| FWC 6709|
|FAIR WORK COMMISSION|
Fair Work Act 2009
DEPUTY PRESIDENT BEAUMONT
PERTH, 31 DECEMBER 2021
Application for an unfair dismissal remedy
 Ms McNicol (the Applicant) initially applied for an unfair dismissal remedy on 19 October 2021 after having been purportedly dismissed by 4lifeskills Inc (the Respondent) on 4 October 2021 (first application). On 10 November 2021, the Commission dismissed the application under s 587(1)(a) of the Fair Work Act 2009 (Cth) (the Act) for failure to pay the filing fee. 1 The Applicant stated that the filing fee was not paid because of representative error. A subsequent unfair dismissal application was made on 19 November 2021 and was therefore submitted some 25 days after the statutory deadline (second application).
 The Respondent objected to the application on the grounds that the second application was filed outside the 21-day period prescribed by s 394(2) of the Act.
 It is not contested that the second application was made out of time. However, there are several issues that warrant attention prior to considering whether an extension of time should be granted in which to make the second application.
 Those issues include, first, whether the Applicant is precluded from making the second application by operation of s 725 of the Act. And second, whether it was open to make the second application in circumstances where the Applicant had identified an error of fact in the decision of Rachael McNicol v 4lifeskills Inc in which her first application was dismissed (the First Decision). 2
 At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’, in addition to both the first and second issues identified above. Both were invited to make any further submissions in relation to the issues identified and the question of whether there were ‘exceptional circumstances’ by reference to those factors at paragraph  of this decision.
 Before turning to traverse the aforementioned issues, I propose to briefly deal with the relevant facts in the matter.
 The Applicant worked for the Respondent in the capacity of a support worker. She commenced in that role on 6 January 2020 and her employment was terminated on 4 October 2021.
 Having had her employment terminated, the Applicant consulted the firm ‘Employee Dismissals’, and it appears that she engaged that same firm to represent her for both the first application and the second application.
 Employee Dismissals appears to have determined that the Applicant was eligible to make the first application and filed that application with the Commission on 19 October 2021. However, due to what the Applicant frames as a ‘representative error’, the first application was submitted without the filing fee. The Applicant submitted that her representative did not pay the filing fee due to an oversight by the representative’s administrator.
 On 10 November 2021, the Commission dismissed the first application in the First Decision. 3
 The First Decision set out that the Commission had contacted the Applicant’s representative on 20 October 2021 to discuss payment of the required fee and the representative had confirmed that payment would be made later that day.
 Later in the day on 20 October 2021, the Commission emailed correspondence to the Applicant and her Representative’s nominated email address advising that the application required payment of the filing fee or a completed fee waiver form if the Applicant wished to proceed with the application. 4 It is observed that an incorrect email address had been recorded for the Applicant.
 The First Decision details that a final attempt to contact the Applicant’s representative was made by the Commission on 3 November 2021 to discuss payment. The call was not answered and there was no provision to leave a voicemail message.
 Therefore, on 4 November 2021 the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment. 5 The call was not answered, and a voicemail message was left advising the Applicant that payment of the required fee was still outstanding and requesting a return call.6
 In respect of the second application, at hearing the Applicant denied ever having received a call from the Commission concerning the first application. The Applicant claimed that no voicemail had been left and therefore the statement made at paragraph  of the First Decision was incorrect.
 The first application was of course dismissed on 10 November 2021.
 On 19 November 2021 the second application was made. After prompting from the Commission, payment of the filing fee for the second application was forthcoming on 22 November 2021.
 When the Applicant and her representative were asked why it was the case that permission to appeal the First Decision had not been sought in circumstances where the Applicant had identified a factual error at paragraph  of the First Decision, the answer received was that it was the administrator of the Applicant’s representative who decided to file the second application.
 Having made two sequential unfair dismissal applications, the operation of s 725 of the Act appeared a relevant consideration.
 The Act provides a set of legislative rules relating to applications for remedies under it. These legislative rules extend to preventing multiple applications or complaints in relation to the same conduct. 7 In respect of unfair dismissal applications the ‘general rule’ is set out in s 725:
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any of those sections applies.
 Section 729 deals with unfair dismissal applications and reads as follows:
(1) This section applies if:
(a) an unfair dismissal application has been made by the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction;
(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.
