s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time

• [1] Ms Judd (Applicant) has filed with the Commission an application under s. 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy against her former employer Abyssinian Metals Ltd (Respondent). The application was filed one day outside of the standard time permitted by s. 394(2). The Respondent contends that Ms Judd resigned. Ms Judd contends that she was forced to resign within the meaning of s. 386(1)(b).

• [2] As the application was filed out of time, an extension is required for the application to proceed. Section 394(3) of the Act provides the Commission may allow a further period for the application to be made if satisfied that there are exceptional circumstances, taking into account the following:

(b) whether the person first became aware 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.

• [3] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[1]a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.

• [4] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)[2] as follows:

'[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.'

• [5] The reason for the delay is that Ms Judd sought advice about whether she was entitled to be paid 4 weeks' pay in lieu of notice as required by her contract and, if she was, how she could recover that sum. The advice was not straight forward given she had resigned and it was not provided to her until the 21st day after she was dismissed. Ms Judd has another job and the advice was provided while she was at work. It took her until the following day to file the application.

• [6] The length of the delay was one day and the reason was that the advice she had sought was not provided until the last day for filing. I do not regard these circumstances as so exceptional that they justify extended time. The action taken by Ms Judd to dispute the dismissal was to seek the advice already referred to. A request was made to the respondent to pay the 4 weeks' notice but no other challenge raised. I do not consider that the application being one day late prejudices the employer and consider that to be a neutral factor for the purpose of exercising the discretion to extend time. Ms Judd seeks the extension so that she can argue that the dismissal was unfair and seek an order for compensation equal to the 4 weeks' notice that she claims is owing. I was not provided with a copy of the contract that is said to include the entitlement. The nature of the case is unusual and so can be regarded as exceptional. Ms Judd indicated that should she not be able to proceed with this application she would proceed to claim the lost notice period in the Court.

• [7] The last matter I am required to take into account is fairness as between Ms Judd and other persons in a similar position. This is not a relevant matter in this case.

• [8] Taking these matters into account I do not find exceptional circumstances that justify extending the standard time for the filing of the application. Waiting for advice is not an exceptional circumstance justifying an extension, and, as Ms Judd is seeking as a remedy compensation for the loss of her contractual right to notice and intends to seek relief in the Court, where she has 6 years to do so, she has available another and more direct avenue to pursue her contractual rights.

[1] [2018] FWCFB 901

[2] [2011] FWAFB 975

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