Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

• [1] An application by Mr Weijie Song (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) was lodged on 10 October 2022 (Application).

• [2] In the Application, the Applicant states that his employment with Hilltop Meats Pty Ltd (Respondent) was terminated with effect from 30 August 2022.

• [3] In its Form F3 Employer Response, the Respondent stated that the Applicant's employment was terminated with effect from 13 September 2022 and objected to the Application on the basis that it was lodged more than 21 days after the dismissal took.

• [4] Section 394(2) of the FW 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 Commission allows pursuant to s.394(3). If the dismissal took effect from 30 August 2022, the Application is filed 20 days outside the 21 day period. Alternatively, if the dismissal took effect from 13 September 2022, the Application is filed 6 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.394(3).

• [5] On 3 November 2022, and prior to the allocation of this matter to my chambers, the chambers of Vice-President Catanzariti sent correspondence to the Applicant advising that the Application appeared to be out of time and inviting the Applicant to provide any preliminary submissions. On 7 November 2022, the Applicant filed a preliminary submission setting out the reasons for the delay in filing the Application.

• [6] Following the allocation of the matter to my chambers, I issued directions giving both parties an opportunity to file any further materials in support of, or in opposition to, the Applicant's application for an extension of time.

• [7] The Applicant did not file any further materials. The Respondent filed two witness statements, a letter of termination, and two sets of email correspondence exchanged between the parties. The materials filed by the parties were consolidated into a Hearing Book and circulated to the parties.

• [8] The matter was heard before me on 12 December 2022 with the assistance of an interpreter.

• [9] For the reasons that follow, I decline to grant an extension of time under s.394(3).

• [10] The parties are in dispute about the date the dismissal took effect.

• [11] The Applicant submitted that his employment was terminated with immediate effect on 30 August 2022. In support of this submission, the Applicant relied on a letter of termination that was filed as part of the Application[1] which is dated 30 August 2022 and states that the Applicant's employment "will terminate effective immediately".

• [12] The Respondent submitted that it intended to terminate the Applicant's employment with immediate effect on 30 August 2022. However, during a meeting with the Applicant on 30 August 2022, it reconsidered its position and advised the Applicant that he would receive two weeks' notice of termination. The Respondent submitted that it provided an amended letter of termination[2] which was also dated 30 August 2022 and states the Applicant's employment "will terminate effective 13 September 2022".

• [13] The Applicant stated that he did not receive the amended letter of termination.

• [14] Irrespective of which date is accepted, an extension of time is required. Having regard to the materials before me and the submissions of the parties, I find that the date the dismissal took effect from was 13 September 2022.

• [15] This means the Application was filed 27 days after the date the dismissal took effect, and 6 days outside the 21 day period.

• [16] The FW 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.[3] 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.[4]

• [17] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.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.

• [18] 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.

• [19] 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.

• [20] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[5]

• [21] I now consider these matters in the context of the application.

• [22] The FW 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 an applicant's favour, however all of the circumstances must be considered.[6]

• [23] The Applicant submitted that there were 'two stages' to his 'application'. In the 'first stage' he was only concerned with alleged unpaid sick leave and annual leave entitlements and unpaid notice of termination. The Applicant initially made enquiries regarding these entitlements to the Fair Work Ombudsman before sending two emails to the Respondent on 27 September 2022.

• [24] The first email sent at 4:53pm on 27 September 2022[7] alleges underpayment of sick leave, annual leave, notice of termination and sought a payment equivalent to three weeks remuneration as compensation for unfair dismissal.

• [25] In the second email, sent at 5:54pm on 27 September 2022[8], the Applicant requested the following records:

• the Respondent's businesses legal name and ABN;
• the Applicant's start date;
• the Applicant's termination date and the reason for termination;
• job description and classification under the award;
• employment status (full-time, part-time or casual);
• records of the hours worked (including date/day of the week, start and finish times and breaks);
• pay slips or other records of pay (including loadings, penalty rates, overtime, and other amounts);
• any deductions from pay;
• leave records showing leave accrued and taken (both paid and unpaid).

• [26] The Respondent provided a response to both emails on 5 October 2022.[9]

• [27] Upon receipt of the Respondent's responses, the Applicant made further enquiries with the Fair Work Ombudsman in relation to the 'second stage' of his 'application' being an application for unfair dismissal. The Applicant stated that the Fair Work Ombudsman advised him that they could not assist him with an unfair dismissal application and that he should contact the Fair Work Commission. By this time, the 21 day period had already passed.

• [28] The Applicant submitted that while he was aware that unfair dismissal claims could be made, he did not know the correct procedure to make an application and that he filed the Application as soon as he became aware of the correct process.

• [29] Having regard to the materials before me and the Applicant's submissions, the Applicant delayed the filing of the Application while he pursued the alleged underpayment of entitlements. There is no reason why the Applicant could not have filed the Application while simultaneously pursuing the alleged underpayment of entitlements.

• [30] The delay in filing an unfair dismissal application whilst pursuing an alleged underpayment of wages or entitlements is not an acceptable or reasonable explanation for the delay.[10]

• [31] In relation to the Applicant's lack of knowledge as to the correct procedure for the filing of an unfair dismissal application, I do not accept that constitutes an acceptable or reasonable explanation for the delay.

• [32] It is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[11]

• [33] A simple internet search would have pointed the Applicant to the Commission's website which has a range of resources to assist self-represented litigants including information about who can apply and the process for lodging an application.

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

• [35] The Applicant had the full period of 21 days to lodge the Application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [36] The only action taken by the Applicant to contest the termination of his employment, other than the filing of the Application, was the email sent to the Respondent on at 4:53pm on 27 September 2022.

• [37] Although the focus of this correspondence related to the alleged underpayment of entitlements, the Applicant did seek a payment equivalent to three weeks remuneration as compensation for unfair dismissal. I am satisfied that constitutes action to dispute the dismissal. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.

• [38] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of an extension of time. I therefore consider this to be a neutral consideration.

• [39] The FW Act requires me to take into account the merits of the application in considering whether to extend time. It is not possible to make any firm or detailed assessment of the merits, as there is insufficient evidence before me. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

• [40] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [41] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [42] I have found that the matter set out at s.394(3) (c) weighs in favour of a conclusion that there are exceptional circumstances, while the matters set out at s.394(3)(d), (e) and (f) are neutral, and s.394(3) (a) and (b) weigh against a conclusion that there are exceptional circumstances.

• [43] Having regard to these findings, and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

• [44] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3).

• [45] Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.

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

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

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

[10] 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]; Sxa Fang Chong v SSM International Pty Ltd [2022] FWC2591 at [18].

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

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