(2) an unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.
 As was explained by the Full Bench in Chandra Gupta Narayan v MW Engineers Pty Ltd (Narayan), 8 the effect of the general rule in s 725 is that if s 729 applies then the person who made the unfair dismissal application may not make any further complaint or application for relief under the Act or ‘another law’ (as defined in s 732). It follows, that if the Applicant has made an unfair dismissal application under s 394(1) and none of the circumstances in s 729(1)(b) apply, then the Applicant cannot make another application or complaint in relation to her dismissal under either the Act or under ‘another law’. This would preclude the Applicant from bringing the second application.
 The critical question in the context of this case is whether any of the circumstances in s 729(1)(b) apply. It will be recalled that one of those circumstances was that:
“... the application has not:
(i) failed for want of jurisdiction...” [emphasis added]
 In this case, the Applicant had her first application dismissed under s 587(1)(a) of the Act for her failure to pay the filing fee. Section 395 of the Act stipulates that an application under Division 5, Part 3-2, must be accompanied by a fee prescribed by the Fair Work Regulations (2009) (Cth) (the Regulations). The Regulations prescribe such a fee. In the absence of such a fee the Commission lacks jurisdiction to entertain the application and accordingly may dismiss the application under s 587(1)(a) of the Act, given the application was not made in accordance with the Act.
 As the Applicant’s first unfair dismissal application failed for want of jurisdiction, s 729 does not apply and so the general rule in s 725 does not stop the Applicant from making another unfair dismissal application in relation to her dismissal by the Respondent.
 In Narayan, the Full Bench expressed that the legislative intent of Subdivision B of Division 3 of Part 6-1 was clear. Namely, the intent was to prevent a party from making multiple applications in relation to the one dismissal in circumstances where their initial application had been considered on the merits and dismissed. 9 It is evident that the Applicant’s first application has not been considered on the merits and thereafter dismissed. Instead, the dismissal occurred because the first application was not made in accordance with the Act and therefore the Commission was absent jurisdiction to progress the first application further.
 Based on the above, it would appear that the Applicant is not precluded from making the second unfair dismissal application by operation of s 725 of the Act.
 The next issue to consider is whether the making of the second application was permitted in circumstances where the Act provides the legislative apparatus to appeal a decision under s 604 or, in circumstances where the application is made under Part 3-2, to seek permission to appeal a decision under s 400.
 It is accepted that a person who is aggrieved by a decision made by the Commission may appeal that decision under s 604 of the Act. The appeal is by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 10 There is no right to appeal, and an appeal may only be made with the permission of the Commission. While an appeal can and usually will be conducted by reference to the original evidence, the Full Bench is not limited to the evidence before the primary decision-maker and can admit further evidence.11
 Section 400(1) modifies s 604(2) of the Act in relation to appeals from decisions made under Part 3-2, which of course concern unfair dismissal applications. Section 400 of the Act reads:
(1) [FWC must not grant permission to appeal unless in public interest]
Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) [When a party may appeal on question of fact]
Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
 Briefly stated, s 400 provides that, despite s 604(2), the Commission must not grant permission to appeal from such decisions unless it considers that it is in the public interest to do so. If s 400(1) applies, the public interest is the sole criterion for the grant or refusal of permission to appeal. If the appeal bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission.
 At s 598 of the Act, clarification is provided as to what constitutes a ‘decision’ for the purposes of Part 5-1. Section 598(1) explains that a reference in Part 5-1 to a decision of the Commission includes any decision of the Commission however described – with the exception of an outcome of a process carried out in accordance with s 595(2) of the Act – which is not relevant for current purposes.
 In my view, it is uncontentious that the First Decision constitutes a ‘decision’ as understood by reference to s 598 of the Act. Further, it is evident that the Applicant considered that the Commission had made an error of fact in the First Decision by finding that a call had been made to the Applicant’s phone and a voicemail left. However, instead of appealing the First Decision the Applicant opted to make a second application.
