending regular appointments.[10]

• [28] I consider that this factor does not weigh in favour of extending time.

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

• [29] Mrs Ho first became aware of the termination of employment when she received the letter dated 19 September 2023. This was on the same date as the letter.[11]

• [30] I consider that this factor does not weigh in favour of extending time.

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

• [31] Mrs Ho took steps to dispute her dismissal immediately after it took effect, by contacting the employer directly and by attempting to contact her union.

• [32] I consider that this factor weighs mildly in favour of extending time.

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

• [33] The delay was 115 days. This is a significant period of time, especially in circumstances where the statutory time limit is only 21 days and where there are good policy reasons for the time limits. In this case of time limits in unfair dismissal matters, the time limit's purpose is so that rights are exercised promptly, so as to bring about certainty.[12]

• [34] However, neither party made submissions regarding any prejudice to the Respondent about the delay.

• [35] I consider this factor neutral in my determination of this matter.

• [36] My assessment of the merits of a substantive application for the purposes of the question before me (whether to grant an extension of time) is primarily whether the Applicant has an arguable case. It does not require a detailed analysis of the substantive merits.[13] The Full Bench in Long v Keolis Downer T/A Yarra Trams stated that in relation to this factor, the Commission is not in a position to make findings of fact on contested issues, and nor should parties be required to present their evidentiary cases twice.[14]

• [37] Mrs Ho's case is that the Employer did not follow a fair process or clearly communicate with her prior to its decisions to terminate her employment. The Employer provided information about the process that it did follow.

• [38] I am of the view that Mrs Ho's case is not entirely without merit, and so consider this factor neutral in my determination of this matter.

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

• [39] The Full Bench in Perry v Rio Tinto stated that 'this consideration is concerned with the importance of the application of consistent principles in cases of this kind' and that it may relate to matters that are currently before the Commission or that have been previously decided.[15] The Full Bench in Croker v Erndit Logistics Pty Ltd has indicated that this factor may involve a comparison of cases involving similar facts.[16]

• [40] Neither party made submissions relevant to this factor.

• [41] As I am unaware of any relevant matter, I consider this factor neutral in my determination of this matter.

• [42] Weighing up all the factors, I have formed the view that there were not exceptional circumstances such as to allow me to exercise a discretion to extend time. Mrs Ho did not have an acceptable reason for the length of the delay.

• [43] I therefore dismiss Mrs Ho's application for an unfair dismissal remedy.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[2] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39].

[3] [2014] FWCFB 2149 at [31].

[4] Transcript of Proceedings, PN49 - PN50.

[9] See Shergill v Dairy Technical Services Ltd [2014] FWC 495 at [25].

[10] See Bagster v Add Staff Recruitment T/A Add Staff Recruitment [2020] FWC 6109 and Wallwork v Astec Australia Pty Ltd [2020] FWC 6125.

[11] Transcript of Proceedings, PN43 - PN44 and PN 165 - PN172.

[12] Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine - [2016] FWCFB 6963 at [43].

[13] see Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [48]; also, Sutton v Hepburn Shire Council [2022] FWCFB 109 at [26].

[14] [2018] FWCFB 4109 at [72].

[15] [2016] FWCFB 6963 at [41].

[16] [2023] FWCFB 224 at [49].

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