[2012] FWA 2111

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Fair Work Act 2009
s 394—Unfair dismissal




Application for unfair dismissal - jurisdiction - out of time application - exceptional circumstances - extension of time granted.

[1] The applicant was employed by the respondent from 26 March 2007 until his dismissal on 8 November 2011. Although the applicant claims that he was dismissed due to economic factors affecting the publisher, the respondent maintains that he was dismissed because he ‘was not operating efficiently’. At the time of his dismissal the applicant was employed, under the terms of a recently signed contract of employment, as a Caravan and Motorhome DVD Camera Operator/Video Editor. It is interesting to note that only three months prior to his dismissal, the applicant was made redundant by the respondent and reengaged the next day, with added responsibilities and a $10,000 per annum pay increase.

[2] The contested reasons for the applicant’s dismissal are not materially relevant for the purposes of this decision. This is so because a jurisdictional objection has been taken by the respondent on the grounds that Fair Work Australia (‘FWA’) cannot deal with the applicant’s unfair dismissal claim as it was filed outside the 14 day time limit imposed by s 394(2)(a) of the Fair Work Act 2009 (‘the Act’). There is no dispute that the application was filed on 1 December 2011 - 9 days out of time.

[3] Before dealing with the merits of the application, FWA must decide whether there are exceptional circumstances which would allow a further period for the application to be made outside the 14 day statutory limit set by s 394(3) of the Act. In determining what constitutes exceptional circumstances, the Tribunal is required to take into account:

While I am obviously not determining the merits of the applicant’s claim of unfair dismissal (subject to any preliminary merit considerations as required by subsection (e) above), the circumstances surrounding his alleged dismissal and the effect it had on him, are raised as causative reasons for his delay in filing his unfair dismissal application. I shall come back to those matters shortly. The onus is upon the applicant to satisfy the Tribunal that exceptional circumstances exist as to warrant the exercise of my discretion to allow the application to be filed out of time.

[4] The applicant filed two statements in the proceedings and was not required for cross examination. The respondent filed statements of Mr C, General Manager Production, Mr P, Administration and Payroll Manager, and Mr W, Marketing Director. The respondent’s witnesses were also not required for cross examination. Understandably, all of the parties’ statements dealt largely with the merits, or otherwise, of the application. They serve as a helpful background to the discrete jurisdictional issue to be determined by the Tribunal. To the extent that the evidence does not expressly deal with the jurisdictional issue, I shall not repeat it here.

Case for the applicant

[5] The applicant claims that he was shocked and traumatised at being dismissed in circumstances where he had been made redundant three months earlier (although not paid any redundancy benefits) and immediately reengaged. He said that he was not given a written notice of his termination of employment and has still not received one. He further claims he received no warnings, either verbal or written as to his alleged failure to meet deadlines, had not been the subject of any performance reviews over 4 years and 8 months and had never been given an opportunity to improve any alleged poor work performance. He had participated in meetings with the respondent over his period of service and had never been told his employment was in jeopardy.

[6] The applicant said he had felt degraded and emotionally overwhelmed at the time of his dismissal without any warnings and was so shocked that he did not register any objection at the time. He had not known what to do, was in a state of disbelief and felt so depressed that he lost all motivation. The applicant sought medical advice on 29 November 2011 and was prescribed an anti-depressant medication which he has been taking ever since. At the time he saw his doctor, he said he was unaware of the 14 day time limit for filing an unfair dismissal application and he was not able to concentrate on what legal avenues were available to him.

[7] On 30 November 2011 the applicant sought advice from the Law Society of New South Wales and was given the names of three law firms. He was told that he had 14 days to lodge the application. The same day he was advised by a solicitor at Haywards Solicitors to immediately file an unfair dismissal application - which he did the next day. The applicant believes his claim has merit and that he lodged his application immediately after he became aware of the 14 day time limit.

