1
Fair Work Act 2009
s.365—General protections
Sarina Galati
v
Veneto Club
(C2014/6091)
COMMISSIONER JOHNS MELBOURNE, 18 NOVEMBER 2014
Application to deal with contraventions involving dismissal - whether to extend time for
lodging the application.
Introduction
[1] On 27 August 2014 Sarina Galati (Applicant) lodged an application with the Fair
Work Commission (Commission) pursuant to s 365 of the Fair Work Act 2009 (Act). The
Respondent to the application is the Veneto Club (Respondent).
[2] On 18 September 2014 the Respondent filed its response to the application.
[3] It is common ground between the parties that the Applicant was issued with a
termination letter on 25 July 2014. The general protections application was received by the
Commission on 27 August 2014. As such the application was lodged 12 days outside of the
21 day time limit for making the application.
[4] Because the application was lodged out of time it is necessary for the Commission to
first determine whether to allow a further period for the application to be made (i.e. decide
whether to grant an extension of time). Under section 366(2) of the Act the Commission may
allow a further period if it is satisfied that there are exceptional circumstances.
[5] On 30 September 2014 the Commission issued directions for the parties to file and
serve submissions and any evidence in relation to the out of time issue. On 2 October the
Applicant filed her material. A number of pages were missing and the material was re-filed in
complete form on 28 October 2014. On 8 October 2014 the Respondent filed its submissions.
Legislative scheme
[6] Subsection 366(1) of the Act provides that an application under section 365 must be
made within 21 days after the dismissal took effect:
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
[2014] FWC 7947[Note: Appeals pursuant to s.604 (C2014/8162) were
lodged against this decision - refer to Full Bench decision dated 30 January
2015 [[2015] FWCFB 521] and 10 April 2015 [[2015] FWCFB 1830]]
respectively for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB1830.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB521.htm
[2014] FWC 7947
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(b) within such further period as the FWC allows under subsection (2).
[7] Subsection 366(2) of the Act provides that the Commission may allow a further period
for an application to be made if it is satisfied there are exceptional circumstances. The
Commission in concluding whether exceptional circumstances exist must take into account
the following factors:
(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[8] A Full Bench of the Commission has held the following in relation to “exceptional
circumstances”:1
[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.
[9] As can be seen above, an unfair dismissal application “must be made” within 21 days
or a further period allowed by the Commission. The words must be made are not defined in
the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013.
Rule 13 deals with lodgement of documents in the Commission and provides as follows:
“13 General requirements for lodging documents
...
(2) A document must be lodged with the Commission by:
(a) physically delivering the document to an office of the Commission between 9 am
and 5 pm on a business day; or
(b) sending the document by post to an office of the Commission; or
[2014] FWC 7947
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(c) emailing the document in accordance with rule 14; or
(d) using the Commission’s electronic lodgment facilities in accordance with rule 15;
or
(e) faxing the document in accordance with rule 16.”
Consideration
The reason for the delay
[10] The Applicant provides the following reasons for the delay:
(a) From 28 July 2014 to 8 August 2014 she was attempting to contact her
apprenticeship provider to confirm whether they had been notified of her
termination;
(b) From 9 August 20014 to 16 August 2014 she states she had an adverse reaction
to medication which compromised her ability to concentrate and remain
focussed. The Applicant attached to her submission a number of medical
certificates. None of the medical certificates specifically cover the 9-16 August
2014 period. However;
(i) A medical certificate dated 20 August 2014 from Fawkner
Health Care certified that the Applicant presented to the clinic
on 12 August 2014 with a medical condition which included
drowsiness and fatigue.
(ii) A medical certificate dated 4 July 2014 certified that the
Applicant has been suffering choric fatigue for the last two
years.
(c) On 10 August 2014 she was involved in a not at fault car accident which
resulted in her being engaged in phone calls with the insurance companies and
other driver for numerous days; and
(d) On 20 August 2014 she attempted to lodge her application via the e-filing
system on the Commission’s website. After numerous failed attempts she was
advised to submit the application by email. She says that she was initially
advised of the incorrect email address, and on 27 August 2014 she managed to
find the correct email address and filed her application. The Applicant also
noted that she does not have internet access at her place of residence which
affected her ability to lodge the application.
[11] The Respondent submits that the Applicant has not provided an acceptable reason for
the delay. It submits that:
(a) The investigations made by the Applicant with her apprenticeship provider
were not such that this prevented her from attending to her Application;
(b) There is no medical evidence for the period of 9 to 16 August 2014 to
demonstrate that the Applicant was medically unfit to attend to her
[2014] FWC 7947
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Application. Based on the submissions of the Applicant it is evident that she
was involved in and responded to matters pertaining to her insurance claim for
a motor vehicle accident during this period, which is inconsistent with her
being medically incapacitated for this period;
(c) Whilst the material submitted by the Applicant establishes that she was
involved in a motor vehicle accident, there is no evidence of medical treatment
or incapacity arising from this accident;
(d) The events relating to the Applicant’s alleged difficulty in filing the
Application took place 5 days outside the 21 day period. Further, the Applicant
fails to identify taking any reasonable steps to ensure that the Application was
filed correctly.2
[12] The Commission is not satisfied that the Applicant has provided an acceptable reason
for delay. The Applicant first attempted to lodge her application on 20 August 2014. At this
time the application was already 5 days out of time. The investigations she was making with
her apprenticeship provider did not prevent her from attending to a general protections
application. The Applicant did not provide the Commission with evidence to establish that she
was unwell and unable to lodge an application from 9 to 16 August 2014. The Commission
accepts that the Applicant may have been suffering a fatigue related illness, however on her
own evidence she was still capable of dealing with insurance companies.
