Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision ( [2017] FWC 4019) of Commissioner Wilson at Melbourne on 2 August 2017 in matter number U2017/6436 - appeal against grant of extension of time - consideration of reason for the delay - appeal upheld - decision quashed - on a rehearing - application dismissed.

[1] On 14 August 2017, Woolworths Limited (Woolworths) lodged an appeal, for which permission is necessary, against a decision[1] (Decision) of Commissioner Wilson in which the Commissioner granted Ms Yu Duo (Lynda) Lin an extension of time under s.394 of the Fair Work Act 2009 (the Act) for the making of an application for an unfair dismissal remedy in accordance with Part 3-2 of the Act. In a decision made on 11 October 2017[2] (PTA Decision), we granted Woolworths permission to appeal and the hearing of the appeal was listed for 18 December 2017.

[2] Woolworths sought permission, under s.596 of the Act, to be represented by a lawyer at the hearing of the appeal. In compliance with Directions made by the presiding Member on 27 October 2017 (Directions), Woolworths filed and served a submission outlining why permission should be granted having regard to the grounds in s.596(2) of the Act. The Directions provided that if Ms Lin opposed the application of Woolworths for permission to be represented, she was to file and serve a submission to that effect by 5.00pm on 9 November 2017. Ms Lin did not do so. We were satisfied having regard to the complexity of the matter that the matter would be dealt with more efficiently if we allowed Woolworths to be represented by Mr Luke Connolly, solicitor. Accordingly, we exercised our discretion pursuant to s.596(2)(a) of the Act to grant permission for Woolworths to be represented by Mr Connolly in the appeal.

[3] The Directions also required Woolworths to file and serve an outline of submissions by 5.00pm on 10 November 2017, Ms Lin to file and serve an outline of submissions in response by 5.00pm on 24 November 2017 and Woolworths to file and serve any submissions in reply by 5.00pm on 1 December 2017. On 10 November 2017, Woolworths complied with the direction to file and serve an outline of submissions.

[4] On 12 December 2017, the Presiding Member's associate placed a telephone call to Ms Lin. The Presiding Member's associate spoke with Ms Lin's father and confirmed the 18 December 2017 hearing date for the appeal. However, Ms Lin's father advised that Ms Lin was in China for a spring festival until the end of February 2018 and would not be attending the hearing. He was informed that Ms Lin would need to send the Presiding Member an email outlining her reasons for not attending the hearing and attaching her itinerary.

[5] On 13 December 2017, Ms Lin sent the chambers of the Presiding Member an email, stating:

I am currently overseas so unable to attend meeting. I will be back in ~=March and let you know before the next schedule.

[6] In response, an email from the associate to the Presiding Member was sent, stating:

In order for the Deputy President to be satisfied that you are unable to attend the hearing scheduled on Monday, 18 December 2017, the Deputy President requires evidence of the following information from you:

• Reason for the travel;
• The date on which the travel was booked; and
• A copy of the flight itinerary

Please provide the above information and requested documents by 10.00am on Friday, 15 December 2017."

[7] There was no reply to this email from Ms Lin, so the hearing of the appeal proceeded, as scheduled, on 18 December 2017. There was no appearance by or on behalf of Ms Lin at the hearing of the appeal. As such, we indicated that we would hear Woolworths on the appeal, send the transcript from the hearing of the appeal to Ms Lin, giving her until close of business on 15 January 2018 to file any submissions. We also indicated that in the event we received any submissions, we would allow reply submissions from Woolworths to be filed within a further seven days. The parties were sent an email with these directions on 18 December 2017.

[8] We received no submissions from Ms Lin by close of business on 15 January 2018. On 7 March 2018, the Commission received correspondence by email from Ms Lin. Her email read "apologies for the delay in communication due to bad overseas communication enviroment [sic] from 29th Nov 2017 to 1st Mar 2018. Now I have become normal and writing to you to further the communication. Please advise".[3] An email was sent from the chambers of the Presiding Member giving Ms Lin the opportunity to explain her absence and provide travel documentation and evidence to support her travel. The email also directed Ms Lin to file any submissions to support her opposition to the appeal by 5.00pm on Friday, 16 March 2018. On 16 March 2018, Ms Lin called the Unfair Dismissal Case Management Team and requested a two day extension to file her material. The Case Manager indicated that she was unable to accommodate Ms Lin's request as the file had been allocated to chambers and that she would have to transfer Ms Lin's call. Ms Lin told the Case Manager that she did not wish to be transferred but instead requested that someone from chambers return her call.

