Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application for an extension of time - application refused

• [1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]

• [2] This decision concerns whether I should exercise my discretion to allow Ms Sxa Fang Chong a further period for her unfair dismissal application (Application) to be made against SSM International Pty Ltd (SSMI or the Respondent).

• [3] Ms Chong has lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with SSMI which her form F2 Unfair Dismissal Application advised took effect on 15 July 2022.

• [4] The application was lodged on 14 August 2022, and as such was made nine days outside of the 21-day time limit provided for in the Act.

• [5] On 5 September 2022, the Applicant sent an email to Vice President Catanzariti's Chambers outlining reasons why her application was lodged late.

• [6] On 9 September 2022, the matter was allocated to my Chambers, at which point I issued directions and advised that the extension of time issue would be considered at a telephone conference on 28 September 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. The Applicant was given a further period to lodge any submissions and evidence in support of her position. The Applicant chose to rely on the information contained in the email of 5 September 2022.

• [7] On 14 September 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal took effect on 15 July 2022 and pressed the jurisdictional objection that the application had been lodged out of time. The Respondent did not lodge any materials outside that contained in the form F3 Employer Response.

• [8] A Hearing was conducted by way of telephone conference on 28 September 2022. A sound file record of the telephone conference was kept. Ms Chong represented herself at the Hearing, whilst Ms Shavili Mishra represented the Respondent.

• [9] Given that both parties were unrepresented, I determined to conduct the Hearing by way of determinative conference.

• [10] Ms Chong gave evidence at the Hearing and was cross-examined. Her position is summarised as follows:

• Ms Chong was dismissed on 15 July 2022 and was aware of the dismissal on the same day.

• Ms Chong's first priority after her dismissal was to find new employment as soon as possible, and only focused on job applications for the first one or two weeks after being dismissed.

• Ms Chong also researched the law and was aware by the tenth day after her dismissal that a time limit applied.

• On 2 August 2022, Ms Chong emailed the Respondent about her concerns regarding underpayment of wages and advised that if the matter was not resolved within two days, she would approach the Fair Work Ombudsman.

• On 4 August 2022, the Ms Chong emailed the Respondent and advised that she would file a complaint if she was not paid the outstanding amounts.

• In the evening of 4 August 2022, Ms Chong emailed both "brisbane@fwc.gov.au" and the Fair Work Ombudsman. The content of the email sent to the Commission's Brisbane Registry was filed as evidence. The email is a complaint solely in relation to alleged underpayment of wages and/or superannuation payments and does not contain anything that could be considered a complaint of unfair dismissal.

• Ms Chong was advised by the Fair Work Ombudsman on 8 August 2022 that if she wanted to lodge an unfair dismissal application, it should be lodged with the Commission.

• Ms Chong appears to have created a Commission "account" on or about 11 August 2022 and submitted her application at 9.38pm on 14 August 2022, nine days outside of the statutory timeframe.

• Ms Chong advised she was experiencing feelings of frustration and anxiety after her dismissal, which affected her ability to lodge her application in time. The Applicant did not file any medical evidence to support a finding that these feelings were anything exceptional compared to the normal distress and anxiety associated with the termination of employment.

• [11] The Respondent did not make any submission in relation to the extension of time issue.

• [12] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are "exceptional circumstances", taking into account the following six criteria:

(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."

• [13] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[3]

• [14] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:

"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[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."

• [15] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[5] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[6] the Full Bench explained the correct approach by reference to the following example:

"[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."

• [16] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[7]

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), 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.

[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."

• [17] The delay in this matter is nine days. The Applicant took no action to dispute the dismissal until the Commission "account" was created on 11 August 2022. All of Ms Chong's previous communications with the Respondent and/or regulatory authorities were related to her view that she had been underpaid. Ms Chong prioritised looking for alternative work. Ms Chong's emotional state is accepted but does not appear outside the normal range of a person who has been dismissed.

• [18] There is extensive caselaw which confirms that the delaying of an unfair dismissal application whilst waiting for the payment of entitlements is not a valid reason for the delay.[8] It is also widely recognised that most employees who have lost their job seek alternative employment following their dismissal, and accordingly it is not considered a credible reason for the delay.[9]

• [19] I am not persuaded that the reasons put forward by Ms Chong for the late filing of her unfair dismissal application represent a valid reason for the delay.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

• [20] Ms Chong was aware of the dismissal on the date it occurred.

• [21] This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

• [22] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[10]

• [23] I find that the correspondence sent to the Respondent, as well as the enquiries with the Commission and the Fair Work Ombudsman on 4 August 2022, were not actions taken to dispute the dismissal. There was no action taken by Ms Chong to contest the dismissal other than the filing of this application. This factor weighs against a finding that there are exceptional circumstances warranting an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

• [24] Prejudice to the employer will weigh against granting an extension of time.[11] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[12]

• [25] There is no submission that the granting of an extension of time represents prejudice to the Respondent. This factor is considered a neutral consideration.

Paragraph 394(3)(e) - merits of the application

• [26] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

• [27] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[13] considered this criterion and said:

"[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."

• [28] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

• [29] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.

• [30] An Order[14] reflecting this decision will be issued.

[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6 - where a period of time 'is expressed to begin after a specified day' the period 'does not include that day').

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

[4] [2011] FWAFB 975.

[5] 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].

[6] [2016] FWCFB 349.

[7] [2018] FWCFB 3288 at [35]- [45].

[8] Coles Supermarkets Australia Pty Ltd v Alexander Tapier [2021] FWCFB 2559 at [25], Matthew Dakin v Farmgate MSU Pty Ltd [2022] FWC 1707 at [4].

[9] Sharon Jones v Bunnings Group Limited T/A Bunnings [2016] FWC 1954 at [20].

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

[13] [2016] FWCFB 6963.

[14] PR746313.

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