[8] Ms A Perigo of Counsel, in a written submission, outlined the applicable legislative provisions and the principles which have been developed by FWA when considering the meaning of ‘exceptional circumstances’. Ms Perigo addressed each of the subsections of s 394(3) of the Act as follows. The reason for the delay in filing his application was that he was shocked and depressed by his dismissal. After consulting his preferred doctor, he was prescribed anti-depression medication, with the Doctor citing that ‘over the last 3 weeks .... has been stressed over his dismissal from work.’ The applicant was unaware of the 14 day time limitation. However, the very next day, he sought legal advice and acted immediately on that advice.

[9] The applicant accepts that he was aware of his dismissal on 8 November 2011, but at no time has he been provided with written reasons for his termination. Ms Perigo put that there was no prejudice to the respondent in this application proceeding and there was merit to the applicant’s claim for an unfair dismissal remedy. He was not given any reasons of his alleged poor performance and was never informed that his position was in jeopardy. All these matters constitute exceptional circumstances, as comprehended by s 394(3) of the Act, in that they are out of the ordinary, unusual and uncommon.

[10] In oral submissions, Ms Perigo developed her written submissions and added that although the applicant had received a summary of his final entitlements, this was not a letter of termination giving reasons for his dismissal.

Case for the Respondent

[11] Mr C said that when the applicant was offered the Caravan DVD Editor position on 2 August 2011, he claimed that he was capable of fulfilling the requirements of the position. Mr C monitored the applicant’s performance over the next few weeks and became concerned with his inability to meet timing deadlines. He raised these concerns with him in September 2011 and the applicant assured him he would pay closer attention to the deadlines. However, the problem continued throughout October 2011. When he raised the issue again with the applicant, he claimed that Mr W was making changes affecting the deadlines. In late October, Mr C and Mr W met and decided that the applicant was not suited to the new role. A freelance writer had to come in and assist the applicant get ‘on top of things’. On 8 November, Mr C and the Creative Director, Mr L met with the applicant and terminated his employment. At the meeting, Mr C explained the reasons to him and he seemed to accept the situation by nodding and saying ‘ok’. The applicant was handed the termination document setting out his termination entitlements.

[12] Mr P deposed that in early 2010 he had several meetings with the respondent’s General Counsel, Ms L Panucci, in relation to the new national workplace legislation. As a result he gave all employees (at that time numbering 245) a copy of the Fair Work Information Statement. He did this either by handing it to them or, if they were away, by putting it on their desks. Mr P had also prepared the applicant’s contract of employment and the termination payment advice.

[13] Mr W was at the meeting on 1 August 2011 when the applicant was made redundant. He had not attended the meeting the next day when the applicant was offered the new position. However, in a conversation with him later that day, the applicant gave the impression he was only to stay on for 2 weeks. He informed Mr C of this conversation and believed Mr C spoke to the applicant to make sure he understood what was going on.

[14] In the ensuing months, when Mr W dropped by the applicant’s office, he found him always behind in the timeframes set for his work. He would correct him and ask if he needed any help to meet the timeframes, which he declined. In late October, Mr W realised the applicant could not fulfil his role, despite having given him every assistance and opportunity to follow instructions.

[15] In submissions for the respondent, Ms Panucci said there was no evidence that in the three weeks after his dismissal, the applicant was incapacitated and prevented from making and filing his unfair dismissal application: see Helen Wemyss v Mission Australia Employment Services [2010] FWA 1798 (‘Weymss’). In fact, once he knew of his rights he had acted swiftly to make the application. Ms Panucci speculated that he may have also received advice when he spoke to his parents and partner.

