Unfair dismissal time limits; one day not extended

It is a difficult task to obtain an extension of time (in this case one day) from the Fair Work Commission. The “stringent” principles are on show in this extract from a decision in an application for an extension of time.

“[27] I have considered the delay as the period beyond the 21-day period, and while the application was made one day late, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the period (or part thereof) of the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

3.2 Whether the person first became aware of the dismissal after it had taken effect

[28] For the reasons detailed at paragraphs [9]-[14] of this decision, I am of the view that the Applicant became aware of his dismissal on 20 July 2021. I, therefore, consider this to be a neutral consideration.

3.3 Action taken by the person to dispute the dismissal

[29] By his letter of 23 July 2021, the Applicant had placed the Respondent on notice that he considered he had a case to instigate an unfair dismissal claim with the Commission. In his email correspondence to Mr Wans on 24 July 2021, he again raised making such a claim.

[30] It follows that there is evidence before the Commission that the Applicant took action to dispute his dismissal once it had taken effect on 20 July 2021. In all of the circumstances, I am satisfied that this favours there being exceptional circumstances.

3.4 Prejudice to the employer

[31] The Respondent has not contended that it is disadvantaged by the Applicant’s late unfair dismissal application. I therefore consider this factor to be a neutral consideration.

3.5 Merits of the application

[32] In Kornicki v Telstra-Network Technology Group, 15 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. 16

[33] Concerning the substantive application, the merits have not been fully tested. 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. 17 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.

3.6 Fairness as between the person and other persons in a similar position

[34] 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, 18 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. 19

[35] 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 by both parties.

4 Conclusion

[36] 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 of the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time.

[37] While appreciative that the delay in making the application was one day, having regard to the reasons for the delay in culmination with the other factors one considers under s 394(3), which are predominately neutral with the exception that the Applicant took steps to dispute his dismissal, it remains the case that it is not fair and equitable to grant an extension of time.

[38] In short, the Applicant demonstrated competence in his research regarding the making of an unfair dismissal application. He was not naïve to the process and appeared unaffected by a lack of clarity in his thought processes such as may arise from mental health issues. There was no direct evidence to support the impact upon him of other purported personal circumstances such as contending with the dismissal and subsequent issues, by himself.

[39] While the Applicant may have operated under the misapprehension regarding when his dismissal took effect such that he considered the 22 July 2021 to be the critical date as sign posting the time when the 21-day statutory period commenced, he was clearly cognisant of an application for unfair dismissal. Therefore, it was always open to him to research the point or seek advice on the same given he had researched other aspects of the Commission website. The Applicant’s unfamiliarity of the law does not assist him in this respect. As noted, the other factors considered under s 394(3) are predominately neutral except for the Applicant taking steps to dispute the dismissal.

[40] It follows that the Applicant’s application for an unfair dismissal remedy is dismissed. An Order 20 will be issued with this decision.”

Gill v IFM Services Pty Ltd (2021) FWC 5962 delivered 28 September 2021 per Beaumont DP