Time limits and the Fair Work Commssion

“As appears from the following extract from a decision of the Fair Work Commission rejecting an application for permission to lodge an unfair dismissal claim out of time, a bona fide and honest miscalculation will not constitute the “exceptional circumstances test” which must be met to gain an extension of time.

“Reason for the delay (section 394(3)(a))

[47] The reason for the delay in lodging an application is a factor that must be considered. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.13

[48] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.14

[49] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.15

[50] Three reasons are advanced by Mr Harvey for the delay:

  • he made a calculation error;
  • he was stressed; and
  • he was not wanting to compromise an offer of alternate employment.

Calculation error

[51] No doubt Mr Harvey made a calculation error. I take into account that he was a lay person making the calculation without recourse to professional advice. I recognise that it is not difficult for a lay person to miscalculate when applying their circumstances to legal language.

[52] However, a number of factors weigh against this being a weighty consideration.

[53] Firstly, the miscalculation was the result of what Mr Harvey described as an “assumption” on his part that the day of the week the twenty-first day would fall would be the same weekday (a Friday) that his dismissal had taken effect. Had he counted out twenty one days rather than blocks of weeks he may not have made the miscalculation.

[54] Secondly, the miscalculation was not a spur of the moment or last minute calculation. Mr Harvey made the calculation early in the 21 day period for filing, and did not revisit his assumption.

[55] Thirdly, in this period Mr Harvey had access to legal advice yet did not recalculate.

[56] Fourthly, Mr Harvey was not misled by the Commission web site, which refers to a requirement to file “within 21 days of the dismissal taking effect”; the same language as the FW Act.

[57] Moreover, it is well established that mere ignorance of the statutory time limit does not constitute exceptional circumstances warranting an extension of time. 16 This can be so even where an employee makes a miscalculation of a very small period.17

[58] Even though the calculation error was made by Mr Harvey in good faith and provides an explanation for the delay, it is not a particularly convincing explanation in the context of considering whether exceptional circumstances exist.

Stress

[59] Mr Harvey says that he was under a lot of stress “particularly regarding the reason for my dismissal”. 18

[60] In cross examination Mr Harvey’s evidence was that whilst he was under stress, the level of stress was not uniform over the period. He said that in the immediate aftermath of the notice of termination he was highly stressed, but that his stress receded somewhat as the possibility of redeployment arose. 19

[61] I accept that Mr Harvey was under some degree of stress even in the delay period and in the period when he made the miscalculation. However, it is not unusual for a dismissed employee to be under stress in a period post-dismissal. Of itself, this is not an exceptional circumstance. 20

[62] Moreover, no medical or expert evidence was led by Mr Harvey of how his stress may have contributed to his cognitive thinking or his miscalculation. At best, the stress provides an explanation for the miscalculation and perhaps an explanation for part of the delay but does not provide an explanation for Mr Harvey’s action to delay filing the application until the last day that he had calculated. 21

[63] That Mr Harvey was experiencing stress is not a particularly convincing explanation in the context of considering whether exceptional circumstances exist.

Not wanting to impair alternate employment

[64] Mr Harvey’s evidence was that he “did not want to upset the employer or deter them from offering other forms of employment due to an unfair dismissal application”. 22 Elsewhere, he put it this way:23

“As to not prejudice my alternative employment options with the employer I abstained from lodging an Unfair Dismissal application until the last day of the 21-day timeframe.”

[65] This provides insight into the reason for the delay. Early in the 21 day period Mr Harvey was inclined to make an unfair dismissal application but resolved not to do so if alternate employment was found and would not do so until the last day to give himself the greatest possible chance of alternate employment being offered.

[66] Given his age, it is understandable that Mr Harvey would want to give himself the best chance of securing alternate employment via the searches he believed Compass Group was making on his behalf.

[67] I give some weight to this factor, but diminishing that weight are a number of other considerations.

[68] Firstly, it was a conscious choice on Mr Harvey’s part to wait until (what he thought was) the last day; to cut it as fine a possible and leave no margin for error.

[69] Secondly, to the extent Mr Harvey ultimately had to weigh the risk of securing alternate employment being soured by an unfair dismissal claim, he ultimately did file a claim. The claim he filed on 19 February 2021 was in the same terms as that which he drafted in the days prior. Moreover, in the period since filing the claim he remained in communication with Compass Group on redeployment options.

[70] Thirdly, while Compass Group was slow to respond to his messages and in many instances unresponsive, it remained entirely within Mr Harvey’s decision-making authority to make a claim and decide when within the 21 day period he would do so. Not having told Compass Group that he was thinking of making an unfair dismissal claim, he was not dissuaded by the Employer from doing so. Nor did Compass Group mislead him about the alternate employment situation. The Notice of Termination made clear that alternate employment would be looked for but that in the absence of an alternate being offered and accepted, the dismissal would take effect on the stipulated date.

