[1] Mr Van Hang Truong (the 'applicant') was dismissed from his employment as a motor mechanic by Elawar and Sons Mechanical Repairs (the 'respondent') on 23 May 2012. He had been employed by the respondent for eleven years. The applicant filed an application, pursuant to s 394 of the Fair Work Act 2009 (the 'Act'), seeking relief from his alleged unfair dismissal. The application was filed on 7 June 2012. The respondent raised a number of jurisdictional objections to the application being determined by Fair Work Australia (FWA). These objections included that the applicant:

● was not further engaged due to a shortage of work.

[2] These objections need not be further considered at this point, as there is another fundamental jurisdictional issue which must be determined as a preliminary matter. As will be apparent from the agreed date of dismissal, the application for an unfair dismissal remedy, was filed one day outside the fourteen day statutory time limit, specified in s 394(2) of the Act. The applicant seeks an extension of time for the filing of his application, in accordance with the discretionary powers of FWA to do so, pursuant to s 394(3) of the Act. These powers are expressed as follows:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

[3] At the outset, it is relevant to note that the applicant does not communicate well in English either verbally or in writing, and this difficulty may be seen as a reason for a number of preliminary problems with the preparation of this case. However, just as relevantly, at the hearing on 5 November 2012, both parties were legally represented.

[4] Written statements were provided by the applicant and Mr Sam Elawar (the proprietor of the respondent). However, both statements deal primarily with the applicant's employment history and the circumstances surrounding the termination of the applicant's employment. For present purposes, the only relevant part of the applicant's statement is in paras [12]-[13] as follows:

'12. I was not aware of the 14 days limit to lodge an Application for Unfair Dismissal. On 5 June 2012, I requested my neighbour, Steve to contact Fair Work Ombudsman on my behalf as I am not fluent in English. Steve and I attended the local library to print an application form as I do not have a printer or computer machine.

13. On 6 June 2012, through the assistant of Steve, I completed the Application for Unfair Dismissal and lodge to FairWork Australia. I was advised that FairWork Australia received my application on 7 June 2012.'

[5] Mr Elawar's statement did not deal with the 'out of time' issue at all and was not relied on. However, both parties provided written submissions on the issue.

[6] Mr J Truong, solicitor, relied on the decision of Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394 ('Joy Manufacturing') and submitted that, despite the application being one day late, the applicant had been making a bona fide attempt to lodge his application. This reason constituted 'exceptional circumstances'.

[7] Mr Truong further submitted that there was no prejudice to the respondent by a single day's delay in filing the application. Mr Truong said the applicant did not own a computer or have internet access and so he had to ask a friend to help him contact the Fair Work Ombudsman, and to attend a local library to print the F2 Form. He has very poor English skills as demonstrated by the spelling and grammar in the F2. Mr Truong said that the applicant was simply unaware of the 14 day time limit for filing his application.

[8] Mr A Luong, solicitor, referred to Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 ('Nulty') and submitted that there were no 'exceptional circumstances' evident in this case. Even if the applicant was ignorant of the fourteen day time limit, he obtained the F2 application on 5 June, but did not file it until 7 June. There was no explanation for this delay.

[9] Further, Mr Luong submitted there was no merit in the substantive application as the applicant was only ever employed as a casual from time to time. He had worked to repay loans made to him by the respondent and had left the business voluntarily. He had been abusive to Mr Elawar and had taken the respondent's property. This later matter had been reported to the Police.

[10] In oral submissions, Mr Luong added that ignorance of the law is not an 'exceptional circumstance'. Moreover, the evidence was the applicant was aware of the law and ignored it. That cannot be an 'exceptional circumstance' warranting the exercise of the Tribunal's discretion under s 394(3) of the Act.

[11] The oft-quoted authority as to the meaning of 'exceptional circumstances' under the relevant provisions of the Act is that found in Nulty, where the Full Bench of FWA said at para [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.'

See: also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251

[12] In determining whether 'exceptional circumstances' exist in a particular case sufficient to permit a finding that time for the filing of an unfair dismissal application should be extended, FWA is required to take account of the various matters under s 394(3). It is to those matters which I now turn.

Reason for the delay (s 394(3)(a))

[13] As will be plain from the limited evidence and submissions advanced by the applicant for the delay in filing his application, the main reason for the delay was because he was unaware of the 14 day time limit. This reason, particularly when it appears to be the primary reason, is not, in my opinion, sufficient to constitute an 'exceptional circumstance'. So much so is evident from the following passage in Nulty where the Full Bench said at para [14]:

'[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.'

[14] The applicant also claims that his lack of fluency in English and his inability to access internet or other computer facilities were reasons for the delay. I am unable to conclude that either of these reasons constitute 'exceptional circumstances'. This is particularly so given that the applicant sought assistance from a neighbour in contacting the Fair Work Ombudsman (FWO) and attending a local library with him to print the F2 on 5 June 2012. There was no explanation why he waited thirteen days to take these steps and then took a further two days to lodge his unfair dismissal application. I would wish to observe that not every dismissed employee is fluent in English. Nor does every employee have immediate access to computer facilities. I do not see how these factors produce a situation which is 'out of the ordinary, unusual, special or uncommon.'

[15] Mr Truong submitted that the applicant had been making a bona fide attempt to lodge his application. However, this is not the statutory test for determining an 'out of time' application under the Act. In any event, Mr Truong's reliance on Joy Manufacturing is misplaced. In that case, His Honour Lawler VP accepted the applicant's evidence that he had been making bona fide, but unsuccessful, attempts to lodge his unfair dismissal application, online through the FWA website, prior to the expiry of the 14 day time limit. That is not the situation here and, consequently, the circumstances in Joy Manufacturing are not analogous to this case.

[16] There is no dispute that the applicant was aware that he had been dismissed on 23 May 2012 (s 394(3)(b)). The first action taken by the applicant to dispute his dismissal was the preparation of his application on 6 June and its lodgement on 7 June 2012 (s 394(3)(c)). I note that contact with the Fair Work Ombudsman was initiated on 5 June 2012 concerning the applicant's claim of being underpaid.

[17] I consider the prejudice to the employer in this case is a neutral factor (s 394(3)(d)). I would add that the mere fact there may be little or no prejudice to the employer does not, of itself, constitute an 'exceptional circumstance' and would, in most cases where the delay is not lengthy, be a neutral factor. That is so in this case.

[18] As to the merits of the application (s 394(3)(e)), it seems to me from the applicant's own filed material, that his real grievance with the respondent is a claim of underpayments stretching over the eleven years of his employment and admissions by him of receiving and accepting cash payments without payslips. If this arrangement was as he described, then there may be other ramifications for both the respondent and the applicant. In any event, if these claims of underpayment are of substance, they should be appropriately referred to the Fair Work Ombudsman for investigation.

[19] Absent any further evidence, I am unable to conclude, nor is it necessary for me to conclude, that the applicant has reasonable prospects of success with his claim. In addition, I note that, understandably, there has been no response by the applicant to the other three jurisdictional objections of the respondent I referred to in para [1]. Finally, subsection (f) of s 394(3) is not relevant to this application.

[20] I have not been satisfied that the applicant has established that the reasons for the delay in filing his unfair dismissal application, outside the fourteen day statutory time limit set by s 394(2) of the Act, constitute 'exceptional circumstances'. There is nothing in the matters discussed above relevant to subsections (a)-(f) of s 394(3) which could be characterised as being unusual, extraordinary, or special within the ordinary meaning of these words or as they are to be read in the context of what constitutes 'exceptional circumstances' under the statutory scheme. Accordingly, the application must be dismissed. An order to that effect will accompany the publication of this decision.

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