Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] This Decision concerns an application by Mrs Sara Wallwork (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by Astec Australia Pty Ltd (the Respondent). Section 394(2) of the Act requires that such an application is made within 21 days of a dismissal taking effect, or such further period as the Commission may allow under s. 394(3). The application was filed on 27 August 2020.

[2] In her Form F2 Application for an unfair dismissal remedy, the Applicant stated that the termination of her employment took effect on 3 August 2020 and provided reasons as to why the application had not been made within 21 days of that date as required by s. 394(2) of the Act as matters the Commission should take into account in considering whether the application should be accepted out of time. On the basis of the information provided by the Applicant in the Form F2 Application, the application was required to be made by midnight on 24 August 2020 and was lodged 3 days outside the required time.

[3] Correspondence was forwarded to the Applicant from the Chambers of Vice President Catanzariti stating that the application had been made outside the required time, and requesting that the Applicant confirm whether she wished to proceed and provide information as to why a further period should be granted. The Applicant responded confirming that she did wish to proceed and elaborating on the matters set out in her Form F2 in relation to why her application had been made outside the required time.

[4] The Respondent in its Form F3 Response objects to the application on the basis that it asserts that the Applicant's dismissal was a case of genuine redundancy.

[5] The matter was allocated to me for determination of whether a further period should be granted for the application to be made. I decided to conduct a hearing and issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether further period should be granted. The Applicant subsequently filed a letter from her clinical psychologist which she also sought to rely on.

[6] At the hearing the Applicant represented herself. The Respondent was represented by Mr Tom Anstice, Services and Parts Director and Mr Mark Davel, the Respondent's Financial Controller.

Whether a further period should be granted for the application to be made

The approach to deciding whether a further period should be granted

[7] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. 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."

[8] 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]

[9] 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]

[10] The assessment of whether "exceptional circumstances" exist requires a consideration of all of the relevant circumstances and no one factor need be found to be exceptional in order to enliven the discretion to extend time. As a Full Bench of the Commission observed in Stogiannidis v Victorian Frozen Foods Distributors t/as Richmond Oysters (considering similar provisions in s. 366(2) of the Act):

"[39] ...each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay."[3]

[11] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application and does not include the period from the date of the dismissal to the end of the 21 day period.[4] However, the circumstances from the time of the dismissal must also be considered and ultimately a decision made as to whether those circumstances are exceptional circumstances.[5] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.[6] I turn now to consider each of the matters in s.394(3) of the Act.

Reasons for the delay - s.394(3)(a)

[12] As previously noted, the delay which must be considered in determining whether to extend time for making an application is the period beyond the prescribed 21 day period. In the present case, the period of the delay is 3 days.

[13] In her Form F2 Application, the Applicant identifies that the application has been made outside the time allowed under s. 394(3) of the Act and explains the delay as follows:

I deeply apologies (sic) for the mistake with the delay of my application. I had posted my claim on the 24/08/2020 (within the 21 days' time frame) though via an incorrect web site called fair work claims which I only just learnt of this today was incorrect via their call to me from a gentleman named Michael about my claim. I genuinely believed I had posted on the/a correct site; I have no idea why/how I got it so wrong. Now that I know about my horrible honest mistake is why I am submitting my application being three days past the due date. I appreciate this application maybe disputed by yourself due to the unfortunate delay and Astec Australia though there are genuine grounds for unfair redundancy and treatment within my application.

I do believe this was not a genuine redundancy otherwise I would most certainly not waste your, mine or the staff of Astec Australia time with my application. I do hope the contents of my application will have evidence for this claim to be reviewed for further investigation on both parties myself and Astec Australia.

Michael from fair work claims (where I originally posted my claim) is also going to talk with a gentleman named Jeremey Walton to see if he can help me further with support of my unfortunate delayed application to you. Being this truly is a legitimate mistake on my behalf, I cannot believe I have made such a stupid error when this application is so particularly important to me. It is extremely out of character for me to get it so wrong. I sincerely cannot apologise enough to and your team commissioner.

Below is the original submission I thought I sent to you on the 24/08/2020 though it was placed on the other site. As you will find I did honestly try and place the claim on time. I truly hope this helps my case for my application to be accepted and reviewed with you Commissioner"

[14] The Applicant then included a lengthy submission said to be what the Applicant had filed as her unfair dismissal application on a website for an organisation titling itself "Fair Work Claims."

[15] On 7 September 2020, the Associate to Vice President Catanzariti sent correspondence to the Applicant advising that the application had been received outside of the 21 day time frame allowed under s. 394(2) of the Act and that the Commission may extend the time period for lodging an unfair dismissal application only if satisfied that there are exceptional circumstances for not lodging the application in time. The correspondence also set out the matters the Commission is required to consider in deciding whether to grant a further period under s.394(3) of the Act.