[16] Further, Ms Panucci put that there was no evidence that the applicant did anything about his stress and depression for 3 weeks following his termination, until he attempted to see a doctor on 24 November 2011 and didn’t actually do so until 28 November. The applicant was also aware of his rights as he was provided with a copy of the Fair Work Information Statement by Mr P which clearly sets out the statutory 14 day time period for unfair dismissal claims: see Patrick Dyer v Aarya Alliance Pty Ltd T/A Mona Lisa Cafe Bar Restaurant [2010] FEA 8895 (‘Dyer’). Ms Panucci said there had been no adequate reason for the applicant’s delay in filing his application and his credibility is now in issue.

[17] Despite the applicant alleging the respondent had not done so, Ms Panucci insisted that the applicant was given written notice of his termination on 8 November 2011. There was no action taken by the applicant to dispute his dismissal until the filing of this claim on 1 December 2011. Ms Panucci also submitted that there will be prejudice to the respondent in respect to further costs, if the application is allowed to proceed. As to the merits of the case, Ms Panucci put that notwithstanding some initial misunderstandings, the applicant accepted the new role for fear of losing his job, when he knew he was unsuitable for the role. This caused detriment for the employer. He should have accepted the redundancy when it had been offered.

[18] Ms Panucci submitted there was clear evidence the applicant had been given numerous warnings about his performance in not meeting the timeframes. The respondent had attempted to assist him in rectifying the problem, without result. Ms Panucci asserted that the credibility of the applicant is in issue because of his assertions of:

In Reply

[19] Ms Perigo objected to the applicant’s credibility being put in issue when he had not been cross-examined. While there may be contested evidence, it was never tested, because the jurisdictional matter is all that is before the Tribunal. Ms Perigo submitted that the merits of the applicant’s case is but one of six factors the Tribunal is required to take into account in deciding the jurisdictional issue. Because there are contested facts, that would be enough to satisfy the Tribunal that his prospects of success are not hopeless.

[20] Ms Perigo emphasised that the applicant had made clear he had not been given written reasons for his dismissal. He had not received warnings in relation to his performance. Similarly, the applicant said he did not get the Fair Work Information Statement. These were not issues as to credibility, but issues involving a conflict of evidence. In any event, nothing was said to him that indicated his job was in jeopardy.

[21] Ms Perigo distinguished the two cases relied on by Ms Panucci. In Wemyss, the application had been filed 36 days late and the applicant in that case had claimed constructive dismissal. In Dyer, the only issue raised was an unawareness of the 14 day time limit. That is not the case here, where other factors are able to be relevantly taken into account by FWA.


[22] At the outset, it is incumbent on me to make some preliminary comments concerning the respondent’s submissions because, frankly, I found them to be distorted, exaggerated and unhelpful. Ms Panucci asserted that the applicant’s credibility was in question because:

[23] It hardly needs to be said that if a witness’s credibility is to be called into question, particularly going to his or her motivations and actions, then such evidence should be tested in the witness box. Not only was there no cross-examination of the applicant, but Ms Panucci did not object to the tender of the applicant’s statement. True it is that there is an unremarkable conflict in the evidence over a number of issues, but the only issue to be determined, at this point, is whether or not the Tribunal should exercise its discretion to extend the time for filing of his claim. It is self evident that the onus rests on the applicant to demonstrate ‘exceptional circumstances’, as he is the only witness who can give direct evidence of what happened after his dismissal and what actions he took, or had reason not to take, which are relevant. He has not been questioned, let alone challenged as to his feelings, motivations and actions. To my mind the decision of the Full Bench in John Mappas v TAAU Australia Pty Ltd [2007] AIRCFB 260 is directly pertinent to the above observations. At para 26 and 27, the Full Bench said:

[24] As to the assertion (d) above, Ms Panucci makes a very novel, but unacceptable proposition which seems to suggest that if there is no evidence that the applicant was not looking for a job in the three weeks after his dismissal, then he may have been, and this called into question his credibility. Ms Panucci also put that there was no evidence of what the applicant said to his partner or parents and it was therefore reasonable to infer that he must have received some advice as to what avenues, including legal ones, were open to him. It seems to me that these submissions of Ms Panucci may be generalised in the following way. If there is no evidence of a person not doing something, then they must have done it. Such a conclusion is palpable nonsense. It must be rejected.

