Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - application faxed within time but not received - delay attributable to failed fax service - exceptional circumstances - extension granted

[1] By application dated 6 January 2021 (received by email on 19 January 2021) Robert Shigrov (Mr Shigrov or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Key Tubing & Electrical Pty Ltd (Key Tubing & Electrical, the Respondent or the Employer).

[2] Mr Shigrov is a resident of Adelaide. He commenced working for Key Tubing & Electrical on 15 October 2013. On 16 December 2020 his employment was terminated.

[3] Mr Shigrov's application (as sent by email) was received by the Commission on 19 January 2021. That date is outside the statutory 21-day time limit for filing unfair dismissal claims. As the date dismissal took effect was 16 December 2020, the application is thirteen days out of time. Mr Shigrov seeks an extension of time. The Employer opposes that course.

[4] On 29 January 2021 the Respondent lodged a formal response opposing the application.

[5] The Commission issued directions on 27 January and 2 February 2021.

[6] Mr Shigrov filed materials on 8 February 2021. Key Tubing & Electrical filed materials on 12 February 2021.

[7] I heard the extension of time matter by phone on 17 February 2021.

[8] Mr Shigrov was represented, with permission, by a paid agent Mr Paul Livesey. Key Tubing & Electrical were represented by Ai Group.

[9] At the commencement of the hearing, I advised the parties, following inquiries I initiated, that the Commission's website, insofar as it at least relates to South Australia and as last updated on 4 January 2021, advises as follows:

"Due to technical difficulties, the Commission's fax services are currently unavailable. We are working to fix the problem and apologise for any inconvenience. Note that email, phone and the online lodgement service are still available."

[10] The Commission website goes on to provide contact details, including a South Australian fax number. These publicly available website extracts were marked for identification.[1]

[11] I heard evidence from three witnesses:

• Mr Shigrov (Applicant);

• Mr Livesey (Applicant's representative); and

• Henri Hugo (Commercial Director, Key Tubing & Electrical).

[12] All witnesses gave evidence conscientiously and to the best of their knowledge and recall. Their evidence was reliable. No material issues of credit arise. The facts are largely not in dispute though not all facts were known at the relevant times to all witnesses.

[13] I make the following findings.

[14] On 16 December 2020 Mr Shigrov was advised in writing that his employment was terminated for cause from that day, with four weeks' notice to be paid in lieu.

[15] In around the final week of December 2020, Mr Shigrov sought advice from Mr Livesey. He instructed Mr Livesey to file an unfair dismissal application.

[16] On 5 January 2021 Mr Livesey prepared the unfair dismissal application by populating the contents of the form F2. He dated it 6 January 2021, as he intended to lodge it the following day. In answer to the question 1.5 of the F2, he replied "yes" that the application was being made within 21 calendar days of dismissal. The F2, including attachments, comprised fourteen pages.

[17] On 6 January 2021, aware that this was the last day allowed for filing the application, Mr Livesey contacted the Commission's inquiry line and asked whether he could file the application by facsimile. He was informed by a national inquiries officer of the Commission that faxed applications were permitted. He was given the fax number for the South Australian registry. Mr Livesey did not consult the Commission web site.

[18] That day, 6 January 2021, Mr Livesey went to Officeworks at Trinity Gardens. He asked a staff member to fax the F2 form to the fax number he had been supplied by the Commission. He was given a receipt by Officeworks which indicated that fourteen pages had been faxed on 6 January 2021 at 3.11pm.[2]

[19] On 8 January 2021 Mr Livesey required hospitalisation. He was discharged on 13 January 2021.

[20] On 14 January 2021 Mr Shigrov telephoned Mr Livesey to inquire about the status of his application. Mr Livesey, having not been notified of next steps concerning the application, telephoned the Commission. He was advised by an officer of the Commission that no record existed of the application having been received though the fax number he recounted was correct. Mr Livesey was advised that he should re-lodge the application with the Commission via email and also obtain evidence that it had been faxed on 6 January 2021 (in which case that date may become the lodgement date).

[21] Mr Livesey then informed Mr Shigrov of the possible confusion as to whether the faxed application had been received. Mr Livesey advised Mr Shigrov, and Mr Shigrov agreed that a direct approach should be made to the Employer to advise of the unfair dismissal claim and make a settlement proposal.

