Fair Work Act 2009

s.394 - Unfair dismissal

• [1] On 3 November 2023, Trudi Ridge (the Applicant) applied for an unfair dismissal remedy having been dismissed from Morrgul Pty Ltd (the Respondent) on 14 July 2023. The Respondent objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The application had been made 91 days outside of that statutory period. This decision deals with that objection.

• [2] Section 396 of the Act provides that the Fair Work Commission (the Commission) must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three preliminary matters are not presently relevant.

• [3] It is not contested that the unfair dismissal application was made out of time. For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

• [4] The Applicant contends that the circumstances are exceptional based on her having initially made an unfair dismissal application in the Western Australian Industrial Relations Commission (WAIRC). The Applicant submitted that she had received legal advice that the Respondent was not a national system employer (it was a state employer) and therefore the correct jurisdiction in which to bring an unfair dismissal application was the WAIRC.

• [5] The Applicant filed her unfair dismissal application in the WAIRC on 4 August 2023. After an unsuccessful conciliation conference, the WAIRC turned its attention to the jurisdictional issue of whether the Applicant was protected from unfair dismissal. The WAIRC determined the application on the papers, publishing its decision on 24 October 2023. It found that the Respondent was a trading corporation and therefore it lacked jurisdiction to determine the Applicant's unfair dismissal application.[1]

• [6] On 3 November 2023, the Applicant made an unfair dismissal application under s 394 of the Act. The matter was allocated to my Chambers on 7 December 2023, and directions were issued regarding the extension of time issue later that day.

• [7] The directions issued were comprehensive and included hyperlinks to template documents for the Applicant to use. Included in those template documents was the template document titled 'Applicant's Outline of Argument: Extension of time'. However, the Applicant chose not to complete that document or to address the factors the Commission said it would consider in determining whether there were exceptional circumstances, factors that had been clearly identified in the directions issued. Whilst the Respondent urged that the matter be determined in the absence of a hearing, I considered that such approach was not appropriate given the dearth of material relevant to the issue to be determined.

• [8] At the start of the hearing, I informed the parties that the issue to be determined was whether the Applicant's circumstances are exceptional, and whether it is fair and equitable for an extension of time to be granted. The parties were again directed to address the factors in s 394(3) of the Act. The Applicant was provided the opportunity to provide viva voce evidence with a view to addressing the factors in s 394(3). Furthermore, the Applicant was granted leave to rely upon a document she had filed with Chambers the day prior to the hearing - a document that outlined the submissions she had filed in respect of the unfair dismissal application before the WAIRC. Essentially, however, the Applicant only addressed the reason for the delay. The Respondent opted not to call any witnesses.

• [9] Shortly stated, I am not satisfied that there are exceptional circumstances. As detailed in my reasons that follow, the Applicant has, in my view, provided plausible reason for part of the delay. However, having been notified of the WAIRC's decision, I do not consider that the Applicant was seized with a sense of urgency to ensure her application was made in this Commission in a timely manner. The decision in the WAIRC was published on 24 October 2023 and yet it was not until 3 November 2023 she made her application in this jurisdiction.

• [10] The Applicant's account regarding this latter part of the delay was not detailed in her written materials and when asked about it at hearing, her evidence lacked specificity regarding the date on which she had access to a telephone or internet to make her application. No further evidence, apart from her oral testimony, was adduced to support her contention of hardship during this period. All other factors are neutral.

• [11] Consideration also turns to whether it is fair and equitable that time should be extended. I have concluded this not to be the case in light of my above findings. Accordingly, I decline to grant the Applicant an extension of time and therefore her application for an unfair dismissal remedy must be dismissed. An Order[2] to that effect issues concurrently.

• [12] The broader context giving rise to the dispute has been gleaned from the materials tendered into evidence and the Applicant's viva voce evidence.

• [13] The Respondent employed the Applicant in the role of Business Development Manager, working four days a week from 31 January 2022. Prior to her role with the Respondent, the Applicant had held a full-time position as a teacher.

