1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kristen Collier
v
Saltwater Freshwater Arts Alliance Aboriginal Corporation
(U2016/1189)
COMMISSIONER SAUNDERS NEWCASTLE, 1 JUNE 2016
Application for relief from unfair dismissal – refusal of application to extend time
Introduction
[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair
dismissal remedy made pursuant to section 394 of the Act must make an application within 21
days after the dismissal took effect.1 However, the Fair Work Commission (the Commission)
may allow a further period for the application to be made in exceptional circumstances.2
[2] This decision concerns whether I should exercise my discretion to allow Ms Kristen
Collier (the applicant) a further period for her unfair dismissal application (the Application) to
be made.
The jurisdictional objection
[3] On 30 May 2016, a hearing was conducted in relation to the applicant’s application for
an extension of time.
[4] The applicant tendered a number of documents and gave oral evidence in support of
her application. The respondent cross examined the applicant, but did not call any witnesses
or tender any documents.
Legislative scheme
[5] Section 394(3) of the Act states that the Commission may allow a further period for an
applicant to make an unfair dismissal application if the Commission is satisfied that there are
“exceptional circumstances”, taking into account the following six criteria:
1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment 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’).
2 Section 394(3) of the Act.
[2016] FWC 2899
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 2899
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“(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.”
[6] The principles are well established and are 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.3 In that
matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:
“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.”
[7] Ignorance of the timeframe for making an application for unfair dismissal is not an
exceptional circumstance.4
Consideration
Paragraph 394(3)(a) - reason for the delay
[8] A dismissal does not take effect unless and until it is communicated to the employee
who is being dismissed.5 A dismissal can be communicated orally.6
3 [2011] 203 IR 1
4 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
5 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C,
21 November 2000) Print T3496 at [24].
6 Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.
http://www.fwc.gov.au/decisionssigned/html/Q9605.htm
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Plaksa_v_Rail_Corp.pdf
http://www.fwc.gov.au/decisionssigned/html/T3496.htm
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[9] There must be an acceptable reason for the delay in making the unfair dismissal
application.7
[10] The applicant must provide a credible reason for the whole of the period that the
application was delayed.8
[11] The delay required to be considered is the period beyond the prescribed 21 day period
for making an application. It does not include the period from the date of the dismissal to the
end of the 21 day period. However, the circumstances from the time of the dismissal must be
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.9 In Diotti v
Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the
correct approach by reference to the following example:10
“For example if an applicant is in hospital for the first 20 days of the 21 day period this
would be a relevant consideration if the application was filed 2 days out of time as
occurred in this matter.”
Summary of positions taken by each party in relation to the date of dismissal
[12] In her Application, the applicant states that:
(a) she was notified of her dismissal on 22 February 2016; and
(b) her notice of termination was effective immediately, but she was asked by the
respondent’s bookkeeper to process the organisation’s payroll on 25 February 2016
and she did so. That is the last day the applicant worked for the respondent.
[13] The respondent contends that the applicant resigned with effect on 29 January 2016,
but for the purpose of determining the applicant’s application for an extension of time the
respondent informed the Commission that it would take the applicant’s case at its highest and
assume the dismissal took effect on 22 February 2016. Even on that assumption, the
respondent submits there are no exceptional circumstances to warrant an extension of time. In
the event that such an extension is granted, the respondent will contend at any final hearing
that the applicant’s employment came to an end on 29 January 2016 by reason of her
resignation.
Relevant chronology of events
[14] The applicant submitted a letter of resignation to the respondent on 13 January 2016.
The letter stated that her employment would come to an end on 29 January 2016.
[15] The applicant contends that on 18 January 2016 she agreed with three members of the
respondent’s Board to extend her resignation date until 22 April 2016, and she continued to
7 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
8 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9
9 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac
Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016]
FWCFB 349 at [29]-[31]
10 [2016] FWCFB 349 at [31]
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work for and be paid by the respondent up until 22 February 2016. The respondent disputes
that there was any agreement with the Board to extend her date of resignation. I do not need to
resolve this factual dispute in order to determine the out of time question because the
respondent has taken the position set out in paragraph [13] above.