[22] On 15 January 2021 Mr Livesey went back to Officeworks Trinity Gardens and sought evidence that the fax on 6 January 2021 had in fact been sent to the Commission's fax number. At about 1.55pm that day, Officeworks Trinity Gardens provided Mr Livesey with a record of a fax having been sent to the Commission's fax number at 3.11pm on 6 January 2021.[3]

[23] Later that afternoon, on 15 January 2021, Mr Livesey sent (by email) a settlement proposal to the Employer.[4] His email concluded:

"In the event that the matter is settled I shall file a Notice of Discontinuance of the unfair dismissal matter."

[24] On 18 January 2021 the Employer and Mr Livesey communicated by email. At 11.12am that day the Employer advised:[5]

"I note that you have made reference to an unfair dismissal application in your email. At this point in time we have not received any notification from the Fair Work Commission of an unfair dismissal application. It would be appreciated if you could forward us a copy of the application..."

[25] At 12.48pm that day, 18 January 2021, Mr Livesey responded:

"Please find attached a copy of the Unfair Dismissal Claim I filed with the Fair Work Commission on 6 January 2021..."

[26] Mr Livesey attached the F2 form together with the transaction receipts he had obtained from Officeworks.

[27] Later that same afternoon, 18 January 2021, the Employer replied:[6]

"We appreciate that Robert may have a different view and that it is his right to pursue that view. As he has filed a claim, we feel that a discussion about the merits of his claim and any possible commercial resolution is best facilitated through the FWC conciliation process."

[28] The next day, 19 January 2021, Mr Livesey emailed the F2 application dated 6 January 2021 to the Commission under cover of an email which read:[7]

"On 6 January 2021 I filed an Unfair Dismissal Application Form F2. I was provided with a facsimile telephone number for the Commission in Adelaide by calling the Commission and I forwarded the Application by facsimile to 84106205 from Office Works. When both I and the Applicant had not received any correspondence or contact from the Commission last week, I called the Commission to enquire whether the Application had been received. I was advised that whereas the Application had been faxed to the correct facsimile telephone number there was no record that it had been received. A request was made that I forward evidence that the Application had been forwarded by facsimile on 6 January 2021 and to provide a copy of the Application by email. Attached is a copy of the Application Form F2 which as you will note was forwarded by Office Works on 6 January 2021."

[29] On 20 January 2021 the Commission contacted Mr Livesey acknowledging receipt of the F2 application on 19 January 2021.[8]

[30] The Employer was then served with the application by the Commission on 22 January 2021. Both Mr Shigrov and the Employer were advised of the need for an extension of time and given directions related thereto.

[31] Mr Shigrov says that an extension of time should be granted for the following reasons:

• he acted promptly after his dismissal to instruct his representative to prepare and file an unfair dismissal claim;

• his representative acted on information supplied by the Commission and took all reasonable steps to send his unfair dismissal application to the Commission via its South Australian facsimile number twenty one (21) days after he was dismissed;

• he and his representative believed in good faith that the application had been faxed and the fax had been received on 6 January 2021;

• the delay in receiving his application was due to issues related to the Commission's fax service, and not caused by any action on his or his representative's part;

• his representative followed up the status of his application when it became apparent to he and his representative that there had been no contact from the Commission;

• the Employer was advised of the application by his representative two days after it became apparent that the application had not been received by the Commission, and it was then sent to the Employer by his representative;

• the Employer declined to discuss settlement outside of the processes of the Commission once the Employer had received the application from his representative; and

• there is no prejudice to the Employer should an extension be granted.

[32] Key Tubing & Electrical submit that there are no exceptional circumstances justifying an extension of time. It contends:

• although there may have been, at the relevant time, a service failure of Commission's fax service Mr Shigrov nonetheless carries the onus to establish exceptional circumstances warranting an extension of time on his application and disputes the applicant's reliance on the receipt provided from Officeworks;

• Mr Shigrov's representative did not receive confirmation on 6 January 2021 that the document was successfully transmitted and, in the absence of this confirmation, it was unreasonable for the Applicant or his representative to assume it was successful;

• the delay in the period 7 to 14 January 2021 (inclusive) is not reasonably explained because Mr Shigrov did not follow up with the Commission or his representative and left the matter "in the hands of his representative"[9];

• the delay in the period 15 to 19 January 2021 (inclusive) is not reasonably explained because his representative had been advised by the Commission on 14 January 2021 to re-send the application this time by email, and this was not done for a further five days until 19 January 2021; and

[33] Section 394(3) of the FW Act provides:

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

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

(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."

[34] Mr Shigrov's application can only proceed if he can establish that "exceptional circumstances" exist within the meaning of section 394(3).