[71] Fourthly, it ultimately was not the search for alternate employment that prevented the application being filed on or before 18 February 2021. It was a combination of Mr Harvey’s miscalculation and his decision on 18 February 2021 to sleep on his drafted application until the following day.

[72] For these reasons, Mr Harvey’s desire to not wish to impair the pre and post dismissal dialogue about alternate employment, in the context of the need to establish exceptional circumstances, in part explains the delay but is not a particularly convincing explanation.

[73] Considered overall, the explanations for the delay, taken individually and collectively, do not weigh in favour of a conclusion of exceptional circumstances.

Awareness of the dismissal taking effect (section 394(3)(b))

[74] Mr Harvey was aware from 24 December 2020 that his employment would terminate on 28 January 2021 unless alternate employment was found and accepted. As by 28 January 2021 Mr Harvey had not received an offer of alternate employment, he knew that his employment would terminate that day on the terms of the 24 December 2020 letter.

[75] Mr Harvey was also in no doubt as to the stated reason for dismissal – his site access had been withdrawn by the Client.

[76] That he was well aware of the dismissal taking effect before and at the time of termination is a neutral consideration and does not weigh in favour of an extension of time.

Action taken to dispute dismissal (section 394(3)(c))

[77] Mr Harvey disagreed with the decision by the Client and questioned that decision prior to receiving the Notice of Termination. He has a sense of grievance and belief that his dismissal was harsh from the time of the notice, five weeks prior to his dismissal taking effect.

[78] I take into account the fact that Mr Harvey remained in dialogue with Compass Group about alternate employment and did not wish to sour relations further by flagging an unfair dismissal claim.

[79] In combination these considerations tend to counter-balance each other and are neutral in impact in considering whether exceptional circumstances exist.

Prejudice to the employer (section 394(3)(d))

[80] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances. 24

[81] Compass Group submit that it would incur prejudice including by having to defend a late claim and by future uncertainty as to how the statutory time limit would be applied.

[82] I do not accept this submission.

[83] A claim would have to be responded to, involving time and cost. However, the nature of the prejudice in this matter is not unique in any particular respect. Compass Group have the capacity to manage and defend litigation of this type. The one day delay creates no material prejudice.

[84] There is no prejudice simply by virtue of perceived uncertainty caused by the statutory rule of exceptional circumstances requiring case-by-case consideration. The proper application of a statutory rule cannot be a basis for asserting prejudice, real or imagined.

[85] However, the absence of prejudice would not itself be a reason to grant an extension.25

[86] This is a neutral consideration.

Merits of the application (section 394(3)(e))

[87] A hearing on merit will necessarily concern whether Compass Group acted fairly in deciding to dismiss once it was advised by the Client that Mr Harvey’s site access to McArthur River was withdrawn.

[88] This in part may involve considerations of the reasons for the site access being withdrawn, the rights and obligations of Compass Group vis-a-vis the Client, the employment contract between Mr Harvey and Compass Group and the steps Compass Group took or undertook to take to find alternate employment.

[89] I have not conducted a merits hearing and none of these issues have been canvassed in any detail. It is not possible to form a view, even a provisional or preliminary view, as to whether the merits of Mr Harvey’s case are strong or weak.

[90] In the circumstances, this is a neutral consideration.

Fairness between persons in similar position (section 394(f))

[91] No evidence or submissions from Mr Harvey or Compass Group raise issues of fairness with and between other persons.

[92] In these circumstances, this is not a relevant factor.

Conclusion on extension of time

[93] One factor weighs in Mr Harvey’s favour – that the delay period is very short, one day.

[94] However, that factor alone cannot constitute exceptional circumstances. The statute requires all relevant circumstances to be considered. It is not premised on the proposition that a short or very short period of delay necessarily warrants an extension of time. Indeed, to do so would be to subvert the statutory intention that the period for lodgement is 21 days and not more, save for exceptional circumstances.

[95] No circumstances weigh clearly in favour of a conclusion of exceptional circumstances, individually or in combination.

[96] Considered overall, I am not satisfied that exceptional circumstances exist. As recently noted by a full bench of the Commission, that bar is high, and late filing should not be encouraged. 26 Whilst Mr Harvey made a genuine miscalculation and whilst his decision to wait until the last day before filing was for an understandable (though not compelling) reason, the late filing was a combination of his choice (to wait until 19 February 2021) and his error (the miscalculation). The observations of Deputy President Gostencnik in Shaw v Australia and New Zealand Banking Group Limited are apposite:27

“…a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation.”

[97] There being no exceptional circumstances, the time for lodging the claim cannot be extended.

Conclusion

[98] As Mr Harvey’ application is out of time and as the time for lodgement has not been extended, it is unable to proceed further. The application is dismissed. An order28 to that effect is issued in conjunction with the publication of this decision.”

Harvey v Compass-Group (Australia) Pty Ltd (2021) FWC 1375 delivered 17 March 2021 per Anderson DP