1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Keira Fletcher
v
Little Darlings Early Development Centre
(U2015/11175)
COMMISSIONER JOHNS SYDNEY, 10 NOVEMBER 2015
Application for relief from unfair dismissal.
Introduction
[1] On 13 October 2015 the Fair Work Commission (Commission) issued an Order1
refusing an application for an extension of time by Ms Keira Fletcher (Applicant) and
dismissing her application for an unfair dismissal remedy.
[2] On 21 October 2015 the Applicant requested reasons for that decision. These are those
reasons.
[3] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal
remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days
after the dismissal took effect. 2 However, the Commission may allow a further period for
lodgement in exceptional circumstances.3
[4] The Applicant made an application for a further period for lodgement of her
application for an unfair dismissal remedy in circumstances where her completed application
was lodged on 20 August 2015, that being 24 days after her employment was terminated by
Little Darlings Early Development Centre (Respondent) on 27 July 2015.
The jurisdictional objection
[5] On 10 September 2015 the Respondent indicated its objection to the Commission
exercising its jurisdiction to deal with the Application because it was lodged later than the
21 days after the dismissal took effect.
[6] On 15 September 2015, the Commission wrote to the Applicant, outlining the matters
the Commission was required to consider under the FW Act and asked her to provide a
statement addressing those matters within 14 days. The Applicant was advised that unless she
requested otherwise the matter would be dealt with on the papers.
[2015] FWC 7556 [Note: An appeal pursuant to s.604 (C2015/8012) was
lodged against this decision and the order arising from this decision - refer
to Full Bench decisions dated 1 April 2016 [[2016] FWCFB 2076] for
result of appeal and Full Bench decision dated 5 May 2016 [[2016]
FWCFB 2810] for result of appeal.]
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB2810.htm
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB2810.htm
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB2076.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr572915.htm
[2015] FWC 7556
2
[7] On 17 September 2015 the Applicant sent correspondence to the Commission
providing reasons for the delay in lodgement. In short the Applicant says that, although the
termination took effect on 27 July 2015:
a) she had not been officially advised that her services were no longer required;
b) she was unaware that she could dispute the dismissal and this lack of knowledge
affected the timing of the application; and
c) as she had not been advised that she had been dismissed she was of the view that the
application was made within time.
[8] On 1 October 2015 the Respondent filed its submissions in relation to the Applicant’s
application for an extension of time. In short, the Respondent says:
a) the Applicant was covering staff leave and was not going to be assured of any hours
after 27 July 2015; and
b) as the Applicant was employed on a casual basis it was unaware that she needed to be
informed that she would not be called in for anymore work.
Legislative scheme
[9] Relevant to the Commission considering whether an extension of time to lodge the
application should be granted is s 394(3) of the FW Act:
(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(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.
[10] Section 394(3) of the FW Act states that the Commission may allow a further period
to lodge an application provided there are “exceptional circumstances” taking into account the
five nominated criteria. The principles are well established and set out in a decision of a Full
Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star
Group.4 In that matter the Full Bench held the following in relation to “exceptional
circumstances”:
[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
[2015] FWC 7556
3
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. 5
Consideration
Paragraph 394(3)(a) - The reason for the delay
[11] It is indisputable that there were 24 days between the Applicant’s last rostered shift
and when an application was filed with the Commission.
[12] The Applicant says the reason for the delay was that she had not been formally
advised her services were no longer required and she was not aware she could dispute the
dismissal. However, the Applicant was aware of the date that she last worked for the
Respondent. The 21 day period ran from this date. The lack of awareness by the Applicant is
not a basis to grant an extension of time. It is well established that ignorance of the timeframe
is not an exceptional circumstance.
[13] The reasons advanced by the Applicant were not out of the ordinary, unusual or
uncommon.
[14] This factor weighed against granting the applicant a further period for lodging his
unfair dismissal application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had
taken effect
[15] The Applicant submits that she was not advised of her dismissal, however, despite
having previously been regularly rostered for shifts she has not been rostered to work since
her last shift on 27 July 2015.
[16] The Respondent submits that the Applicant was advised that she would not be assured
of being rostered to work from around 27 July 2015.
[17] This factor weighed against granting the Applicant a further period to make her
application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[18] The Applicant did not indicate that she took any action to dispute the dismissal aside
from the filing of this application.
[2015] FWC 7556
4
[19] This factor weighed against granting the Applicant a further period to make her
application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[20] The Respondent did not disclose that it would suffer any prejudice as a result of the
delay in the filing of the application.
[21] Prejudice to the employer was a neutral consideration.
Paragraph 394(3)(e) - The merits of the application
[22] In the matter of Kornicki v Telstra-Network Technology Group6 the 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 Commission said:
“The merits of the substantive application. If the application has no merit then it
would not be unfair to refuse to extend the time period for lodgment. 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.”7
[23] The Commission, as presently constituted, adopted this reasoning of the Full Bench of
the former Commission in relation to the consideration of merits.
[24] It is an accepted practice in jurisdictional hearings that the Commission not embark
upon a detailed consideration of the substantive case. In a jurisdictional hearing the
Commission is not in a position to make findings of fact on contested issues. That is an
assignment to be undertaken by the Commission during the substantive hearing.
[25] For present purposes the Commission, as presently constituted, is satisfied that the
Applicant’s case is not one that is without merit or lacking in any substance.
[26] If the Applicant can establish to the satisfaction of the Commission that the dismissal
was due to her filing a complaint with the Department of Education then she may well be able
to establish that the termination of her employment was harsh, unjust or unreasonable. It
would be open to the Commission, after considering each of the elements of section 387 of
the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or
unreasonable.
[27] Because the Applicant’s case was not without merit or lacking in any substance, this
factor weighed in favour of granting her a further period to make her application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[28] I am satisfied that there were no other persons in a similar position to that of the
Applicant. This was a neutral factor for consideration.
[2015] FWC 7556
5
Conclusion
[29] For the reasons set out above, on balance, in the exercise of my discretion the
Commission as presently constituted was not satisfied that there were exceptional
circumstances warranting the Applicant being allowed a further period for her application to
be made (i.e. being granted an extension of time to lodge his application). An Order to this
effect was issued on 13 October 2015.8
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code C, PR573556
1 PR572915.
2 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of
the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified
day’ the period ‘does not include that day’).
3 Section 394(3) FW Act.
4 [2011] 203 IR 1
5 Above note at [13].
6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
7 Ibid.
8 PR572915.
WORK COMMIS SSION THE SEAL OF THE F
