Fair Work Act 2009
s.394—Unfair dismissal

The Applicant
v
Jemena Electricity Networks (Vic) Ltd
(U2022/1920)

Application for an unfair dismissal remedy.

[1] This decision concerns an application by a former employee of Jemena Electricity Networks (Vic) Ltd for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] It is not contentious that the application was filed outside the statutory timeframe for filing. The Applicant’s employment with the Respondent ended on and effective 22 September 2022. Pursuant to s.394(2) of the Act, the period of 21 days ended at midnight on 13 October 2021. The application was lodged on 14 February 2022, being 124 days outside the 21-day period.

[3] The Applicant asked the Commission to grant a further period for the application to be made under s.394(3). A program for the filing of materials in relation to this jurisdictional issue was set and the matter proceeded to hearing, by video, on 30 March 2022.

[4] In support of their request for an extension of the time for filing the claim, the Applicant asked the Commission to receive the application, a statement and a bundle of documentary records. The Applicant also gave oral evidence at the hearing.

[5] As the evidence relevant to the jurisdictional issue involves particularly sensitive information, and the Respondent did not oppose, I was satisfied that this is an appropriate case to receive the documentary evidence with certain redactions and to order that the evidence presently before the Commission and identity of the Applicant remain confidential until such further order of the Commission. 1

The ‘exceptional circumstances’ test

[6] The 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. 2 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.3

[7] 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.

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

(a) the reason for the delay;

(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);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

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

Reason for the delay

[10] The 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 the applicant’s favour, however all of the circumstances must be considered. 4

[11] The Applicant’s reason for the delay is essentially that they are a victim of serious domestic violence, the impact being that they were initially unaware of the dismissal and of no capacity to attend to filing the application until 14 February 2022. In support of this contention, the Applicant produced records of third party intervention, various court proceedings and outcomes and letters from a support service. At the hearing, the Applicant gave oral evidence about the nature of the domestic violence and the impact such that this application was not attended to sooner. I assessed the Applicant to be a credible witness in this regard.

[12] The Respondent did not oppose the Applicant’s explanation for the delay or the Applicant’s contention that the reason(s) for delay justified a conclusion of exceptional circumstances in this particular case.

[13] It is plain on the evidence before the Commission that the Applicant was significantly impacted in their capacity to file this application due to a traumatic and sustained circumstance and consequential physical and psychological injuries. I have had regard to the lengthy delay. However, in all of the circumstances, I accept the evidence given by the Applicant in support of the reason(s) for their delay and am satisfied that the Applicant has provided a credible explanation for delay in filing this application for the period of the delay. In my view, this weighs strongly in favour of a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[14] The Applicant’s evidence was, and I accept that, the Applicant was not aware of the dismissal letter until 2 October 2022.

[15] The Applicant learned of their dismissal within the 21-day timeframe for filing but nonetheless some 10 days after it had taken effect.

[16] This factor weighs only slightly in favour of a finding of exceptional circumstances.

Action taken to dispute the dismissal

[17] The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future.

[18] There is no evidence of any action taken to dispute the dismissal prior to the filing of this application. In the particular circumstances of this case I consider this weighs only slightly against a finding of exceptional circumstances.

Prejudice to the employer

[19] Whilst a lengthy delay may give rise to a presumption of prejudice, I cannot identify any particular prejudice that would accrue to the Respondent if an extension of time were to be granted.

[20] The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

Merits of the application

[21] The Act requires me to take into account the merits of the application in considering whether to extend the time for filing.

[22] 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. The Applicant has at least a prima facie case, to which the Respondent raises an apparent defence.

[23] I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[25] 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.

Conclusion

[26] 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 persuaded that the Applicant’s circumstances were out of the ordinary course, unusual and uncommon. The reason for the delay weighs strongly in favour of, the awareness of the dismissal after it had taken effect weighs slightly in favour of, the absence of any action taken weighs only slightly against and the other factors weigh at best neutrally toward such finding. Being satisfied that there are exceptional circumstances, I am also satisfied that it is appropriate to exercise my discretion to extend time.

[27] Accordingly, the application for an extension of time is granted. I will issue an order extending the time for filing to 14 February 2022 [PR739861].

DEPUTY PRESIDENT

Appearances:

Applicant on their own behalf.
Mr I Carter of the Respondent.

Hearing details:

2022.
Melbourne (by Video).
30 March.

Printed by authority of the Commonwealth Government Printer

<PR739804>

 1   PR739860.

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

 3   Ibid.

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