[25] Ms Panucci further asserted that the applicant caused detriment to the respondent because he knew that he could not fulfil the new role but accepted it anyway for fear of losing his job. Apart from the fear of losing one’s job as being a pretty good reason for accepting a different job, the assertion that he had malevolently done so knowing he couldn’t do the job, was never put to him in cross-examination. This was a serious allegation, that deserved more than mere speculation from the bar table.

[26] In addition, I do not consider the respondent’s insistence that the applicant’s letter of termination was the schedule of termination payments he received on 8 November 2011. Notwithstanding the provisions of s 117 of the Act, it is generally expected that at the very least, a letter of termination gives reasons for an employee’s termination of employment. The letter often includes background references to an applicant’s performance or conduct which are said to justify the decision to dismiss. The schedule of termination payments was nothing of the sort. It was disingenuous and unfair to characterise it as something, it plainly, was not. The applicant was entirely correct to state that he had not received, and still has not received, a written letter of termination. To describe this evidence as demonstrating a lack of credibility is wrong. In addition, I do not accept that the applicant was being untruthful, evasive or lacked credibility by saying that he had not received any termination payments. While he did receive certain payments at the time of his dismissal, these were no more than three weeks in lieu of notice and statutory entitlements. I understood him to mean that he did not receive any discretionary benefits, such as redundancy payments, which he had, in fact, forfeited three months earlier.

[27] While I accept that ignorance of the law may not constitute exceptional circumstances for the purposes of s 394(3) of the Act: see Nulty v Blue Star [2011] FWAFB 975 (‘Nulty’) at para 14, there was no evidence that the applicant had actually received the Fair Work Information Statement. His evidence was that he had not. Even so, simply leaving a document on an absent employee’s desk is not sufficient to be satisfied he had received it; let alone read and understood it. Moreover, Mr P claimed to have provided the statement to employees in January 2010 and the applicant was dismissed nearly two years later. Even if the applicant had received a copy of the statement, it is a ludicrous to suggest that the specific terms of a generalised document given to an employee two years earlier, would be able to be remembered.

[28] On the other hand, there is no reason to doubt that the applicant was spoken to by Mr W about his problem in meeting the work deadlines. However, even on the respondent’s own evidence, there was no direct or written warning that a failure to improve his performance may result in dismissal. Ms Panucci’s characterisation of the frequent discussions between the applicant and Mr W do not, in my opinion, amount to the conventional notion of warnings which, unheeded, may lead to dismissal. It was an exaggeration to describe them as such. Moreover, I note that the applicant’s contract of employment provides for a six monthly formal performance review. Obviously, this did not occur.

[29] Finally, I accept Ms Perigo’s analysis that the two decisions relied on by the respondent can be distinguished from the accepted facts and circumstances of this case. If these two cases demonstrate anything, it is the wide discretion available to the Tribunal when balancing the various factors in s 394(3) of the Act. In this respect I refer to what was said by a Full Bench of FWA in CEPU v Active Tree Services Pty Ltd [2011] FWAFB 8446 at para 12:

Statutory context

[30] Subsection 2 of s 394 of the Act is as follows:

[31] When considering whether to extend time for the filing of an unfair dismissal application under s 394(2)(b), FWA is required to take into account the following matters under s 394(3) of the Act:

Meaning of ‘exceptional circumstances’

[32] A considerable body of authority has now been developed within FWA as to the meaning of exceptional circumstances in the statutory context of s 394(3) of the Act. A Full Bench of FWA in ‘Nulty’ supra, summarised the meaning of the expression in the following way; albeit in the context of a general protections application:

See also Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers [2010] FWAFB 7251.