[35] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[10]

[36] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[11] A decision whether to extend time under section 394(3) involves the exercise of a discretion.[12]

[37] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:[13]

"[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."

[38] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.

[39] I now consider each of the factors set out in section 394(3).

[40] The reason for the delay in lodging an application is a factor that must be considered. The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[14]

[41] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[15]

[42] The period of the delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.[16]

[43] As Mr Shigrov's dismissal took effect on 16 December 2020, the 21-day statutory period expired on 6 January 2021. The application having been officially recorded as received (via email) on 19 January 2021, it is thirteen days out of time.

[44] The evidence clearly establishes, and I have found, that Mr Shigrov's representative took action on 6 January 2021 to lodge the application by facsimile. Had this been successfully done (in the sense of the facsimile having been received) it would have been filed on the 21st day and thus be within time.

[45] The first explanation for the delay is that, until 14 January 2021, Mr Shigrov genuinely believed that his representative had lodged the application in the Commission within time on 6 January 2021.

[46] This explanation is credible.

[47] The actions taken by Mr Shigrov's representative on 6 January 2021 were considered and taken in good faith. There was no material representative error.

[48] The failure that caused the application not to be lodged on 6 January 2021 was not a failure by Mr Shigrov or his representative. Given the Officeworks receipts, it was a failure in receipt of the fax, not its sending. That failure was a consequence of the Commission's South Australian fax number (the number supplied to Mr Livesey by the national inquiries line) being inoperative at the time.

[49] I do not accept the submission by the employer that Mr Shigrov's representative did not use the best available method of lodgement. It matters not that email or online lodgements may be more common or (in some instances) more reliable. Lodgement by facsimile was a lawful method of lodgement. Mr Livesey was acting on information supplied by the Commission that applications could be lodged in that form using the fax number he was supplied. The Fair Work Rules 2013 expressly provide for lodgement by facsimile.[17] He retained the receipt provided by Officeworks, and sought and obtained further evidence of the transmission when it became apparent eight days later that the facsimile had been sent but not received.

[50] It is true that Mr Livesey could have (but did not) consult the Commission web site, and that (had he done so) may have seen a notice that the South Australian fax service was temporarily interrupted (but, confusingly, a fax number was still stated). In circumstances where Mr Livesey pro-actively telephoned the Commission on 6 January 2021 to obtain the information he sought, his failure to consult the web site was not representative error.

[51] The second explanation for the delay relates to the first delay period between 7 January 2021 and 14 January 2021.

[52] The explanation for delay in this period is that not only did Mr Shigrov and his representative believe that the application had already been filed, but that Mr Shigrov's representative was hospitalised for five of those eight days.

[53] This too is a credible explanation for the first period of delay. Mr Livesey could not have been reasonably expected to follow up the matter whilst hospitalised.

[54] I do not accept the Employer's submission that Mr Shigrov was at fault for leaving the matter in the hands of his representative and not himself following up the matter. The eight day period since the lodgement attempt on 6 January 2021 was not so inordinate that a lay person, unfamiliar with the Commission processes, should have taken steps in their own right to ascertain the status of their application.[18] In any event, it was on the eighth day that Mr Shigrov did just that - he initiated contact with Mr Livesey, which led to the unwelcome news on 14 January 2021 that the faxed application had not been received.

[55] I now turn to the second period of delay - the five days from 14 January 2021 to 19 January 2021.

[56] The explanation for the delay is two-fold. That Mr Livesey was obtaining what proof he could from Officeworks that the fax had been sent on 6 January 2021, and that Mr Shigrov, through his representative, was taking the issue up directly with the Employer.

[57] It is a fair criticism advanced by the Employer that the Applicant's representative did not immediately send the F2 application by email on 14 January 2021 after this had been suggested by an officer of the Commission and after he had been advised that the Commission did not have a record of receiving his facsimile on 6 January 2021.

[58] However in this period neither Mr Shigrov nor Mr Livesey were inattentive to the matter. They decided to pursue direct communication with the Employer whilst at the same time try to find evidence of the 6 January 2021 fax transmission so as to avoid the need to refile and seek an extension of time.

[59] Whilst an abundance of caution could (and should) have been exercised to also immediately send the suggested email (with the application) on 14 January 2021, these consideration and the subsequent actions taken in this five day period provide an explanation that has a rational basis. The Officeworks email transmission details were obtained, and three email interactions across the 15 and 18 January 2021 period then occurred with the Employer. Mr Livesey was upfront and honest with the Employer about his belief that an unfair dismissal application had already been made on 6 January 2021. He sent the application to the Employer on 18 January 2021, one day before he (re)filed it in the Commission.

