Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - application posted within time - delay attributable to mail redirection - exceptional circumstances - extension granted

• [1] This decision concerns an application by Mr Robert James Marshall (Applicant) for an unfair dismissal remedy (Application) pursuant to s 394 of the Fair Work Act 2009 (Act).

• [2] The Applicant submits that his employment with Camm Contracting (Respondent) was terminated with effect from 28 February 2024. The Respondent submits that there was no termination at the initiative of the Employer but does not dispute that the Applicant's employment ended with effect from 28 February 2024.

• [3] The application was received by the Fair Work Commission (Commission) on 25 March 2024. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made "within 21 days after the dismissal took effect", or within such further period as the Fair Work Commission (Commission) allows pursuant to s 394(3). The Application was lodged on 25 March 2024. As the Applicant's employment ended on 28 February 2024, the last day to lodge the Application was 20 March 2024, and was therefore lodged 5 days out of time. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

• [4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are "exceptional circumstances". Briefly, 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.[1] 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.[2]

• [5] The requirement that there be exceptional circumstances before time can be extended under section 394(3) contrasts with the broad discretion conferred on the Commission under section 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

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

• [7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

• [8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[3]

• [9] I have reviewed the material before me, including the Australia Post tracking history of the Application, and have gleaned the following timeline:

• On 7 March 2024, the Application was posted from Latrobe Post Office, Tasmania. It was sent by express post and was addressed to "Fair Work Commission, GPO Box 1232, Hobart 7001".

• On 8 March 2024, the Application was awaiting collection at the Hobart GPO Post Shop.

• On 14 March 2024, the Application was redirected to a new address.

• On 15 March 2024, the Application was delivered to Port Melbourne.

• On 19 March 2024, the Application was stamped as being sent to the Melbourne Magistrates' Court.

• On 22 March 2024, the Application was sent from the Melbourne Magistrates' Court to the Commission in Melbourne.

• On 25 March 2024, the Application was received by the Commission in Melbourne, five days out of time.

• [10] The Applicant's evidence is that he mailed the Application in Latrobe, Tasmania on 7 March 2024. This is consistent with the postmark on the envelope and the Australia Post tracking history. The Application was sent by express post and was addressed to "Fair Work Commission, GPO Box 1232, Hobart 7001". On 14 March 2024, it was then redirected by Australia Post to the Fair Work Commission, Melbourne, as is evident from the sticker on the envelope.

• [11] Ultimately, the Application was not received by the Fair Work Commission, Melbourne until 25 March 2024.

• [12] The Australia Post website states that their delivery speed for express post letters in the same state is 1-2 days, not including the actual date of postage. As the letter was posted on 7 March 2024, there were 9 business days available, not including the day it was posted, for the letter to be delivered. This was a sufficient period for Australia Post to deliver the letter to the Commission within the statutory period. In all circumstances, I believe the Applicant was entitled to assume the letter would have been received by the Commission within the 21 day period. The Applicant correctly addressed the Application to the postal address of the Commission's Hobart office. The Applicant is not responsible for the fact that the letter was redirected to Melbourne and the associated delay.

• [13] In the circumstances, I am satisfied that the Applicant has provided an acceptable explanation for the delay. This weighs strongly in favour of the granting of an extension of time.

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

• [14] There is no contest that the Applicant's employment ended on 28 February 2024.

• [15] Having made a finding that the Applicant was aware his employment ended on 28 February 2024, I find that the Applicant had the benefit of the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

• [16] Action taken by an employee to contest the dismissal, other than lodging an unfair dismissal application, may favour the granting of an extension of time.[4]

• [17] There is no evidence before me that the Applicant took any action to dispute the dismissal other than the making of this application.

• [18] This factor weighs against the granting of an extension of time.

• [19] Prejudice to the employer will go against a granting of an extension of time.[5]

• [20] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not, in my view, a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [21] The Respondent submits that the Applicant was not dismissed and that he orally resigned after the Respondent raised concerns about the Applicant's failure to follow standard operating procedures. The Respondent additionally raises that the Applicant has not met the 12-month minimum employment period to lodge an application against a small business employer.

• [22] The Applicant submits that he was dismissed for causing a flat tyre on a log forwarder, and that it was unfair as the digital pressure gauge was not working, it was dark at the time and he had received no prior warnings.

• [23] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission.[6] At least two similar circumstances to the situation in this matter have been dealt with and decided in the past.[7] It is fair that this decision is consistent with the approach taken in those matters.

• [25] This factor weighs in favour of granting an extension of time.

• [26] Having regard to the matters I am required to take into account under s 394(3), I am satisfied that there are exceptional circumstances in this case. Whilst some of the factors required to be considered are either neutral or do not point in favour of granting an extension of time, I have determined that there is a credible reason for the delay and that the consideration of s 394(f) weighs in favour of granting an extension of time. For those reasons, I am satisfied that the discretion to extend under s 394(3) is enlivened and I consider it appropriate to exercise it. The matter will be programmed for further directions.

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

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[6] Wilson v Woolworths [2010] FWA 2480, [24]-[29].

[7] Leung v Chinese Community Social Services Inc [2015] FWCFB 2106; Jack Bicanic v the Trustee for Bicanic Family Trust [2024] FWC 75.

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