Fair Work Act 2009

s.394 - Unfair dismissal

Application for unfair dismissal remedy - application made out of statutory time frame - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Ms Samantha Kelsall (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

• [2] The Applicant submits that her employment with Kingston City Council (Respondent) was terminated with effect from 11 September 2023. 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 unfair dismissal application (application) was lodged at 6.29pm on 3 October 2023. If the Applicant was terminated on 11 September 2023, the last day to lodge the application was 2 October 2023, and was therefore lodged 1 day out of time. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

• [3] 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]

• [4] 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.

• [5] 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.

• [6] 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.

• [7] The Applicant submits in her Form F2 that her dismissal was communicated to her on 8 September 2023 during an interview where she was 'advised my employment was being terminated' and that there would be no chance of a different outcome. The Applicant submits that her dismissal took effect on 11 September 2023 when she received written confirmation of her dismissal.

• [8] The Respondent submits in their Form F3 that the Applicant's dismissal took effect on 8 September 2023 when she was advised that her employment was being terminated effective that day. On 11 September 2023, the Respondent confirmed the termination in writing, stating, inter alia, "it has therefore been determined that your employment with Council will be terminated, effective immediately 8 September 2023".

• [9] A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware.[3] Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[4]

• [10] If the dismissal took effect on 11 September 2023, the last day to lodge the application was 2 October 2023 and the application is therefore 1 day out of time. In light of the public holiday in Victoria on 29 September 2023, if the dismissal took effect on 8 September 2023, the application remains 1 day out of time.

• [11] Based on the evidence before me, I am satisfied that the Applicant was notified on 8 September 2023 that her dismissal would take effect immediately. On the material before me, I am satisfied that 8 September 2023 is the effective date of dismissal. Even if I am wrong and the dismissal took effect on 11 September 2023, the application remains 1 day out of time.

• [12] The delay required to be considered in section 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[5] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[6]

• [13] 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.[7]

• [14] The Applicant essentially relies on two reasons for the delay in filing her unfair dismissal application. First, the Applicant contends that she miscalculated the 21-day timeframe and did not include weekends and public holidays in her initial calculations. At hearing, she states that she first accessed the Commission website on or about 15 or 16 September 2023, and started to put together her paperwork on 18 or 19 September 2023, and believed she calculated the correct timeframe using business days.

• [15] Secondly, the Applicant contends that after receiving verbal confirmation of the termination of her employment, she was in shock, and due to financial concern and concern for her family's wellbeing, suffered a mental health episode. The Applicant contends that she was unable to get out of bed and function properly until on or about 15 or 16 September 2023 due to the 'extensive mental load' and was only able to complete her application once she was 'out of this state'.

• [16] The Respondent submits that consistent with continual prior determinations of the Commission and its predecessors, ignorance of timeframes and instances of illness are insufficient explanations for the delay, and taken individually or together, do not amount to exceptional circumstances.

• [17] In this case, I do not consider there to be an acceptable or reasonable explanation for the delay; Miscalculation of the required timeframe to lodge an application is not, without more, an exceptional circumstance.[8]

• [18] Whilst I am sympathetic to the Applicant's position and indeed any employee who suffers from the loss of their employment, I note that there is no medical evidence before the Commission as to the effect of the Applicant's mental condition on her capacity to file the unfair dismissal application on time. Further, on the Applicant's own submission at hearing, she was able to access the Commission website from on or about 15 or 16 September 2023 and complete her application from on or about 18 or 19 September 2023 but miscalculated the deadline to file her application.

• [19] I have considered the fact that the application was lodged one day late but, in this matter, I am inclined to agree with the comments of Deputy President Gostencnik in Ozsoy v Monstamac Industries Pty Ltd,[9] where the Deputy President makes the following observation:

"[21] The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional. The absence of an acceptable explanation for the delay weighs against the Applicant in this case."

• [20] In these circumstances, I do not consider these matters individually or together, to be an acceptable or reasonable explanation for the delay.

• [21] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

• [22] I have found above that the Applicant's dismissal took effect on 8 September 2023, and the Applicant was notified of her dismissal on that day.

• [23] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

• [24] 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.[10]

• [25] The Applicant submits that the only action she has taken to dispute her dismissal is the making of this application.

• [26] The Respondent submits that this consideration weighs against the granting of an extension of time.

• [27] As the Applicant has not taken any action to dispute the dismissal other than lodging an unfair dismissal application, in this matter I find this factor weighs slightly against exercising my discretion to allow the further period for the applicant to lodge her application.

• [28] 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.

• [29] The Respondent submits that the Applicant was dismissed for substantiated allegations of sexual harassment in accordance with its Sexual Harassment Policy.

• [30] The Applicant submits that the dismissal process was unfair, and her fate was already written before she had a chance to respond. Further, the Applicant submits that a number of allegations made against her were untrue and others were 'embellished upon'.

• [31] 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

• [32] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

• [33] In the present case, the Applicant states that the conversations she was punished for occur in the Respondent's workplace on a daily basis, and that they are 'part of the culture' and 'encouraged by senior leaders' with no intervention, and that the Applicant has had sexual comments made to her regularly. Further the Applicant states that during the meeting where she responded to the allegations made by the Respondent, several of the allegations were found to have occurred by other team members, who have yet to be 'spoken to about their behaviour'. The Applicant additionally submits that she is 'being made an example of and being punished without having the chance or ability to correct my behaviour'.

• [34] The Respondent submits that the Commission has refused to grant an extension of time for applicants in a range of circumstances and situations where they have filed outside the 21-day time limit, including recent situations where the application was filed one day out of time.

• [35] The Respondent further submits that the stated impact of the relevant issues upon the Applicant in the relevant context are not unique, unusual, or exceptional in nature, and that granting an Applicant an extension would be unfair to other applicants who have advanced similar submissions or were in similar circumstances and were not granted an extension of time. The Respondent submits this consideration should weigh against the granting of an extension of time.

• [36] Having regard to the submissions above, in all the circumstances and on the materials provided, I consider the issue of fairness neutral in this matter.

• [37] Having considered all of the factors set out in s.394(3) I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application, and there was no action taken to dispute the dismissal which weighs slightly against the granting of an extension of time. The remaining factors are neutral. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.

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

[3] Ayub v NSW Trains [2016] FWCFB 5500, [36].

[4] Foyster v Bunnings Group Ltd [2017] FWCFB 3923, [17].

[5] Long v Keolis Downer [2018] FWCFB 4109 at [40].

[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

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

[8] Jalil v BMD Constructions [2014] FWC 9357.

[9] Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479.

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

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