[60] The application was filed (re-sent this time by email) the day after the Employer advised that it preferred to deal with the matter via the Commission process.

[61] For these reasons the explanation for the delay, considered overall, is credible and weighs clearly in favour of an extension of time.

Awareness of the dismissal taking effect (section 394(3)(b))

[62] Mr Shigrov was aware of his dismissal on 16 December 2020. He was neither confused about the date of dismissal nor the reason for dismissal.

[63] In these circumstances, this is a neutral consideration.

Action taken to dispute dismissal (section 394(3)(c))

[64] Mr Shigrov took prompt action to ascertain his rights and formed a view upon advice that he considered himself to have been treated unfairly at least in view of his length of service.

[65] He did not however communicate with the Employer after his dismissal, preferring (on advice) to wait until his final payment was received before instructing on making a claim.

[66] Relevantly however, his representative did open dialogue with the Employer on 15 January 2021, four days before the application was lodged and received.

[67] In these circumstances, this is a neutral consideration.

[68] The Employer did not advance any specific prejudice should an extension be granted. A claim would have to be responded to, involving time and cost. The nature of prejudice in this matter is not unique in any particular respect.

[69] However, the absence of prejudice would not itself be a reason to grant an extension.[19]

[70] In these circumstances, this is a neutral consideration.

[71] The merits of Mr Shigrov's application is likely to concern issues of conduct and competing allegations and versions of events.

[72] I note the Employer submission that the case is not strong. The extent to which misconduct allegations are disputed is unclear. Some material filed by Mr Shigrov accompanying his application suggests that some of the conduct alleged by the employer may not be in dispute. If it is not disputed, there could well be a valid reason found. However, the application by Mr Shigrov advances the proposition that 'the punishment did not fit the crime'. This notion is relevant to potential issues of harshness.

[73] Whilst on this very preliminary assessment Mr Shigrov's case does not appear strong, it is not hopeless. Simply because an application does not have strong prospects is not a basis to refuse an extension of time if the overall circumstances are exceptional. Given this, the merits of the application weighs slightly (but only slightly) against an extension of time.

Fairness between persons in similar position (section 394(f))

[74] This factor does not arise in this matter.

[75] The explanations for the delay are, considered overall, reasonable.

[76] Moreover, and fortuitously, the failure of a facsimile service is an unusual circumstance.

[77] Having regard to the factors in section 394(3) of the FW Act, I am satisfied that Mr Shigrov has met the onus of establishing exceptional circumstances warranting an extension of time.

[78] I am also satisfied that it is appropriate to exercise the discretion to extend the time. There is no particular prejudice to the employer in doing so. Mr Shigrov has been diligent in seeking to pursue his application. There is no objective basis on which it can be concluded that Mr Shigrov has acted unreasonably or with indifference to pursuing the grievance he holds about his dismissal.

[79] In the context of a 21-day statutory time limit, the period of delay (thirteen days) is considerable. However, it would be patently unfair to deny Mr Shigrov the opportunity for conciliation and, if necessary, arbitration of his unfair dismissal claim simply due to the failure of the Commission's facsimile service.

[80] One further consideration weighs in favour of exercising the discretion. In its response to Mr Shigrov's representative on 18 January 2021, the Employer adopted the position (as it was entitled to) that any settlement discussions should be conducted via the formal conciliation processes of the Commission. Whilst the Employer expressed this view at a time when it believed an application had (based on Mr Livesey's intimation) already been filed, it remains the case that should time not be extended the very process the Employer has expressed a willingness to participate in would be unavailable to Mr Shigrov or the Employer should time not be extended.

[81] There being exceptional circumstances for the delay in the filing of application U2021/485, the time for lodgement is extended so as to permit the application to have been made by 19 January 2021.

[82] An order[20] giving effect to this decision is issued in conjunction with its publication.

[83] I also issue a direction in this matter. That direction is that the application be referred to Member Assisted Conciliation in advance of further directions for hearing and determination being issued.

[9] Form F3 Employer response lodged 29 January 2021

[10] Smith v Canning Division of General Practice [2009] AIRC 959

[11] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

[12] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

[13] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]

[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288, at [35]-[45]

[15] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288

[16] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

[18] Wait v B & K Bulk Haulage [2021] FWC 387 at [47]

[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

[20] PR727081

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