[9] An email was sent to Ms Lin on 16 March 2018 advising her that given the history of delay, her unexplained failure to attend an earlier hearing and the failure to comply with earlier directions, the Full Bench was not inclined to grant the extension request.

[10] On 19 March 2018, the Presiding Member's chambers received an email from Ms Lin.[4] The email did not contain any submissions, however Ms Lin's travel itinerary was attached. The travel itinerary was issued to Ms Lin on 14 September 2017. The Notice of Listing for the appeal hearing was sent to Ms Lin on 27 October 2017. Ms Lin had ample time between the date on which the travel itinerary was issued and the date on which the Notice of Listing was issued for Ms Lin to notify the Full Bench of her travels and seek a hearing date which corresponded with her planned travel. No such request was made by Ms Lin. Furthermore, once the Notice of Listing had been issued with the date of hearing, Ms Lin did not initiate any steps to advise the Full Bench of her impending travel or seek an alternative date. Woolworths was given an opportunity to respond to Ms Lin's email of 19 March 2018. Woolworths indicated that it did not wish to add anything further and requested that the Full Bench issue its decision without any further consideration of any correspondence or submissions from either party.[5]

[11] We have therefore determined the appeal based on the material filed and the oral submissions Woolworths made at the hearing of the appeal on 18 December 2017. We have taken into account Ms Lin's absence but she has now been given more than ample time to file any further submissions in respect of the appeal. She has not done so.

[12] Although outlined in the PTA Decision, we will restate salient aspects of the factual background.

[13] Ms Lin's application for unfair dismissal remedy dated 15 June 2017 (the Application) was received in the Fair Work Commission on 16 June 2017. While the Application stipulated the date upon which Ms Lin's dismissal took effect as 14 December 2016, Commissioner Wilson determined 13 December 2016 as being Ms Lin's last day of employment, based on material provided by Woolworths.

[14] In order for the Application to have been made within the required 21 days after the dismissal took effect, it should have been made to the Commission by no later than 3 January 2017.[6] The Application was lodged on 16 June 2017. This was 164 days out of time.

[15] Woolworths objected to the Application because it was commenced after the 21-day statutory period and submitted that the circumstances of the matter were such that an extension of time should not be granted. Woolworths also argued that Ms Lin had not been dismissed but rather, she had resigned on 14 December 2016.

[16] Section 394(2) of the Act requires an application for unfair dismissal remedy to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Commissioner Wilson considered whether an extension of time should be granted to Ms Lin and was satisfied there were exceptional circumstances for a further period to be allowed for the making of the Application.

[17] In lodging its appeal, Woolworths sought a stay of Commissioner Wilson's decision and orders, together with the whole of the directions issued by the Commission on 8 August 2017, pertaining to the Jurisdiction (No Dismissal) and Arbitration conference/hearing.

[18] Deputy President Clancy issued a decision[7] and order[8] staying the Decision and orders of Commissioner Wilson, together with the whole of the directions issued by the Commission on 8 August 2017.

[19] As outlined above, we subsequently granted Woolworths permission to appeal on 11 October 2017.

[20] The Commissioner noted that in considering an application for an extension of time for the making of an application for unfair dismissal remedy, the Act requires him to have been satisfied there were exceptional circumstances to warrant the extension, taking into account the criteria outlined in s.394(3) of the Act.

