Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - request for an extension of time - request refused - application dismissed.

• [1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]

• [2] This decision concerns whether I should exercise my discretion to allow Ms Zarina Begum a further period for her unfair dismissal application (Application) to be made against Bupa Aged Care (Bupa).

• [3] Ms Begum has lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with Bupa, which her form F2 Unfair Dismissal Application advised took effect on 12 October 2021.

• [4] The application was lodged on 3 November 2021 by Mr Michael Irvine (of counsel) on behalf of Ms Begum.

• [5] The application recognised that it was made beyond 21 days from the date of dismissal.

• [6] On 12 November 2021, I issued Directions and advised that the extension of time issue would be heard on 23 November 2021. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Ms Begum was directed to provide a statement concerning the extension of time and any documents to be relied upon by 19 November 2021 (and serve the same on Bupa). The Directions were also sent to Mr Irvine of Websters Lawyers.

• [7] On 19 November 2021, the Applicant filed her submissions and a statement from Mr Irvine. The effect of the submission was that the delay was caused by representative error on the part of Mr Irvine, who having received a signed Client Services Agreement late on Friday 29 October 2021, did not lodge the application until 3 November 2021, owing to previous commitments. No statement was received from Ms Begum.

• [8] On 22 November 2021, the Respondent lodged its submissions objecting to the extension of time application. The Respondent contended that exceptional circumstances did not exist, that the Applicant contributed to the delay and that the merits weighed heavily in favour of the Respondent.

• [9] A Hearing was conducted by way of telephone conference on 23 November 2021. A sound file record of the telephone conference was kept. Both Mr Irvine and Ms Nadia Stojanova (of counsel), sought leave to represent their clients on the basis of s.596(2)(a) - complexity and efficiency. Neither party opposed the other being represented. Permission was granted.

• [10] Mr Irvine's statement was received and he was not required for cross examination. His evidence is summarised below:

• Ms Begum first contacted Websters Lawyers on Monday, 25 October 2021. Further information was provided by Ms Begum to Websters Lawyers later that day.

• A Client Services Agreement and authorities were sent to Ms Begum by Websters Lawyers on Thursday, 28 October 2021 and returned at 4.01pm on Friday, 29 October 2021.

• Mr Irvine attended a Continuing Professional Development seminar on Friday, 29 October 2021, and therefore was out of the office and did not see the email from Ms Begun which returned the signed Client Services Agreement.

• Mr Irvine flew to Perth on Saturday, 30 October 2021 to visit family. He returned to the office in the morning of Tuesday, 2 November 2021.

• A file was generated by the Accounts Team at Websters Lawyers for Ms Begum's matter at 12.35pm on 2 November 2021, but Mr Irvine did not see the email notifying him of this until the morning of 3 November 2021.

• In the morning of 3 November 2021, Mr Irvine assessed the file and realised that the 21 day period for lodging an unfair dismissal application had lapsed. Mr Irvine prepared the application and filed it electronically at 12.49pm on 3 November 2021.

• The delay in lodgement was purely a result of representative error, and no blame should be attached to Ms Begum.

• Mr Irvine states that he believed that on 25 October 2021, Ms Begum intended to file an unfair dismissal claim.

• [11] Ms Begum gave evidence at the Hearing, and her evidence is summarised below:

• Ms Begum worked in an aged care facility as a Nurse Assistant and her duties included showering, toileting and feeding patients.

• Ms Begum was not vaccinated against COVID-19 and did not hold an exemption certificate. Ms Begum accepted that the law required her to be vaccinated in her role.

• Ms Begum was not vaccinated as she wished to undergo a future medical process (which I have chosen not to reveal), and she held concerns about the effect of the vaccination on this treatment.

• Ms Begum was a member of "United Voice" at the time of the dismissal.

• On a single day after her dismissal, Ms Begum contacted "Work Fair", who referred her to the Working Women's Centre, who in turn referred her to "United Voice". Ms Begum contacted "United Voice" and sought that they contest her dismissal. Ms Begum advised that after hearing that she was not vaccinated, "United Voice" told her that they could not assist her in relation to any unfair dismissal claim. The date of these conversations was the subject of some inconsistent evidence by Ms Begum who initially stated it was the day before she contacted Websters Lawyer and later (after checking her phone records) on 19 October 2021. I accept that these communications occurred on 19 October 2021.