• [14] The Applicant said that during the months of May and June 2023, she received four warning letters that discussed timesheet inaccuracies.[3]

• [15] A meeting was held on 14 July 2023, in which the Chief Executive Officer (CEO) of the Respondent advised the Applicant that the organisation was terminating her employment due to unsatisfactory performance and not correctly submitting her timesheets despite numerous warnings.[4]

• [16] In respect of the purported poor performance, the Applicant explained that:

a) completion of timesheets was not to provide salary but was for the purpose of billing hours against contracts (presumedly client/customer contracts);

b) the CEO changed the way in which she was to charge clients and bill for her hours;

c) the CEO's advice to her, both written and verbal, changed in respect of how timesheets were to be populated;

d) she had never participated in a performance review with the CEO and no discussions relating to performance, apart from the incorrect submission of timesheets, had taken place;

e) the CEO did not provide guidance on how to populate the timesheets; and

• f) she had not been provided with access to the Respondent's Funding, Funders and Stakeholder database until 9 July 2023 (a database where reports and contracts for projects are recorded and provide the base for recording billable hours) and had, in addition, advised the CEO that she had added content to her timesheet but could not provide billing as she did not understand the parameters for the client job and how it would align.[5]

• [17] Having been dismissed from her employment on 14 July 2023, the Applicant submitted she had met with, and received advice from, Maurice Blackburn Lawyers.[6] That advice was said to have been premised on information provided to the ACNC reporting period for the Respondent from 1 July 2021 to 30 June 2022.[7] The Applicant submitted she was advised that the Respondent appeared not to be a 'trading and financial corporation'.

• [18] As noted, the Applicant subsequently made her application to the WAIRC on 4 August 2023 and after an unsuccessful conciliation conference, directions were issued on 22 August 2023 for the preliminary determination of whether the Respondent was a national system employer pursuant to s 14(1)(a) of the Act.[8] On 24 October 2023, the WAIRC dismissed the application for want of jurisdiction.[9]

• [19] The Applicant gave evidence that in April 2023 she had a discussion with the CEO about proposed deductions from her salary.[10] It was in that context that the CEO advised her that the Respondent was a state-based employer.[11]

• [20] There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[12]

• [21] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains a discretion to grant or refuse an extension of time.[13] Whilst Nulty considered the general protections provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [22] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[14] 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 can be considered exceptional.[15]

• [23] In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

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.[16]

Reasons for the delay in filing the application

• [24] Consideration turns to whether the Applicant has provided a credible reason for the whole of the period that her application was delayed.[17] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[18] It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.[19]

• [25] The Applicant gave evidence that she had been informed by Maurice Blackburn Lawyers that the Respondent was not a national system employer and that the WAIRC was the correct jurisdiction in which to lodge her application.

• [26] There have been several decisions of this Commission that have examined circumstances where representative error has factored into the unfair dismissal application being lodged late. In those cases, it is accepted that the conduct of the applicant is to be examined. In McConnell v A & PM Fornataro, a Full Bench decision that considered an out of time application under s 365 of the Act, but is apposite for present purposes, the majority stated:

Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

"(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted."[20]

• [27] The Applicant submitted that her application was filed late with the Commission due to issues in establishing the correct jurisdiction for an employee of the Respondent. The Applicant submitted that the advice she received from both her legal advisor and the CEO indicated she was employed by an entity that was not a national system employer, and therefore she initially pursued her claim for unfair dismissal within the framework required by law for the WAIRC.

• [28] While the Applicant asserts having been advised she was employed by an entity that was not a national system employer, the evidence to support this proposition was solely premised on the Applicant's assertion of what she had been informed by the CEO in April 2023, and on her submission to the WAIRC of the legal advice she had received.

• [29] The Respondent submitted that it had been difficult to discern from the Applicant's materials the basis on which she contended that her circumstances were exceptional.

• [30] However, in respect to having erroneously made her initial unfair dismissal application in the WAIRC, the Respondent submitted that the letter of termination provided to the Applicant set out:

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at www.fairwork.gov.au.

• [31] The Respondent stated that the abovementioned reference in the letter of termination was clearly a reference to the federal system and not the WAIRC, and if the Applicant had contacted the Fair Work Ombudsman, it was sure that it would have indicated that the Commission was the appropriate jurisdiction.

• [32] The Respondent drew the Commission's attention to a payslip that it purports was emailed to the Applicant, as was the usual course during her employment. That payslip for the period 17 April 2023 until 30 April 2023 set out the Respondent's name, 'Morrgul Pty Ltd', and its Australian Business Number.

• [33] The Applicant claims that she did not receive the letter of termination notwithstanding having acknowledged that it was sent to her correct email address, and similarly contends that she did not receive the payslip for the abovementioned period. Again, the payslip had been emailed to the usual email address of the Applicant.