 It was always open to the Applicant to have sought permission to appeal the First Decision – noting that it is accepted that whilst the dismissal of the first application was made pursuant to s 587, it is the case that the relevant provision for an appeal sits with s 400. It is not out of the ordinary course for applicants to request permission to appeal the discretionary decisions of this Commission regarding the dismissal of unfair dismissal applications under s 587. 12
 As observed, it is uncontroversial that the exercise of discretion to admit new evidence or consider further material is available to the Commission. 13 Therefore, the Applicant could have agitated her point that she received neither a phone call nor voice message from the Commission, prior to her first application being dismissed.
 It seems an oddity that an applicant may simply make a fresh unfair dismissal application when her or his first unfair dismissal application is dismissed pursuant to s 587. In such circumstances one might argue that s 400 effectively becomes redundant in such circumstances. Given the modifications to s 400 which have resulted in the test under it being a ‘stringent one’, it is difficult to discern that the legislative intent would have been to have effectively provided a work-around. An unfair dismissal application is dismissed and instead of contending with s 400 and the appeal process, the applicant aggrieved by the decision, makes a fresh unfair dismissal application. Arguably, this could be done repeatedly exhausting both the resources of the Commission and the other party. Clearly there would be sound policy reasons for dissuading such course of action.
 In light of the above, I consider it open to the Commission to dismiss the second application on the basis that it was not made in accordance with the Act. 14 Evidence was provided at hearing that it had been the decision of the administrator of the Applicant’s representative that had opted to simply refile an unfair dismissal application rather than seek permission to have appealed the First Decision. However, there was no argument advanced that Employee Dismissals had misadvised the Applicant regarding the lodgement of the second application or that the Applicant had sought advice or undertaken her own research as to the preferred next steps after the first application failed.
 In short, little thought appears to have been directed to the recourse available to the Applicant after her first application was dismissed. While it appears that the Applicant’s representative may have suffered from a surprising level of ineptitude or disorganisation, this does not persuade against a conclusion that the application should be dismissed under s 587(1)(a) of the Act. However, out of an abundance of caution, I have opted to consider whether an extension of time should be granted pursuant to s 394(3).
 Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. As the Applicant’s application was not made within the requisite period, for the application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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. 15
 Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 16 In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.
 In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, 17 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 18
4.1 Reason for the delay
 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. 19 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. 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.20
 The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application. 21 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.22
 Where a representative error is a factor said to have contributed to the delay in making the application, it is accepted that the conduct of the applicant nevertheless is to be examined. 23 In Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service,24 a Full Bench decision that considered an out of time application under s 365 of the Act, but which is relevant for present purposes, it was said by the majority:
Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:
“(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 exits 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.” 25
 Having been dismissed on 4 October 2021, the Applicant made her first application in time. However, that application was dismissed because of the Applicant’s failure to pay the filing fee and hence the second application was made late.
 The Applicant places reliance upon representative error to explain the delay in making the second application. However, that representative error does not pertain directly to the late lodgement of the second application per se, but to the lodgement of the first application sans the requisite filing fee and a failure to make good that payment after the Commission had prompted the Applicant’s representative to do so.
 From the materials filed and the viva voce evidence accepted at hearing, it would appear there was an administrative error made by the Applicant’s representative regarding the failure to pay the filing fee. However, the Applicant’s conduct must also be examined. In the First Decision, the Commissioner wrote:
 On 4 November 2021 the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment. The call was not answered and a voicemail message was left advising the Applicant that payment of the required fee was still outstanding and requesting a return call.
 A review of the Commission’s case management systems records there having been a telephone call placed to the Applicant on 4 November 2021 at 9:11am (AWST). That same record, notes that the call was unanswered and that a voicemail was left, which outlined the matter number and requested a call back. The call was made to the Applicant’s mobile number, a number which has been cross-referenced and checked with the one provided for the second application.
 Whilst the call was placed to the Applicant on 4 November 2021, it was not until 10 November 2021 that the First Decision was published. This provided ample time for the Applicant to have responded to the request to contact the Commission. While the Applicant argues that she never received such call, there is no evidence before me except her assertion to that effect. In circumstances where the Commission has published a Decision that sets out a telephone call was made to the Applicant and a voice message left, and that she did not respond to the same, it is that evidence I prefer. I see no reason why this Commission would falsify a record within its case management system or would purport an occurrence within a decision that did not unfold.