[16] On 9 September 2020, the Applicant responded to Vice President Catanzariti's correspondence confirming that she wished to proceed with the application and citing the following matters as being exceptional circumstances:

• The Respondent had told the Applicant on the day she was made redundant that its independent HR consultant would support her, but the consultant had instead told the Applicant that "shit happens" and this comment had deeply affected the Applicant;

• From that date the Applicant had felt alone and unsupported and did not feel like she could reach out for support from the consultant despite the Respondent's advice in this regard;

• The Applicant had attended an exit interview on 10 August 2020 with the consultant and her own "silent support person" and that due to a difference in the Respondent's notes from the interview the Applicant knew the Respondent was not invested in her "comments and concerns";

• The Applicant was extremely depressed for several weeks following 3 August 2020 and had changed medication; and

• As the Applicant had never been made redundant before, the process of completing an unfair dismissal application was unfamiliar, and at the point the Applicant filed her application on an incorrect website, she was extremely stressed, anxious, depressed and far from her usual self.

[17] At the hearing I asked the Applicant to provide further evidence as to how she made an error in lodging her application. The Applicant's oral evidence was that on Monday 24 August 2020 she followed a link that directed her to a website called Fair Work Claims. The home page contains a large logo with Fair Work Claims in blue letters. Below this is a line of text that reads "Helping National System Employees Access Justice in the Fair Work Commission". Below this line, are six boxes containing questions as follows;

• Have you been sacked?

• Been ripped off by the boss?

• Being bullied?

• Have you been punished for speaking out?

• Been discriminated against or sexually harassed?

• Received a written warning?

[18] The Applicant said she followed a link at the top of the website that read "Contact Us" which directed her to another webpage asking the user to fill out contact information. The Applicant tendered a photograph of her computer screen displaying this webpage. It is on this page that the Applicant said she completed what she had mistakenly thought was an unfair dismissal application. The link to Fair Work Claims "Contact Us" page is shown at the top of the page and follows other links which read "Our Approach", "Our Services", "LGBTIQ" "News", "Videos" and "Contact Us".

[19] The "Contact Us" page on the Fair Work Claims website has a number of spaces for a user to complete contact information and information about their issue. Directly below the heading "Contact Us" is text that states:

"Workplace disputes don't just happen between 9am and 5pm.

Our on-call consultant can get back to you after hours if the matter is urgent.

Please call 1300 324 748 or simply fill out the form below."

[20] The online form has the following spaces for the user to input information:

• First name

• Last Name

• Organization

• Your email

• Mobile Phone

• Your state

• Client type

• Matter type

• Tell us some more about your issue

[21] Included on the Applicant's Form F2 application was a copy of what the Applicant sent Fair Work Claims as her unfair dismissal application. The document commences with "Dear Commissioner" and is a lengthy submission containing information about the Applicant's redundancy, copy and pasted information about genuine redundancy and various allegations about bullying, discrimination and safety breaches said to have occurred during the Applicant's employment with the Respondent. The document concludes with the Applicant stating:

"...I hope I have written and expressed enough concern to hear back from you Commissioner. As much as I would like to continue with all my other recent and relevant issues, I know your time is important and limited to reading a novel. Again, I am more than happy to discuss this case further and in more detail."

[22] The Applicant states that she sent this information at 11.35am on 24 August 2020. This was the last day for the Applicant's application to have been filed within time. The Applicant further states that a representative from Fair Work Claims contacted her by telephone on Thursday 27 August 2020. The Applicant states that she had a discussion with the representative and advised that an application, and the representative responded stating that that they did not have an application. The Applicant also states that she then said words to the effect of: "so you aren't the Fair Work Commission" and was advised that Fair Work Claims is not the Fair Work Commission.

[23] The Applicant said that upon realising the error, she immediately filed an unfair dismissal application in the Fair Work Commission. The Applicant filed her unfair dismissal application by email on 27 August 2020 at 5.19 pm and included within it substantially the same statement she had submitted to Fair Work Claims via its website.

[24] The Applicant also said that other reasons for the delay were that following her redundancy she was stressed, anxious and was still trying to process her redundancy. In support of her assertions of stress the Applicant tendered a letter from a clinical psychologist stating that she had conducted three telephone consultations with the Applicant on 26 August, 4 September and 18 September as a result of the Applicant being referred by her General Practitioner. The letter states that the Applicant was experiencing moderate symptoms of depression, anxiety and stress. The Applicant also referred to the fact that she had felt unsupported by the HR consultant the Respondent arranged to support her following her redundancy.