[13] This factor weighs against considering whether to exercise the discretion to allow a
further period for the Applicant to lodge her application.
Any action taken by the person to dispute the dismissal
[14] The Applicant states in her Form 8 application that she was provided with letter of
termination during a disciplinary meeting on 25 July 2014. She states that she did not agree to
or sign the termination letter. Her last pay slip was dated 29 July 2014. She says that she was
not sure of her official date of termination.
[15] She does not make any further submissions about any attempt to dispute the dismissal.
[16] This factor is neutral in considering whether to exercise the discretion to allow a
further period for the Applicant to lodge her application.
Prejudice to the employer (including prejudice caused by the delay)
[17] The Respondent does not claim that the 12 day delay in lodging the application caused
it prejudice, other than the additional time and expense objecting to the extension of time.3
[18] A long delay can give rise to a presumption of prejudice.4 Given the delay in this
matter is twelve days, this is not relevant in the circumstances.5
[19] This factor favours exercising the discretion to allow a further period for the Applicant
to lodge her application.
[2014] FWC 7947
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The merits of the application
[20] The Commission notes that, for the purpose of determining whether to grant an
extension of time to the Applicant to file her application, it “should not embark on a detailed
consideration of the substantive case.”6
[21] The Respondent submits that it is not a highly meritorious application and that the
Commission should not be persuaded to exercise its power to allow an extension of time. The
Respondent says that it dismissed the Applicant on the basis that she had repeatedly failed to
attend or was late in attending her school or work.
[22] The Applicant submits she attended work late for a number of reasons. She said that
she was late to work partially because of her illness. She also claims she was late for work due
to the long hours she was required to work, which she says were not in line with the relevant
award.
[23] The Applicant also submits that the Respondent reacted adversely to events
surrounding her workplace injury on 17 July 2014. From the material filed it is not clear what
led to the injury however the Applicant provided the Commission with a medical certificate
dated 17 July 2014 confirming she was unfit for work 18 to 19 July 2014.
[24] This factor is neutral in considering whether to exercise the discretion to allow a
further period for the Applicant to lodge her application.
Fairness as between the person and other persons in a similar position
[25] This factor does not appear to be relevant in the circumstances as there are no persons
in a similar position.
Conclusion
[26] In establishing whether exceptional circumstances exist the Commission must take
into account the factors listed in s.366(2) of the Act. The expression “exceptional
circumstances” while not specifically defined in the Act has been accepted in this
Commission as circumstances which need not be unique, unprecedented, or very rare; but
they cannot be circumstances that are regular, routine, or normally encountered.
[27] A conclusion that there are exceptional circumstances, taking into account the
statutory considerations is required before the discretion to extend time can be exercised. The
discretion should be exercised having regard to all of the circumstances including the
legislative considerations and will come down to a contemplation of whether, given the
exceptional circumstances found, it is fair and equitable that time should be extended. (see
Nulty v Blue Star Group Pty Ltd7)
[28] Suffice to say it is not enough for the Applicant to establish an acceptable explanation
for delay, without also establishing that the reason is an exceptional circumstance or part of a
number of factors, which when viewed jointly, represents exceptional circumstances.
[29] The Applicant’s explanation for the late lodgement of her application was that she was
busy dealing with her apprenticeship provider and insurance companies. She says she was
[2014] FWC 7947
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unwell whilst also suffering from a fatigue related illness. The first attempt that she made at
lodging an application was already 5 days out of time. There was nothing preventing the
Applicant from asking for help from a family member or friend to lodge the application.
[30] The Applicant also notes she does not have internet access at her place of residence.
However, the applications can be filed in the Commission a number of ways including by
delivering it by hand or sending it by post.
[31] In considering all of the circumstances related to Applicant’s application, and on the
basis of the evidence provided by the parties, the exceptional circumstances envisaged by
s 366 of the Act to exercise the discretion to allow a further period within which to lodge the
application do not arise in this case.
[32] The period for the Applicant to lodge her application is not extended. The application
is dismissed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code A, PR557535
1 Nulty v Blue Star Group, 2011, 203 IR 1 at [13].
2 Respondent Submission dated 8 October 2014, para 6
3 Submissions of the Respondent date 8 October 2014, para 10
4 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.
5 See Carfoot v SAC Sydney Archdiocese T/A St Vincent De Paul Society [2010] FWA 4080.
6 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
7 [2011] FWAFB 975