 I consider that Applicant is not blameless in respect of her conduct concerning the first application. A call was made to her, and a message left to contact the Commission. She did not do so. Consequently, her first application was dismissed hence giving rise to her second application, which was made out of time.
 This is not to say however that the Applicant’s representative, Employee Dismissals, had no part in effecting the delay. In this respect I am convinced that there was a representative error.
 However, the actions of both the Applicant’s representative and the Applicant have been considered and weighed. The dismissal of an unfair dismissal application under s 587 is not taken lightly by the Commission. Before extinguishing an applicant’s right to have her or his unfair dismissal case proceed, the Commission will take all reasonable steps to alert the Applicant to that potentiality. As stated, I am content to find that more likely than not the Commission took such steps in this case and alerted the Applicant directly that she was to make contact with the Commission.
 It follows that I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for part of the period of the delay in lodging her second application and in all the circumstances I consider that this weighs against a finding that there are exceptional circumstances. This is the case notwithstanding the provision of plausible justification for the remaining part of the delay.
 I have considered the delay as the period beyond the 21-day period and have considered that on receipt of the First Decision the Applicant made contact with her Representative to endorse the taking of further action. However, regard has also been had to the circumstances leading to the dismissal of the first application and to the making of the second.
4.2 Whether the person first became aware of the dismissal after it had taken effect
 At all material times from the time the Applicant was notified of her dismissal on 4 October 2021 until the date the unfair dismissal application was made, the Applicant knew she had been dismissed. I consider this to be a neutral factor.
4.3 Action taken by the person to dispute the dismissal
 Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 26 I have considered all submissions and the evidence in this respect.
 Having considered the evidence and submissions of the Applicant and the Respondent, there is insufficient evidence to find that the Applicant challenged her dismissal. This weighs against a finding of exceptional circumstances.
4.4 Prejudice to the employer
 I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances.
4.5 Merits of the application
 In Kornicki v Telstra-Network Technology Group, 27 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. 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. 28
 Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application. 29 The merits of the application more generally would need to be scrutinised. This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.
 However, I pause to observe that if the allegations of the Respondent are in fact correct, and that the reason for the Applicant’s dismissal has been reported to the National Disability Insurance Scheme Quality and Safeguard Commission because of reported incidents of client neglect, then the Applicant may face significant obstacles in advancing a successful argument that there was not a valid reason for her dismissal.
4.6 Fairness as between the person and other persons in a similar position
 The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, 30 where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 31
 I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position, weighs strongly in favour of either party, based on the submissions filed and as such I consider it a neutral consideration.
 The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time and I consider that it is not fair and equitable to grant the extension. The factors considered either do not weigh in favour of granting an extension or are otherwise neutral – neither weighing for nor against.
 It follows that the Applicant’s application for an unfair dismissal remedy is dismissed. An Order 32 will be issued with this decision.
Ms Ayana Dehaloo for the Applicant;
Ms Janet Cooper for the Respondent.
Perth (by telephone)
15 December 2021
Printed by authority of the Commonwealth Government Printer
1 Rachel McNicol v 4lifeskills Inc.  FWC 6312.
4 Ibid .
5 Ibid .
6 Ibid .
7 Fair Work Act 2009 (Cth) pt 6-1 div 3.
8  FWCFB 2530 .
9 Ibid .
10 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194  (Gleeson CJ, Gaudron and Hayne JJ).
11 Fair Work Act 2009 (Cth) s 607(2).
12 Gill v Rio Tinto Aluminium Ltd T/A Rio Tinto Weipa  FWCFB 4540.
13 Akins v National Australia Bank (1994) 34 NSWLR 155; Fouad Ramadan v WSI Logistics Pty Ltd  FWCFB 4145.
14 Fair Work Act 2009 (Cth) s 587(1)(a).
15 Ibid s 394(3).
16  203 IR 1.
17  FWCFB 901.
18 Ibid .
19 Ibid .
20 Ibid .
21 Long v Keolis Downer T/A Yarra Trams  FWCFB 4109 .
22 Mr Ke Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank  FWCFB 287 .
23 Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service  FWAFB 466.
25 Ibid .
26 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
27 Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
29 Kyvelos v Champion Socks Pty Ltd, Print T2421 ; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation  FWC 2899.
30  FWC 8885.
31 Ibid .