Fair Work Act 2009

s.394 - Unfair dismissal

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

[1] This decision concerns an application by Ms Xiximei Wu (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant's employment with AAA Fresh Pty Ltd (Respondent) was terminated with effect from 25 May 2021. The unfair dismissal application was lodged on 2 July 2021.

[3] 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). The period of 21 days ended at midnight on 15 June 2021. The application was therefore filed 17 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). The Respondent opposes this request.

[4] In accordance with directions issued by my chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant's application for an extension of time.

[5] The matter was heard as a determinative conference via Microsoft Teams Video on 10 August 2021. The Applicant represented herself and was assisted by a support person, Mr Yuanhong Fang. The Respondent was represented by one of its directors, Mr David Vincent.

[6] The Commission was assisted by a mandarin interpreter, as well as Mr Fang who assisted at times with translation from the Applicant's dialect into mandarin.

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

[8] 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.[1] 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.[2]

[9] 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.

[10] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

[11] 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.

[12] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[3]

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

[14] 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.[4]

[15] In her unfair dismissal application, the Applicant provided the following reason for the delay: "I was not aware of the laws surrounding unfair dismissal and the commission [sic]. I was told by a friend."[5]

[16] By email dated 19 July 2021, the following submission was filed on behalf the Applicant:

"As a non-English speaker, Xiximei was not aware of such an institution and thus was oblivious to the laws surrounding unfair dismissals. It was after learning from a friend who told her about it, she felt that the nature of unfair dismissal was congruent to what she experienced back on the 25th of May 2021.

When she was removed from her job she tried for a long period of time, searching for a new job. However, due to the lockdown, she was unable to find any work. During this time, Xiximei did not her options and had no income."

Due to the language barrier, and having spent an extensive amount of time searching for new work, she was unable to lodge a timely application."[6]

[17] During the determinative conference the Applicant confirmed the reasons set out in [15] and [16] above.

[18] As can be seen from the above, the principal reason relied on by the Applicant was that she was not aware of unfair dismissal laws and her limited understanding of the English language contributed to that.

[19] 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.[7]

[20] In relation to the Applicant searching for new employment, I do not consider this to be an acceptable explanation for the delay. While that action is a common and understandable response by an employee losing their job, it is not out of the ordinary, unusual, special or uncommon.[8]

[21] In relation to the Applicant's limited understanding of the English language, I am not satisfied that this is, of itself, a factor warranting special consideration. If there was evidence before me that the Applicant had been seeking the assistance of an interpreter or similar services to assist her with the preparation of her application, and there were delays associated with that, that might be an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[9] However, this is simply a case that the Applicant was not aware of her rights and focused her priorities on seeking new employment. That is not a criticism of the Applicant, but rather a natural response in the circumstances.

[22] 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

[23] It is not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

[24] It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making the application on 2 July 2021. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

[25] The Respondent did not submit that it would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[26] The FW Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

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

[27] 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.

[28] Having regard to the matters I am required to take into account under s.394(3), 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. 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). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[29] An order to that effect will issue with this decision.

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

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

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

[5] Applicant's response to question 1.5 in Form F2;

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

[9] Wong v Bowl & Chopstix [2014] FWC 5008 at [19].

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