This extract from a recent decision of the Fair Work Commission is a very rare example of a person succeeding in obtaining an extension of time to pursue an unfair dismissal case.
“4 Extension of time
[23] For the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act 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.
[24] Under s 394(2)(b) 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 in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that 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.5 It is accepted that exceptional circumstances can 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.6
[25] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench stated the following in respect of the assessment of exceptional circumstances:
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.7
4.1 Reason for the delay
[26] In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.8 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.
[27] The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.9 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.10
[28] As noted, the Applicant states that on 7 July 2024 he was on SEEK searching for employment. It was at this time that he came across an advert for what he claims was his ‘redundant position’. The Applicant acknowledged that the advertisement he was referring to was with ‘Tammar Contractors’, however he clarified that Tammar Contractors was the business with which the Respondent held a contract to provide labour. The Applicant stated that only Indigenous persons were directly employed by Tammar Contractors and those persons who were not Indigenous were employed by the Respondent. As a person who was not an Indigenous person, the Applicant said he had been employed by the Respondent and then a labour hire arrangement of sorts was made.
[29] In Mr Kelwin Smith v Penrite Oil Company t/a Penrite (Smith),11 the applicant, Mr Smith, filed his unfair dismissal application some 27 days late. Mr Smith’s position was made redundant on 1 May 2020, and he was dismissed on that same day. On 18 June 2020, he saw an advertisement on SEEK for a vacancy with his former employer, which he considered exactly the same as the role he had filled.12 It was found that Mr Smith had, on seeing the vacancy taken immediate steps to research on the Commission’s website how to challenge his dismissal and he made his application for unfair dismissal remedy immediately thereafter – on that same day. It was concluded that that Mr Smith had provided an acceptable explanation for the whole of the delay, which weighed in favour of a grant of an extension.
[30] Similarly, in Toni Perret v Ayers Real Estate (Perret), the applicant, whilst having considered making an unfair dismissal within the first week of her dismissal, did not, as she had no reason to suspect that the redundancy of her position may not be genuine. However, on 5 May 2020, the applicant found a private advertisement online (at seek.com.au) for a commercial property manager with an anonymous employer for which she applied. Then, on 7 May 2020, the applicant found an advertisement online (at indeed.com) for a commercial property manager with the Respondent employer. That same day, the applicant caused an application for unfair dismissal to be lodged with the Commission.
[31] In Perret it was found that on becoming aware that her dismissal, which took effect on 23 April 2020, may have been unfair, the applicant acted immediately and without delay to file the unfair dismissal application on 7 May 2020. It was therefore accepted that the applicant’s explanation for the period 23 April to 7 May 2020 was an acceptable or reasonable explanation and weighed in favour of a conclusion that there were exceptional circumstances.
[32] The circumstances of the Applicant in this case is somewhat analogous to those in Perret or in Smith. I accept that on viewing an advertisement on 7 July 2024 for a position that the Applicant considered was substantially similar if not the same as the one he had occupied, the next day he made his unfair dismissal application. I further accept that it was not until he viewed the advert on 7 July 2024 that the Applicant’s concern about the genuineness of his redundancy crystallised. At that point, it is evident that the Applicant was seized with urgency to make the unfair dismissal application having become aware of the advertisement and concluding that the redundancy of his position was not genuine and hence forming the view his dismissal was unfair. Further, I accept that the position advertised, that is the advertisement that the Applicant identified, was sufficiently similar to the position he had held whilst employed by the Respondent, notwithstanding the role was advertised with Tammar Contracting.
[33] Having regard to these matters, I am satisfied that the Applicant has provided an acceptable explanation for the whole of the delay. This weighs in favour of a finding of
exceptional circumstances.
4.2 Whether the person first became aware of the dismissal after it had taken effect
[34] The Applicant was advised of his dismissal by reason of redundancy on 4 June 2024. This was confirmed in a letter of that date. The Applicant therefore had the full 21-day period to lodge his application for an unfair dismissal remedy.
[35] This may weigh against the grant of an extension of time. However, I consider this to be a neutral consideration in light of the Applicant’s evidence, which I have accepted, that it was not until he viewed the advertisement on SEEK that he legitimately questioned the genuineness of the redundancy.
4.3 Action taken by the person to dispute the dismissal
[36] The Applicant did not take any action to dispute the dismissal prior to making the unfair dismissal application. However, I consider this factor neutral in all the circumstances.
4.4 Prejudice to the employer
[37] The Respondent submitted that the lateness of the application had been a burden in terms of cost and time pressures, as well has having disrupted the business daily tasks.
[38] However, I am satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now, than if the application had been made within the 21-day limitation period. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the grant of an extension of time. I consider this to be a neutral consideration.
4.5 Merits of the application
[39] In Telstra-Network Technology Group v Kornicki,13 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.14
[40] 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.15 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.
[41] Whilst this application to date has been hampered by a paucity of evidence, the evidence that has been advanced by the parties is sufficient for me to find that the Applicant’s case is not without merit. As such, the merits in this case are a neutral factor.
4.6 Fairness as between the person and other persons in a similar position
[42] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm, 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.16
[43] Based on the submissions filed, I am not satisfied that the criterion of fairness between However, at paragraphs [29] to [31] of this decision I highlight cases that are, on their face, analogous to the circumstances confronting the parties. Those cases support a finding of exceptional circumstances.
5 Conclusion
[44] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. The Applicant has provided a satisfactory explanation for the entirety of the delay in making his application and his application is not absent of merit. The remaining matters I need to consider either weigh toward a finding of exceptional circumstance or tell neither for nor against the application for an extension of time. In these circumstances, having considered all evidence and submissions, I find there are exceptional circumstances and consider it fair and equitable that an extension of time should be granted to the date the application was lodged.
[45] The Respondent’s jurisdictional objection with respect to the timeframe for lodgement is dismissed.17 The application will now be programmed in respect of the Respondent’s further jurisdictional objection and the merits of the matter. “
Norris v Bre Employment Pty Ltd [2024] FWC 2337 delivered 5 September 2024 per Beaumont DP