FWA 1394
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
VICE PRESIDENT LAWLER
SYDNEY, 25 FEBRUARY 2010
Unfair dismissal – extension of time for lodging application.
 This is an application for an extension of time within which to file an application for an unfair dismissal remedy.
 Section 394(2) of the Fair Work Act 2009 (FW Act) provides:
“(2) [Standard time limit] The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).”
 Subsection 394(3) provides:
“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(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
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
 On any view the primary application was filed out of time. Mr Johnson was handed a termination letter, which is undated, at a meeting. He accepted in cross-examination that a meeting occurred on a Monday, and I find, on the balance of probabilities, that that meeting occurred on Monday, 26 October 2009. Accordingly, the 14 day period referred to in s. 394(2)(a) expired on Monday, 9 November 2009. The primary application was posted to the Fair Work Australia (FWA) office in Canberra and bears a ‘received’ stamp dated 13 November 2009 some time between 10am and 11 am. On that basis, the primary application was filed 4 days out of time.
 I turn to consider the particular factors specified in s. 394(3) of the FW Act.
 The reason for delay proffered by the applicant relates to ignorance of the 14 day time limit in s. 394(2)(a) until shortly before its expiry and an inability to successfully complete the filing of an online application through the FWA website within that time.
 At the time of his dismissal, the applicant was unsure of his legal rights. He made inquiries and was initially told that he had a three-week period within which to file an application for an unfair dismissal remedy. Further inquiries revealed that to be an error and he became aware of the fact of the 14 day period a day or two before it expired.
 The applicant's evidence, which I accept, is that he made an attempt, a day or two before the 14-day period expired, to submit an online application for an unfair dismissal remedy through the FWA website. He encountered difficulties with that process and, despite at least two attempts, was unable to successfully file his application in that manner.
 The applicant, who lives near Bargo, thereafter completed an application form and posted it to the FWA office in Canberra, being the form that was stamped as received between 10am and 11am on Friday 13 November 2009. The time of the day that is indicated by the ‘received’ stamp suggests, on the balance of probabilities, that the mail in which the application was physically received was delivered on Thursday 12 November 2009, either to a post office box or to FWA’s street address, albeit that the application was not processed until the following morning.
 Mr Johnson's best recollection was that he posted the letter on a Sunday. However, I note that the application is dated 9 November 2009, which is a Monday. The better view is that the letter was posted on Monday 9 November 2009. It is entirely plausible that it took from that day until Thursday 12 November 2009 for it to be delivered in Canberra.
 I note that in his evidence-in-chief Mr Johnson thought that his attempts to make an online application occurred on a Thursday or Friday. However, as the evidence progressed, he accepted that it may have been later. It seems to me that the objective evidence, accepting as I do the correctness of the applicant's evidence that his attempts to file the application through the web site were made in the day or two before the expiry of the 14-day period, favours the conclusion that those attempts were on the Saturday 7 November 2009 and Sunday 8 November 2009.
 Mr Bray for the respondent notes correctly that the FWA web site outlines a number of methods by which an employee who has been dismissed may file an application for relief, including by telephone.
 I find, on the balance of probabilities, that in the circumstances of this case it was not a viable option for Mr Johnson to file his application by telephone at the time that his attempts to complete an online application failed albeit that a telephone application would have resulted in the application being filed sooner than it was.
 In any event, the fact remains that I am satisfied that the applicant made a bona fide attempt to make a real-time application before the expiry of the 14-day period.
 Mr Johnson became aware of the dismissal at the time that it occurred, that is, when he was handed the termination letter at the meeting on Monday, 26 October 2009;
 Mr Johnson took no action to dispute the dismissal other than his attempts to file an application for an unfair dismissal remedy;
 There is no prejudice to the employer other than the usual prejudice that accompanies any grant of an extension of time.
 The applicant was terminated for poor performance following a formal performance-improvement process that had been conducted since April 2009. The respondent contends that that process was a bona fide process and that the applicant had failed to improve his performance satisfactorily, and accordingly the dismissal was justified and not harsh, unjust or unreasonable.