[21] The Commissioner considered the factors he was required to take into account pursuant to sections 394(3)(b), 394(3)(c), 394(3)(e) and 394(3)(f) to be neutral[9] and he did not consider there would be "undue prejudice" to Woolworths (s.394(3)(d)) if an extension was granted.[10]

[22] As to whether there was an acceptable explanation for Ms Lin's delay in making the Application (s.394(3)(a)), the Commissioner found Ms Lin's explanation about the delay to be three things in combination:

• her mental illness;

• her lack of knowledge about her rights to challenge what she perceived to be a dismissal; and

• her misapprehension that the making of an anti-bullying application to the Fair Work Commission may have provided a remedy after she left Woolworths.[11]

[23] The Commissioner's conclusion as to whether there was an acceptable reason for the delay was as follows:

"[38] In relation to these three potential explanations for the making of a late application, in my view none would be sufficient on their own to rise to the level of being exceptional circumstances for the granting of an extension of time for the making of an unfair dismissal application.

[39] While the Commission is sympathetic to people with mental illness, on its own mental illness would be unlikely to be a sufficient reason to grant an extension of time, and especially one for such a long period as Ms Lin's. This would be especially so where there was no evidence that a period of hospitalisation covered the whole of the delay, or where the evidence about the debilitation of the illness, other than in the period of hospitalisation, was as generalised as that put forward by Ms Lin.

[40] In relation to the lack of knowledge about her capacity to make an unfair dismissal application, the fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance.

[41] Similarly misapprehension about the potential range of results from a particular form of application to the Fair Work Commission would, on its own, be insufficient for the Commission to grant an extension of time.

[42] However, in combination the presence of these three factors leads me to form the view that Ms Lin has put forward an acceptable reason for the delay in making her application. In combination the matters are unusual and significant and cogently explain why the application was made as late as in Ms Lin's case. The factors combined, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[43] Accordingly, this criterion resolves in Ms Lin's favour in my consideration of whether an extension of time for filing should be granted." [12]

[24] Ultimately, the Commissioner was satisfied there were exceptional circumstances for a further period to be allowed for the making of the Application. He ordered that the time for Ms Lin to file the Application be extended until 16 June 2017.

[25] Woolworths' Notice of Appeal sets out eight grounds of appeal.[13]

[26] In ground 1, Woolworths contends the Commissioner erred by exercising his discretion in an erroneous manner in that he did not find one factor that convinced him was acceptable for the delay, yet when he combined them, he found there was an acceptable reason for delay. Woolworths submitted the Commissioner gave no reasoning for coming to this ultimate conclusion.

[27] In ground 2, Woolworths contends the Commissioner erred by considering and being guided by irrelevant factors in exercising his discretion and finding that there was an acceptable reason for the delay.

[28] In ground 3, Woolworths contends the Commissioner erred in exercising his discretion by putting too much weight on the Applicant's evidence of her illness and its background and despite objection from the Appellant on the acceptance of medical evidence without calling evidence from a qualified medical practitioner and the Applicant being on notice to do so.

[29] In ground 4, Woolworths claims the Commissioner erred in finding that Ms Lin, in becoming aware of the termination of her employment on 14 December 2016, that this was then a "neutral factor", when it ought have been a factor in favour of Woolworths and a factor militating against a finding of exceptional circumstances.

[30] In ground 5, Woolworths contends the Commissioner erred by failing to take a range of material considerations into account:

• its filed written submissions in the reasoning of his decision;

• its objections to medical evidence being given by Ms Lin as to her illness without calling a qualified doctor who could, with proper qualifications, explain the effect of Ms Lin's illness on her capacity and to explain the whole and extended delay;

• its written submissions on the impact of the Release Agreement and the contents of the Release Agreement itself and its likely effect on the merits and his failure to consider the whole of the Agreement;

• the submissions of Union (The Shop, Distributive and Allied Employees' Association [SDA]) presence and support given to Ms Lin and its effect in coming to his conclusion that exceptional circumstances existed and also in determining that ignorance of the Commission's functions was a valid consideration;

• the entirety of the period between the expiration of the 21-day time limit and the ultimate filing of the unfair dismissal application and the lack of accountability of Ms Lin for the whole of the period, including, from the date she said in her evidence that she first found out she could file an unfair dismissal proceeding and the strict time limit and 16 June 2017;

• Ms Lin's ability to file Commission anti-bullying proceedings in as early October 2016 and her awareness of the Commission and its functions as far back as then, and that she had access to Union advice and assistance at the relevant times; and

• the extended length of time the Application was late and a failure to properly apply the higher threshold this matter required, given its extended lateness and given all the circumstances.