• On 25 October 2021, Ms Begum contacted Websters Lawyers, and later that night she submitted further material to them.

• Ms Begum returned a signed Client Services Agreement to Websters Lawyers on 29 October 2021.

• [12] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are "exceptional circumstances", taking into account the following six criteria:

(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."

• [13] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[3]

• [14] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:

"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'

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."

[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."

• [15] There is no dispute that the dismissal occurred on 12 October 2021 and the application was lodged on 3 November 2021. The application was lodged 1 day outside of the 21 day time limit and therefore can only be pursued if this time limit is extended.

• [16] It is submitted by the Applicant that the reason for the delay was solely the result of representative error, and therefore the Applicant herself should not be held responsible for it.

• [17] From the evidence, it appears that Ms Begum took no action to contest the dismissal between 12 October 2021 and 18 October 2021. On 19 October 2021, Ms Begum contacted some potential representatives. Ms Begum contacted Websters Lawyers on 25 October 2021, but did not instruct them to proceed until 29 October 2021, when she authorised them to lodge her application (by returning her signed Client Services Agreement).

• [18] There is a wealth of case law which explores the limits of representative error as a credible reason for delay in extension of time matters.

• [19] The Full Bench in Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; (2011) 211 IR 347 summarises the overall approach as follows:

"[24] The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark's Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson's Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell's Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark's Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.

[25] The approach in Clark's Case was summarised in Davidson's Case as follows:

"In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(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 exists 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] In Diotti v Lenswood Cold Stores Co-Op Society [2015] FWC 7659, Deputy President O'Callaghan explored representative error as a reason for the delay in a situation in which the Applicant did nothing to challenge her dismissal for 17 days before contacting her union. The relevant discussion is below:

"[14] The long standing approach of the Commission is that representative error may represent an acceptable reason for the delay and, hence in terms of the current legislative requirement, an exceptional circumstance. That approach is founded on the principle that, if an applicant did not contribute to a delay caused by his or her representative, it would not be fair to hold that error against the applicant. There is no coherent explanation for the delay, of some 17 days before Ms Diotti indicated concern to her union relative to the termination of her employment. In these circumstances, I am not satisfied that Ms Diotti's circumstances mean that the relatively minimal effect of that representative error favour a finding of an exceptional circumstance and hence, an extension of time. Whilst I have accepted an element of representative error associated with Mr Blewett's inaction in processing the matter between 19 October 2015 and 22 October 2015, any such representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. Consequently, all of the actions, or in this case, lack of action on the part of Ms Diotti are central to the question of whether there is an acceptable reason for the delay. The circumstances here are simply not properly characterised as fairly explaining the delay on the basis of representative error. The delay here was fundamentally caused by lack of action on the part of Ms Diotti even though she was aware of the 21 day time limit. She simply left it too late to request the assistance of her union.

[15] I have noted that United Voice took action on 16 October 2015, shortly after Ms Diotti advised of the concerns she had about the termination of her employment, so as to seek an explanation for this dismissal. Whilst this represents an alternative form of action to the lodgement of this application, Ms Diotti's delay in bringing the matter to the attention of United Voice was of her own making.

[16] I am not satisfied that the granting of an extension of time represents prejudice to the respondent in this matter but this, of itself, cannot represent a basis for an extension of time."

• [21] Finally, the Full Bench in Todd Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 made the following observations:

"[30] There seems little doubt, based on the Appellant's evidence before us, that the delay during the period between 27 October 2015 and the date on which the application was ultimately lodged was occasioned by representative error. In and of itself representative error will not provide an acceptable explanation for a delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error."