• [34] According to the Respondent, the Applicant's delay in bringing the matter on before the Commission was entirely due to the Applicant not making sufficient effort to appraise herself of the nature of the business that she worked for or, in the alternative, her lacking a basic understanding of the Respondent's business model.[21] The Respondent continued that the Applicant's role was to be an expert who advised small Aboriginal businesses on how to operate better within the confines of the law and on a profitable basis. This, said the Respondent, would require a basic knowledge of employee relations, financial reporting, contract management and taxation requirements.[22]

• [35] It has previously been expressed by this Commission that there is nothing exceptional about lodging an unfair dismissal application in the WAIRC when the application should have been lodged in the Commission.[23] However, the proposition should not be read as a carte blanche statement that all applications mistakenly lodged in the WAIRC are by their nature unexceptional. Much will turn on the facts of the matter.

• [36] The Applicant delayed making the application in the Commission, in part, because she considered the appropriate or correct jurisdiction was the WAIRC. That view had been informed by legal advice purportedly provided by Maurice Blackburn Lawyers. Whilst appreciative of the Respondent's criticisms in respect of the lack of direct evidence in respect of that legal advice, it strikes me that the Applicant was honest in her account that she had obtained legal advice from Maurice Blackburn Lawyers and had extracted part of that legal advice and placed it in her submissions to the WAIRC. Without levelling any criticism toward the Applicant and having heard her oral testimony, I am unconvinced that the Applicant was sufficiently equipped to have drafted the submissions to the WAIRC in the absence of having received legal advice. Further, having considered the submissions that the Applicant made to the WAIRC, it cannot be said that they were frivolous or implausible. It appeared that there was a legitimate issue regarding jurisdiction.

• [37] The Respondent contends that the Applicant could have made further enquiries about whether it was a national system employer and both her payslip and letter of termination included indicators that the Respondent fell within the federal jurisdiction. However, on balance I am persuaded that no fault lies with the Applicant from having relied upon the legal advice received and having not taken further steps to seek clarification regarding the jurisdictional issue at this time. Whilst the Respondent is and was incorporated at the relevant time and had in its letter of termination to the Applicant, referred the Applicant to the Fair Work Ombudsman, those factors are to be weighed against the information extracted from the Australian Charities and Not-for-Profits Commission reporting period for the Respondent and the legal advice received. In these circumstances, the purported analysis of the Respondent's trading activities as outlined in the Applicant's submissions to the WAIRC appears more compelling than the aforementioned indicators on the payslip and letter of termination, in respect of attempting to discern jurisdiction.

• [38] It is further observed that the Applicant's application filed in the WAIRC was filed inside of the statutory period set by Act for filing unfair dismissal claims in this Commission.

• [39] As the Deputy President stated in Welthy v J Factor Holdings Pty Ltd, '[i]t is not unusual for employees in Western Australia to confuse the WAIRC and Fair Work Commission'.[24] However, for the period of 5 August 2023 until 24 October 2023, I consider that there is a plausible reason for the Applicant's delay in making her unfair dismissal application in this Commission. In all the circumstances it was reasonable for the Applicant to wait until the issue of the WAIRC's jurisdiction was addressed by the WAIRC before she made the application currently on foot.

• [40] However, I do not consider the Applicant had a reasonable explanation for the delay in making the application after 24 October 2023 until the date the application was made. The unfair dismissal forms are not complex and do not require such a significant period in which to complete them. Furthermore, unfair dismissal applications can be made over the phone. In the materials filed in the lead up to the hearing, the Applicant did not address this period of delay. When questioned at hearing about this subsequent period, the Applicant gave evidence of not having access to a telephone and having to rely on a public library or friend to obtain access to the internet or phone. The Applicant was unable to specify the date on which she sought access to a telephone or internet, albeit it was apparent from her evidence that she had been able to access the WAIRC's decision on the date it was published or within a day or two of its publication.

• [41] Given the period that had passed since her dismissal, the making of an unfair dismissal application should have been approached as a matter of urgency and yet the Applicant's evidence as to why she had not acted promptly in making her application after being informed of the WAIRC's decision, is uncompelling. Aspects of the Applicant's evidence, that is where she had provided some of her evidence orally, were unconvincing. The Applicant's evidence that she had not received the payslip referred to in this decision and the letter of termination notwithstanding the Respondent having utilised the same email address (an email address verified by the Applicant at hearing), seems implausible. The Applicant spoke of the hardship associated with having not received a letter of termination. However, she adduced no evidence to show that she had enquired further with the Respondent or otherwise requested a further copy of the termination letter. These implausible aspects of the Applicant's evidence extended to the reasons given for the period of delay after the WAIRC's decision. The Applicant adduced no supporting evidence to substantiate her assertions of the difficulties encountered during that latter period of delay.