[31] In ground 6, Woolworths contends the Commissioner erred by finding that the merits was a neutral factor, when it ought to have been a factor in favour of Woolworths. In this regard, it relies on the material before the Commissioner, decided cases on the issue of signed Release Agreements in the Commission and the full content of the Release Agreement that was before the Commissioner in evidence.

[32] In ground 7, Woolworths claims the Commissioner erred by not accepting that an employer and employee can, by agreement, reclassify and re-determine how the employment is to be characterised as coming to an end (under a Release Agreement), which if properly found/accepted would have further supported "merits" being found in its favour.

[33] In ground 8, Woolworths contends the Commissioner erred in that his decision was guided by irrelevant factors, namely:

• Ms Lin's lack of knowledge of the unfair dismissal jurisdiction - this is not accepted by the Commission as a relevant or acceptable factor in determining exceptional circumstances;

• Ms Lin's ignorance that the one anti-bullying application would cover all applications in the Commission - again, ignorance of the Commission's functions and processes is not a relevant or acceptable factor in determining exceptional circumstances; and

• Ms Lin's evidence, without any corroborating expert medical evidence, on the whole history and detail of her medical condition including background and health before the cessation of employment and it being accepted as accounting for the whole of the 164-day period of the delay despite the Commissioner being critical of the Applicant's evidence and its impact on her reason for delay.

[34] Woolworths submitted its grounds of appeal disclose appellable error of the kind identified in House v King.[14] In summary Woolworths contends:

s.394(3)(a) - reason for delay

[35] Woolworths submitted that the Commissioner erred in exercising his discretion under this provision because he did not find one factor that convinced him there was an acceptable reason for the delay, yet when he combined the three factors, he found there was an acceptable reason for the delay, though provided no reasoning for doing so.

[36] Woolworths submitted the Commissioner:

1. Allowed irrelevant factors guide him (ignorance of the Commission's function and accepting generalised lay person medical evidence, despite objection); and

2. Failed to take into account the material consideration that the Respondent could not account for the entirety of the period of the delay.

[37] In submitting the Commissioner allowed irrelevant factors to guide and influence him, in accepting ignorance of the Commission's functions and of the 21-day time limit, Woolworths posited it is well established that ignorance of the Commission's functions/time limits is not an exceptional circumstance. These two reasons, Woolworths submitted, were irrelevant and improperly guided the Commissioner.

[38] Woolworths also contended the Commissioner placed too much emphasis on Ms Lin's lay medical evidence, despite its objection and submission that proper medical evidence was required and in doing so, fell into error. It also said she did not explain the whole period of the delay and how that correlated with her illness, relying on Australia Postal Corporation v Zhang.[15]

[39] By incorrectly taking these irrelevant factors into consideration, Woolworths said the Commissioner erred in finding that s.394(3)(a) weighed in favour of Ms Lin.

[40] Woolworths further submitted that the Commissioner failed to take into account:

• the entirety of the period between the 21-day time limit and the filing of the Application; and

• Ms Lin's lack of accountability for the whole of the period, including significantly, from the date Ms Lin said she became aware she could file an unfair dismissal application and that strict time limits applied.

[41] Woolworths contended this error was manifestly unjust.

[42] Woolworths submitted compounding his error in considering and accepting Ms Lin's ignorance of the Commission and its functions was the Commissioner's failure to take into account the fact that Ms Lin had filed anti-bullying proceedings in the Commission as early as October 2016, together with her access to union advice and assistance at the relevant times.

[43] Finally, Woolworths submitted the Commissioner failed to properly apply the generally higher threshold the matter required given the extended length of time the application was late.

s.394(3)(b) - when became aware

[44] Woolworths submitted that generally, a finding of the Commission that an Applicant knew of their dismissal on the day or close thereto, and there are no other extraneous reasons, would generally result in this factor being found in favour of the Respondent.[16]

[45] Woolworths submitted this factor ought to have been found in its favour and the Commissioner erred in determining it to be neutral, given the Commissioner's finding that Ms Lin became aware of the ending of her employment as early as 14 December 2016. Woolworths said the Commissioner misapplied the subsection which amounts to an error and an improper exercise of his discretion, which has led to an unjust result given his findings on the evidence.

s.394(3)(c) - action taken to dispute

[46] Woolworths submitted that having been incorrectly guided by 'ignorance' as a relevant factor, the Commissioner erred in finding that s.394(3)(c) was a neutral factor. It submitted if ignorance had not been accepted as a relevant factor, there was no evidence of Ms Lin having disputed her dismissal until she filed the Application and, as such, s.394(3)(c) ought to have weighed in its favour.