[25] I accept that there is a similarity between the names of Fair Work Claims and the and the Fair Work Commission. Doubtless this similarity is intentional. Entering "Fair Work" into Google displays a range of sites including the Fair Work Ombudsmen's website and the Fair Work Commission's website. The Applicant did not give evidence as to what she searched that caused her to follow a link to Fair Work Claims, only that this is the link she followed to lodge an unfair dismissal application.

[26] Entering "Fair Work Claims" into Google displays an advertisement as the top result for www.fairworkclaims.com.au which states "Fair Work Claims - The Original Employee Advocate". Under this heading is a line of text: "Accept No Immitations. (sic) Speak to the Original Fair Work Claims Experts Today." The screen shot of the home page the Applicant tendered also includes testimonials from clients from Fair Work Claims which make it patently obvious that the site is not the Fair Work Commission website.

[27] It is also clear that clicking on the tab "Contact Us" and entering information, is not making an application for an unfair dismissal remedy. To the contrary, the information on the website makes it clear that Fair Work Claims represents persons who claim to have been unfairly dismissed or treated adversely at work. This is evidenced by prominent testimonials from clients.

[28] I accept that in uploading information to the Fair Work Claims site the Applicant mistakenly believed that she had made an unfair dismissal application. It is clear from the information the Applicant states that she sent to Fair Work Claims on 24 August 2020 that the Applicant believed that she was making an unfair dismissal application. The information is addressed "Dear Commissioner", contained relevant information about the identity of the Respondent and the Applicant's redundancy, and concluded with the Applicant stating that she hoped to "hear back from you Commissioner".

[29] Regrettable as it is that the name of an organisation has caused confusion on the part of the Applicant, this is not an exceptional circumstance. Equally regrettably, the fact that the Applicant felt depressed, anxious and stressed following her redundancy is not in of itself an exceptional circumstance. It is common for employees to suffer shock and trauma as a result of dismissal from employment and this on its own is not a basis for an extension of time being granted.[7] The letter from the Applicant's clinical psychologist is dated 23 September 2020 and evidences three tele-health consultations, all of which took place after the date for filing the application within time. The letter evidences moderate symptoms and does not indicate that these impaired the Applicant's cognitive ability nor that there was a medical reason why the Applicant could not file her application within the required time.

[30] The reasons for the delay do not weigh in favour of a further period being granted.

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

[31] The Applicant became aware of her dismissal on the day it took effect - 3 August 2020 as evidenced by the information contained in her Form F2 application. There was no confusion or lack of clarity which could have contributed to the delay. At best, this is not a matter that weighs in favour of a further period being granted and is a neutral consideration.

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 her 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] I cannot identify any prejudice that would accrue to the Respondent, other than the usual prejudice of being required to defend the application if I decided to allow a further period within which the application could be made. The delay is not so extensive that there would be any difficulty involving recollection of events or availability of relevant witnesses. By itself the absence of prejudice does not warrant a conclusion that there are exceptional circumstances nor provide a proper foundation to grant an extension of time under s.394(3) of the Act. However, the absence of prejudice does favour the Applicant, and weighs in favour of a further period being granted.

The merits of the application - s.394(3)(e)

[34] In the matter of Kornicki v Telstra-Network Technology Group[8] 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."[9]

[35] After considering the material filed by the parties it is clear that there are factual disputes between the parties. The application is met with a jurisdictional objection on the basis that the Applicant's dismissal was a case of genuine redundancy. It is clear that the Applicant strongly disputes the legitimacy of her redundancy. Whether that objection would succeed could only be determined at a hearing.

[36] 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] It is not clear whether this criteria requires consideration by the Commission of the position of other persons dismissed by the same employer or whether it also contemplates that the Commission consider the position of other persons generally who have sought further periods in which to make applications on similar grounds. The first approach may be relevant in cases where a number of employees are dismissed at the same time or by the same employer and some of those employees are granted a further period and some are not. The latter approach may require comparison of the circumstances of a particular applicant whose case is being considered by a member of the Commission to be compared with those of applicants in other cases considered by other members of the Commission where a further period is sought on the same or similar grounds.

[38] There are no other employees of the Respondent in the Applicant's position. Further, the parties have not raised other cases where the facts are similar and where extensions of time have or have not been granted. There are cases where error on the part of an applicant is an exceptional circumstance - either of itself or in combination with other factors - and cases where it is not an exceptional circumstance. In the present case, this matter is a neutral consideration.

[39] Having regard to the matters I am required to take into account under s. 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case. This is so whether the various circumstances are considered individually or together. The application for a further period is refused and the Applicant's unfair dismissal application in U2020/11651 must therefore be dismissed. 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] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] - [39].

[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[7] Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [58].

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

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