 The primary application sets out a series of 14 points under the heading “Why was the dismissal unfair?”. Taken together, those points, if established, provide an arguable case that the termination was harsh, unjust or unreasonable, albeit that it is not clear that the case has overwhelming prospects of success, even if the applicant's version is accepted.
 The authorities make it clear that it is not appropriate to embark upon a fact finding exercise in relation to the merits of a dismissal for the purposes of determining an extension of time. Accordingly, I proceed on the basis that if the applicant's case is accepted he has some prospects of success, albeit that they are not overwhelming.
 The factor in s. 394(3)(f) is not relevant in the present case.
 Section 394(3), in requiring that FWA be satisfied that there are “exceptional circumstances”, represents a significant departure from the previous position under the Workplace Relations Act 1996 (WR Act). The discretion to extend time for an unfair dismissal application under the WR Act was found in s. 643(14) which provided:
“(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.”
 The principles governing the exercise of the discretion in s. 643(14) of the WR Act were those laid down by Marshall J in Brodie-Hanns v MTV Publishing Limited 1. Indeed, s. 643(14) was accompanied by a note referring to that decision. The Brodie-Hanns principles are as follows:
“1. Special Circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
(underline emphasis added)
 The similarities between the specific criteria in s. 394(3)(a)-(f) and the principles in Brodie-Hanns are obvious. However, Marshall J held that “special circumstances are not required”. By including a requirement in s. 394(3) that there be “exceptional circumstances”, the legislature must be taken to have intended a significant narrowing of the discretion to extend time.
 There have only been a handful of decided cases on extension of time, under the FW Act. In only two of those cases has there been any consideration of what is meant by “exceptional circumstances”.
 In Shields v Warringarri Aboriginal Corporation 2 Kaufman SDP said:3
“The requirement that there be exceptional circumstances was not found in the Workplace Relations Act 1996 (the WR Act), the Act that preceded and was repealed by this Act. [FW Act]. Time for making an application under the Act [FW Act] is also shorter than it was under the WR Act: 21 days under the WR Act and 14 days under the Act [FW Act]. It seems to me that the alterations between the two acts evince an intention by the parliament that applications for relief should be confined to 14 days, except in rare cases; cases where there are exceptional circumstances. The use of the word "exceptional" also, in my view, evinces an intention that the hurdle for extensions of time is higher under the Act [FW Act] than it was under the WR Act.”
 In Parker v Department of Human Services 4, Whelan C addressed the issue as follows:
“ Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd  FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
 Dealing with the expression 'exceptional circumstances' as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward)  1 QB 198 at 208 as follows:
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.”
[Mann v Minister for Immigration and Citizenship  FACFC 150]
 While I agree with Kaufman SDP that the introduction of the requirement that there be “exceptional circumstances” means that “the hurdle for extensions of time is higher under the [FW Act] than it was under the WR Act.” However, with respect, I prefer the analysis of Whelan C in relation to what constitutes “exceptional circumstances” and I adopt it. The articulation of the meaning of the word “exceptional” relied upon by the Full Court in the judgment cited by Whelan C was directed at the ordinary English meaning of the word and, in the absence of any indication to the contrary in the FW Act, that is the meaning to be given to the word “exceptional” in s. 394(3).
 Taking into account the circumstances that I am required to take into account under s. 394(3), I am satisfied that there are exceptional circumstances in this case; namely, a bona fide attempt to file an application through the FWA web site within time, which was unsuccessful for reasons beyond the understanding of the applicant.
 That situation is exceptional in the sense articulated in the quote relied upon by the Full Court in Mann. I am not satisfied that the circumstances of this case are rendered unexceptional because the applicant might have used another method, namely a telephone application, which could have been effective, possibly within time but certainly before the filing by post.
 It seemed to me just and equitable to exercise the discretion to extend time and an order has issued to that effect.
Mr D Bray, Australian Industry Group, for the respondent.
Mr C Johnson, applicant in person.
1 (1995) 67 IR 298 at 299-300.
2  FWA 860.
3 Ibid at PN .
4  FWA 1638
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