[47] As to the anti-bullying application filed by Ms Lin prior to her dismissal, Woolworths submitted the Commissioner ought to have found there was no dispute regarding her dismissal and he should not have taken it into account the anti-bullying application.

s.394(3)(d) - prejudice to the employer

[48] Woolworths did not press this factor.

s.394(3)(e) - merits

[49] Woolworths submitted the Commissioner erred by finding the merits consideration was a neutral factor given all the material before him, including decided cases on the issue of signed Release Agreements in the Commission, the full content of the Release Agreement, there being no evidence before him that Ms Lin did not understand what she was signing, union presence at the signing of the Release Agreement and the written submissions of Woolworths on this issue. Woolworths submitted there was insufficient weight attributed to the Release Agreement and that the Commissioner failed to take into account its written submissions on the content and impact of the Release Agreement.

[50] Woolworths submitted the Commissioner's finding that the merits was a neutral factor, in light of the evidence, was unreasonable and unjust and ought to have been found in Woolworths' favour. It said there was a misapplication of the Commissioner's discretion.

s.394(3)(f) - fairness

[51] Woolworths did not press this factor.

[52] In summary, Woolworths contend that the considerations in s.394(3)(a)(b)(c) and (e) ought to have weighed against a conclusion that there were exceptional circumstances.

[53] At the hearing of the appeal, Woolworths submitted we should uphold the appeal, quash the decision of Commissioner Wilson, rehear the matter ourselves and dismiss Ms Lin's unfair dismissal application.

[54] We have decided to uphold Woolworths' appeal and to quash the decision for the reasons outlined below.

[55] As outlined in paragraphs [25] - [33] above, by its Notice of Appeal, Woolworths identifies 8 appeal grounds. In essence, grounds 1,2,3,5 and 8 almost exclusively deal with the Commissioner's findings regarding the reasons for the delay advanced by Ms Lin.

[56] As is regularly noted in applications of this nature, the question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Nulty v Blue Star Group Pty Ltd[17] (Nulty) in the following way:

"[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance." (our emphasis)

[57] When adopting this formulation, the Full Bench in Nulty had made reference to the observation of Rares J in Ho v Professional Services Review Committee No 295.[18] In that decision, his Honour had observed:

"26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services." (our emphasis)

[58] It was noted in the recent decision of the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[19] in the context of an application for an extension of time for the making of a general protections dismissal application under s.365 of the Act, that the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.[20]

[59] Similarly, the Commission may allow a further period within which an application for unfair dismissal remedy may be made if it is satisfied there are exceptional circumstances, taking into account the matters specified in s.394(3)(a)-(f) of the Act.

[60] In the Decision the Commissioner correctly noted that the existence of "exceptional circumstances", as a precondition to the exercise of the discretion to extend the time within which applications under s.394(3) may be made, that this precondition establishes a "high hurdle" for an applicant and a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion.[21]

[61] The Commissioner's conclusions regarding the matters in s.394(3)(b)-(f) of the Act were as follows:

• s.394(3)(b) - whether the person first became aware of the dismissal after it had taken effect: a neutral factor;[22]

• s.394(3)(c) - any action taken by the person to dispute the dismissal: a neutral factor;[23]

• s.394(3)(d) - prejudice to the employer(including prejudice caused by the delay): there was no evidence that there would be undue prejudice to Woolworths if an extension of time was granted;[24]

• s.394(3)(e) - merits of the application: a neutral factor;[25]

• s.394(3)(f) - fairness as between the person and other persons in a similar position: a neutral factor.[26]

[62] In dealing with s.394(3)(a) of the Act, the Commissioner noted the delay in question was 164 days and found Ms Lin's explanation about the delay:

"...to be three things in combination: - her mental illness; her lack of knowledge about her rights to challenge what she perceived to be a dismissal; and her misapprehension that the making of an anti-bullying application to the Fair Work Commission may have provided a remedy after she left Woolworths."[27]

[63] As to these, the Commissioner found:

• on its own, mental illness would unlikely be a sufficient reason to grant an extension of time, particularly an extension for as long a period as Ms Lin would require and where there was no evidence that a period of hospitalisation covered the whole of the delay, or where the evidence about the debilitation of the illness, other than in the period of hospitalisation, was as generalised as that put forward by Ms Lin;

• mere ignorance of the statutory time limit or the fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional; and

• misapprehension about the potential range of results from a particular form of application to the Fair Work Commission would, on its own, be insufficient for the Commission to grant an extension of time.[28]

[64] The Commissioner found that none of the explanations were sufficient on their own to rise to the level of being exceptional circumstances for the granting of an extension of time for the making of an unfair dismissal application but, in combination, they constituted an acceptable reason for Ms Lin's delay in making the application and produced a situation which was out of the ordinary course, unusual, special or uncommon.

[65] The Commissioner was required to consider the 164 day period beyond the prescribed 21 day period for lodging an unfair dismissal application and weigh up the various reasons for the delay. There was no medical evidence before him and his findings were that while there was an 11 day period during which Ms Lin was hospitalised, the evidence from her regarding her debilitation was otherwise "generalised". The Commissioner's findings regarding the other two reasons given for the delay were orthodox and appropriate. It is well established that ignorance of one's rights will not usually provide an acceptable explanation of a delay in lodging an unfair dismissal remedy within the time prescribed.[29]

[66] We consider the Commissioner erred in coming to the conclusion that these three reasons for delay, when viewed in combination together, provided an acceptable reason for the delay in making the application and therefore weighed in favour of a finding of exceptional circumstances. In our respectful view, there was no proper basis in the circumstances of this case to find that the three explanations, none of which provided an acceptable reason for the delay, did, when viewed in combination together, provide a satisfactory explanation for the delay.

[67] While an 11-day period of hospitalisation might explain some of the delay, that period should be considered and weighed within the context of the total period of the 164-day delay and the absence of any other acceptable reason for the delay. In particular, following her discharge from hospital, a further 49 days passed before Ms Lin made application for unfair dismissal remedy. Moreover, such medical evidence as was before the Commissioner was not only generalised, it did not speak to Ms Lin's capacity to lodge an unfair dismissal remedy application during the delay period (except perhaps for the 11 days of hospitalisation) The absence of an acceptable explanation for the overwhelming majority of the delay, in the context of a lengthy period of delay, could not properly be weighed in favour of Ms Lin. In circumstances where no other factor in s.394(3) weighed in favour of a finding of exceptional circumstances, we consider the Commissioner's ultimate finding that there were exceptional circumstances constitutes an error of the kind identified in House v King.[30]

[68] As to ground 4, we note the effect of the Commissioner's finding that Ms Lin's becoming aware of the termination of her employment on 14 December 2016, in circumstances where it took effect on 13 December 2016, was a neutral factor because it was "not a circumstance where the Applicant only became aware of her termination at some point after the time that it occurred".[31] This analysis assumes, wrongly, that the consideration can only weigh in one direction. By assigning no weight to this factor, the Commissioner, in effect did not take it into account. A requirement that a matter be taken into account means that the matter is a 'relevant consideration' in the sense discussed in Minister for Aboriginal Affairs v Pelco-Wallsend[32], that is, matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.394(3)(a)-(f) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.[33] As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:[34]

'To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant'.[35]

On the facts before the Commissioner, Ms Lin became aware of the dismissal the day after it took effect. Ms Lin therefore had a full 20 days within which she could have lodged her application before time to do so would elapse. Just as learning of one's dismissal shortly before time elapses or at a time after it has elapsed will usually weigh in favour of an applicant for an extension of time, the consideration will likely weigh against an applicant if the applicant learns of the dismissal a time proximate to the date on which it took effect. This is because an applicant would not be deprived of the opportunity to lodge an application within time because of an absence of knowledge that the dismissal had taken effect. In the circumstances of this case, by concluding that the consideration was neutral and thereby assigning it no weight, the Commissioner erred in not taking into account a consideration that was relevant.