• [42] Whilst the Applicant has provided credible explanation for part of the delay, I am not satisfied that the Applicant had a reasonable explanation for the whole period of the delay. This factor therefore weighs against a finding that there are exceptional circumstances. In arriving at this conclusion, I have considered the delay as the period beyond the 21-day period. However, regard has also extended to the circumstances from the date the dismissal took effect.

Whether the Applicant became aware of the dismissal after it took effect

• [43] At all material times from the time the Applicant was dismissed until the date the unfair dismissal application was made, the Applicant knew she had been dismissed as of 14 July 2023, notwithstanding her assertion of having not received the letter of termination. I consider this to be a neutral factor.

• [44] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[25] I have considered all the evidence in this respect, including the lodgement of the unfair dismissal application in the WAIRC.

• [45] The Applicant took no steps to dispute the dismissal after it took effect until she filed her unfair dismissal application with the WAIRC.

• [46] Having considered the evidence and submissions of the Applicant and Respondent, I consider it to be a neutral factor.

• [47] I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted, and quiet correctly the Respondent makes that concession. I therefore consider this to be a neutral factor in the present case.

• [48] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

• [49] In Telstra-Network Technology Group v Kornicki,[26] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench 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.[27]

• [50] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to the applicant to lodge her application.[28] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded.

• [51] It is apparent from the materials of the Applicant and the Respondent that there is a factual dispute as to whether the Applicant was performance managed in respect of her timekeeping. Albeit it is obvious from the evidence that the Applicant had received multiple warnings about her failure to complete time keeping records and was aware of their significance in respect of allocating costs to certain projects or clients. However, understandably at this stage, it is unclear as to the training provided to the Applicant in respect of this task and, insofar as it is relevant, whether a performance management plan was instituted - whether orally or in writing. This factual dispute would warrant further exploration at hearing and the making of findings. It follows that it cannot be said the unfair dismissal application is 'without merit' and as such I consider this criterion to be neutral.

Fairness between the person and other persons in a similar position

• [52] The Deputy President in Morphett v Pearcedale Egg Farm considered this criterion and said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[29]

• [53] Similar to other factors, the parties did not address this factor. However, I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is not a relevant consideration in the circumstances of this particular matter and is therefore a neutral factor in determining whether to grant an extension of time.

• [54] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [55] Based on the evidence before me, the Applicant has not provided a satisfactory explanation for the whole period of the delay in making her application. The remaining matters I need to consider are otherwise neutral. In these circumstances, having considered all submissions, I am unconvinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.

• [56] The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed.

[1] Ridge v Morrgul Pty Ltd [2023] WAIRC 00832 (WAIRC Decision).

[2] PR769972.

[3] Witness Statement of Trudi Ridge; Digital Hearing Book, 54 (DHB).

[4] Applicant's outline of argument: merits, [5(a)]; DHB (n 3) 43.

[5] Applicant's outline of argument: merits, [5(c)]; DHB (n 3) 44.

[6] Applicant's Submissions in the WAIRC (Exhibit A1) (WAIRC Submissions).

[12] Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989, [21].

[13] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[16] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38] (emphasis in original).

[17] Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251; (2010) 197 IR 403, [17]-[18] 408-9.

[18] Henderson v Hoban Recruitment Pty Ltd [2016] FWC 5041, [10].

[19] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287; (2015) 246 IR 362, 366 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society [2016] FWCFB 349; (2016) 258 IR 110, 116 [29]-[31].

[20] McConnell v A & PM Fornataro [2011] FWAFB 466; (2011) 202 IR 59, 65 [35].

[21] Respondent's Outline of Submissions; DHB (n 3) 154.

[22] Respondent's Outline of Submissions; DHB (n 3) 154.

[23] Robertson v Zeugma Electrical & Communication Services Pty Ltd [2010] FWA 4525, [12].

[24] [2016] FWC 1978, [15] (emphasis added).

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

[26] (1997) 140 IR 1.

[28] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

[29] [2015] FWC 8885, [29].

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