[33] In a recent decision of FWA, Stjepic v Boka Aluminium Windows Pty Ltd [2011] FWA 9011, Drake SDP, considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd (2003) 135 FDR 206 and said that:

See also Johnson v Joy Manufacturing Co Pty Ltd [2010] FWA 1394.

[34] I will now deal with each of the matters to be taken into account by FWA pursuant to s 394(3) of the Act.

Reasons for Delay

[35] The primary reason advanced by the applicant for the delay in filing his claim for unfair dismissal was that he was shocked at his dismissal and was stressed and depressed as a result. He relied on a medical certificate, obtained some three weeks later, from his treating doctor. It is necessary reproduce the terms of this certificate which were:

It will be immediately apparent that unlike most medical certificates which I see, which invariably and unhelpfully only record ‘unfitness for work’ as the reason for an employee’s absence, this certificate describes the nature of the applicant’s condition, its likely duration given its cause and the doctor’s recommended treatment. It is also relevant to note, given the applicant had been a patient at the Centre for eight years, that the Doctor would be familiar with his history and any changes in his behaviour.

[36] It is for these reasons that I am satisfied that the applicant’s state of mind was one of the causative factors in the reasons for the delay in filing his application. In my opinion, it is also reasonable to assume that the applicant’s shock as to his dismissal was something more than the usual shock that an employee would experience if told of their dismissal without notice. I form this opinion in the context of the applicant’s previous four and a half years service - seemingly without blemish - and the rather unusual circumstances, 3 months ago, of having been made redundant one day and reengaged the next with a $10,000 pay rise and new duties. In my view, his expectations of continuing employment would have been significantly high.

[37] In addition, the applicant claims he was unaware of the 14 day time limit and he had not received the Fair Work Information Statement from the employer. Of course this is a disputed fact. While I respectfully agree with the comments of His Honour, Hamberger SDP, in Dyer that ‘for an ordinary layperson to have limited knowledge of the legal remedies that are available to them following the termination of their employment is neither unusual nor uncommon, rather (perhaps sadly) it is a situation that is quite frequently encountered’, this reason was the only one advanced by the applicant in that case for the delay in filing his unfair dismissal claim. Viewed in this way, His Honour’s decision is not authority for the proposition that ‘ignorance of the law’ is not a matter which may be taken into account when balancing of a range of factors in the exercise of the Tribunal’s discretion. In this case, I believe that it is at least a marginal consideration.

[38] As to subsection (b) of s 394(3), I do not apprehend that there is any argument that the applicant was first aware of his dismissal on the day it took effect; namely, 8 November 2011. I accept there is no evidence that the applicant took any action to dispute his dismissal from that date until the date of seeking legal advice on 30 November 2011. Once he was given that advice, he acted very promptly to file an application. This is a neutral factor.

[39] In my view, there is no prejudice to the employer, in the present circumstances, should the time for filing this application be extended by 9 days. I arrive at this conclusion for the following reasons:

[40] As to the merits of the application I would refer to the following passage from Damien Haining v Deputy President Drake & Ors [1998] FCA 1168 where the Full Court of the Federal Court said in an appeal on a question of extending time for filing an unfair dismissal matter:

It seems to me that the strongest factor, which tips the balance in the applicant’s favour in this case, is the merits of his application as disclosed in the evidence so far filed by both parties. Although at this point, I express only a prima facie view, as the evidence has obviously not been tested, I make the following observations:

[41] Fairness as between the person and the other person in a similar position (subsection 3(f) of s 394(3)) is not relevant to this application.

[42] For all of the abovementioned reasons and taking into account of all the relevant matters in s 394(3) of the Act, I am satisfied that the applicant has demonstrated that ‘exceptional circumstances’ exist which persuade me to extend the time for the filing of his unfair dismissal application until 1 December 2011. An order to that effect will be issued with this decision.



Ms A Perigo, Counsel, for the applicant

Ms L Panucci, in-house Counsel, for the respondent

Hearing details:

17 February

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