[69] As to grounds 6 and 7, which address the release agreement signed by Ms Lin[36] and the Commissioner's finding that the merits of the Application was a neutral consideration, we do not accept Woolworth's proposition that the release agreement was an automatic bar to any subsequent proceedings against it.[37] The release agreement was marked 'Without Prejudice' and its wording outlined it would become "an open and binding agreement when it is executed by all parties."[38] No such copy was produced to the Commissioner or on appeal. Further, issues concerning whether Ms Lin knew what she was signing and whether Ms Lin was supported by a union at the time she signed the release agreement are matters which are appropriate to deal with at a final hearing on the merits, if an extension of time is granted.

[70] It is evident the Commissioner's focus was on the contents of the release agreement and what it said about the cessation of Ms Lin's employment, with particular focus on the question of whether Ms Lin had been terminated from her employment, as defined in s.386 of the Act. In these circumstances, we do not consider the Commissioner erred in his assessment the merits of the Application.

[71] For the reasons given above we are persuaded that the Decision is attended by appellable error which should be corrected on appeal.

[72] We therefore uphold the appeal and quash the Decision and Order of Commissioner Wilson.

[73] For the reasons earlier given, we are not persuaded that Ms Lin has provided an acceptable explanation for the delay in lodging her application save for the hospitalisation period. The period of the delay was extensive and we therefore consider the absence of such an explanation weighs against Ms Lin. Given that Ms Lin became aware of the dismissal the day after it took effect, Ms Lin had all but one day of the 21 day period within which to lodge her application. This also weighs against Ms Lin.

[74] For the reasons earlier given, we adopt the Commissioner's merits assessment and assign to the consideration a neutral weighting, as did the Commissioner. The Commissioner's assessment of the other relevant matters was not challenged by Woolworths or Ms Lin and we adopt those.

[75] In the result there is no factor which weighs in favour of Ms Lin. Each matter weighs the other way or is neutral. Having taken into account the factors referred to in s.394(3)(a) to (f) of the Act, we are not persuaded that there are any exceptional circumstances warranting our consideration of whether we should exercise our discretion to allow a further period within which an unfair dismissal remedy may be lodged by Ms Lin.

[76] We therefore dismiss the application.

[1] [2017] FWC 4019.

[2] [2017] FWCFB 5081.

[3] Email from Ms Lin to the Commission dated 7 March 2018 at 3.31pm.

[4] Email from Ms Lin to the chambers of Deputy President Gostencnik dated 19 March 2018 at 8.27am.

[5] Email from Woolworths to the chambers of Deputy President Gostencnik dated 19 March 2018 at 11.21am.

[6] Fair Work Act 2009 (Cth), s 394(2).

[7] [2017] FWC 4298.

[8] PR595425.

[9] [2017] FWC 4019 at [4], [47], [56] and [57].

[13] Form F7 - Notice of Appeal dated 14 August 2017 at 2.1.

[14] (1936) 55 CLR 499.

[15] [2015] FWCFB 5285.

[16] See Australian Postal Corporation v Zhang [2015] FWCFB 5285, Pavlenko v Dirtybits Pty Ltd T/A SA Motorcycles [2017] FWC 3098 and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149.

[17] [2011] FWAFB 975.

[18] [2007] FCA 388 (27 March 2007)

[19] [2018] FWCFB 901 at [17].

[20] See Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26] (Rares J), Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

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

[22] [2017] FWC 4019 at [44].

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

[30] (1936) 55 CLR 499.

[32] Minister for Aboriginal Affairs v Pelco-Wallsend [1986] HCA 40; (1986) 162 CLR 24 See also Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

[33] See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd (1999] FCA 1121_; Edwards v Giudice_ [1999] FCA 1836; National Retail Association v Fair Work Commission [2014] FCAFC 118

[34] (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA [2011] FCA 719; (2011) 195 FCR 74 at [103].

[35] (1987) 16 FCR 167 at 184

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