• [22] Whilst I accept that Websters Lawyers was responsible for the delay which occurred post 29 October 2021 (noting that the final day to lodge was 2 November 2021), I am not satisfied that Ms Begum was blameless. Ms Begum gave evidence that she was aware of the time limit and despite having determined to contest the dismissal on 19 October 2021, it appears she did not give instructions to file an application until 29 October 2021. That conduct left only two working days for the unfair dismissal application to be completed and filed by her representative. Whilst representative error was undoubtedly a contributing factor to the delay, the facts in this case are more analogous to Diotti than they are to Robinson, and as such I am not satisfied that Ms Begum was blameless in relation to her unfair dismissal application being lodged late. This factor weighs against a finding that there were exceptional circumstances.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

• [23] Ms Begum was aware of the dismissal on the date it occurred.

• [24] This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

• [25] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[5]

• [26] At the Hearing, the Applicant gave evidence that she contacted the "Work Fair", the Working Women's Centre and "United Voice" (presumedly a reference to the United Workers' Union) in regards of the termination of her employment on 19 October 2021. In addition, Ms Begum contacted Websters Lawyers on 25 October 2021, and instructed them to file an application on 29 October 2021.

• [27] The Applicant's enquiries with the above entities on these days are actions taken to contest the dismissal outside of the filing of the unfair dismissal application and as such this factor weighs in favour of the granting of an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

• [28] Prejudice to the employer will weigh against granting an extension of time.[6] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[7]

• [29] Bupa has not contended that it is prejudiced by the delay.

• [30] I am satisfied that there would be no greater prejudice to Bupa caused by the application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice does not weigh either for or against the extension of time being granted.

Paragraph 394(3)(e) - merits of the application

• [31] In the matter of Kornicki v Telstra-Network Technology Group,[8] the Commission considered the merits of the application in the context of an extension of time application, albeit under the predecessor to the current Act, as follows:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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."

• [32] Similarly, the Full Bench in Kyvelos v Champion Socks Pty Limited[9] made the following observations:

"In considering whether to accept an application which has been lodged outside the time prescribed...the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement...It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application...In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case."[10]

• [33] The Applicant's position on merit was largely contained in her Form F2 (which raised process issues) together with oral submissions. The content of the termination letter appears consistent with the Applicant's contentions that a face-to-face meeting was scheduled, and then cancelled, and the Applicant was advised of the allegations and invited to respond prior to her dismissal. The Respondent contended that the Applicant was dismissed on the basis that she did not have the capacity to perform work. The Respondent was required to comply with its obligations under the South Australian Emergency Management (Residential Aged Cared Facilities No 40) (COVID-19) Direction 2021 (the Direction), which required employers to ensure that its workers did not engage in work or duties or provide services at an aged care facility after 17 September 2021 unless they had received at least one dose of a COVID-19 vaccine and had provided evidence of a booking to receive the second dose of a COVID-19 vaccine.

• [34] During the Hearing, the Applicant gave evidence that she performed work in a residential aged care facility, was involved in the provision of care, was aware of the requirements of the Direction, and that at the time of the Hearing she was yet to have received a COVID-19 vaccine, had chosen to refrain as a result of concerns on a future medical process, and was not the holder of an exemption.

• [35] Whilst I am mindful that I have not heard the merit case, based on the material before me, it appears that there is no contest that the Applicant did not have the capacity to perform the inherent requirements of her role, in that she was legally required to be vaccinated or hold an exemption certificate, and did not satisfy either requirement, and would not do so as she feared it would impact on a future medical process. The Commission is generally reluctant, with good reason, to conduct a detailed consideration of the substantive merits of the matter for the purpose of determining whether an extension of time should be granted. In this case, however, it appears that there are significant barriers to the success of the application. In my view, the merits of the application do not support the granting of an extension of time and if anything, vitiate it.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

• [36] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[11] considered this criterion and said:

"[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."

• [37] There was no submission that the issue of fairness as between the Applicant and other persons in a similar position was relevant. In my view, this factor does not weigh either for or against the extension of time being granted.

• [38] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant. As such, the application must be dismissed.

• [39] An Order[12] reflecting this decision will be issued.

[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6 - where a period of time 'is expressed to begin after a specified day' the period 'does not include that day').

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

[4] [2011] FWAFB 975.

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

[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[9] (1995) 67 IR 298.

[11] [2016] FWCFB 6963.

[12] PR736374.

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