Unfair dismissal time limits; 29 minute delay “exceptional”

In the following extract from a decision of the Fair Work Commission, Commissioner Cambridge granted an extension of time in which to lodge an unfair dismissal claim by 29 minutes.

“[40] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case of Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  1. The consideration therein establishes a caution against adopting an overly stringent interpretation of what constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[41] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  2 and the following paragraph from that Decision is particularly helpful:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 3

[42] In this instance the exercise of the discretion to extend time has been required in respect of a delay of one day, or more precisely, 29 minutes. In this context the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration.

[43] The reason for the delay involved the applicant making additional checks to the information that she was providing in the application before she submitted the Form F2 document online. It appeared that the applicant was conscious of the 21 day time limit, and she had the intention of lodging online at some time before midnight on 31 May 2019.

[44] However, the applicant’s mental health issues appeared to have impacted upon her capacity to fulfil her intention to lodge before midnight. Having had the benefit of seeing and engaging with the applicant in person during the Pre-Hearing Conference, I have no reason to doubt that the applicant; (a) had the conscious intention to lodge the application within time on 31 May; and (b); her state of mental health caused delay with the lodgement at the time that she was preparing to lodge online, circa late evening 31 May; and (c); she held the genuine belief that the application would not be treated as being late because there was no identifiable practical impact of the application being lodged online 29 minutes after midnight on the 21st day after dismissal.

[45] Although it seemed that the applicant’s health issues would not have prevented her from lodging the application at some earlier time, perhaps a day or two before the last day, she nevertheless appeared to decide, for some unknown reason, to utilise the full 21 day time period. This decision of the applicant may have been connected with her mental health issues. Consequently, this is an unusual circumstance, particularly when considered in the context that the electronic online lodgement process can create something of an anomaly for applications made in the time period from close of business until midnight, which are made in time, but those after midnight are out of time, yet there is generally no practical difference generated by the late application when compared to that made in time.

[46] The applicant first became aware of the dismissal at the time that it had taken effect, 10 May 2019, and she took no action to dispute the dismissal other than to lodge the claim for unfair dismissal remedy. These factors do not provide assistance to the applicant in respect to any finding of exceptional circumstances.

[47] There was no prejudice to TransGrid identified including prejudice caused by the delay. The absence of any prejudice has provided assistance to the applicant’s case in support of a finding that exceptional circumstances existed.

[48] The apparent merits of the application were identifiable. Although no concluded view could be formed, certain material that was attached to the Form F2 application document was suggestive of an arguable case. For instance, it appeared that the first formal written advice to the applicant that the employer was considering termination of employment was contained in the misconduct notice that advised of the dismissal on 10 May 2019. Further, the termination pay advice provided to the applicant indicated that she had “BOOKED LEAVE” until 20/05/19. Consequently, the apparent merits of the case provided assistance in establishing exceptional circumstances.

[49] The other factors under consideration were of neutral impact.

Conclusion

[50] All of the factors mentioned in subsection 394 (3) of the Act have been taken into account. These factors have been carefully evaluated and balanced so as to provide for a comprehensive conclusion to be drawn having regard for all of the relevant issues. Factors involving the reason for the delay, the merits of the application and the absence of any prejudice to the employer, have, in combination, operated to satisfy the Commission that there are exceptional circumstances involving the application that was filed beyond the 21 day time limit established by subsection 394 (2) of the Act.

[51] Therefore, on balance, I have determined that exceptional circumstances have been established and it would be just and equitable for the Commission to exercise the discretion to extend time. An Order [PR713591] made pursuant to subsection 394 (3) of the Act allowing a further period until 1 June 2019 for the application to be made will be issued in conjunction with this Decision.”

Bali v NSW Electricity Networks Operations Pty Ltd T/A TransGrid – [2019] FWC 7247 – 23 October 2019 – Cambridge C