[16] A letter dated 22 February 2016 was sent by the respondent to the applicant by email
at 6:40pm on 22 February 2016. The applicant read the letter on 23 February 2016. The
subject of the letter was “Re: Your letter of resignation”. The letter referred to the applicant’s
letter of resignation effective as of Friday, 29 January 2016. It also contained, inter alia,
statements to the following effect:
The Board did receive and acknowledge the applicant’s letter of resignation as of
Friday, 29 January 2016;
Thanking the applicant for her time and effort during her “stay with
Saltwater/Freshwater Arts Alliance”;
Asking the applicant to “forward our bank tokens on to Tovanti [the respondent’s
bookkeeper] who will now be responsible for payments of Saltwater/Freshwater Arts
Alliance staff payments and accounts as from the commencement of this day
Monday 22 February 2016”; and
Wishing the applicant “all the very best in the future”.
[17] The respondent’s pay records show that the last work date for which the applicant was
paid was 22 February 2016.
[18] By email dated 23 February 2016 to Mr Harry Phillip Hall, Chairperson of the
respondent, the applicant referred to the agreement she says had been made to change her
resignation date to 22 April 2016 and asked what the letter meant and whether she was still
employed. The respondent did not respond to that email until 16 March 2016.
[19] The applicant was concerned that the respondent’s payroll and payables were due on
Thursday, 25 February 2016 and she was the only person in the organisation authorised to
make the necessary payments. The applicant raised this issue with Mr Hall in her email of 23
February 2016. Having not received a response, the applicant contacted the respondent’s
payroll contractor, Tovanti Master Bookkeeping, on 24 February 2016 and informed them
that she was trying to confirm her employment position with the respondent, but she was
aware that payroll was due the following day and she felt she had a moral duty to ensure that
staff get paid on time. As a result, the applicant informed Tovanti that she was “willing to do
what is needed to ensure that payroll happens”. The applicant proceeded to undertake about
2.5 hours work on 25 February 2016 from her home in order to assist Tovanti to process the
payroll the following day. The applicant was not directed or requested by any person on
behalf of the respondent to do that work. She submitted a timesheet to the respondent for her
work on 25 February 2016 but was not paid for that work.
[20] On 29 February 2016, the applicant sent an email to Mr Hall, asking him to confirm
receipt of her email dated 23 February 2016. The respondent did not respond to that email
until 16 March 2016.
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[21] On 7 March 2016, the applicant sent a further email to Mr Hall in which she asked the
following questions:
(a) “On what grounds have I been dismissed?”
(b) “Under my contract I require five weeks’ notice for dismissal. Does the Board intend
to pay out the five weeks from 23 February 2016 or is there another arrangement that
needs to be negotiated?”
[22] Again, the respondent did not respond to that email until 16 March 2016. On 17 March
2016 the applicant read the letter to her from Mr Hall dated 16 March 2016, in which Mr Hall
stated, inter alia, the respondent “did consider your letter of resignation and accepted it in its
entirety; this was confirmed in writing to you from SWFWAA [the respondent] on 22nd
February 2016”.
Findings concerning date of dismissal and reasons for delay in making the Application
[23] I agree with the applicant’s statement in her Application that she was notified of her
dismissal on 22 February 2016 and it took effect on that day. In my view, the letter from the
respondent to the applicant dated 22 February 2016 and emailed to her on that date would
have been interpreted by any reasonable person in the position of the applicant to be a
notification that their employment with the respondent had come to an end. The elements of
the letter set out in paragraph [16] above are indicative of the employment relationship having
ceased. The fact that the applicant was not paid after 22 February 2016 is consistent with such
a conclusion. Further, it is clear from the applicant’s email dated 7 March 2016 that she
understood, by that time, that her employment with the respondent had come to an end by
reason of the letter of 22 February 2016 and the lack of any response to her subsequent
correspondence.
[24] The fact that the applicant undertook about 2.5 hours work (for which she was not
paid) for the benefit of the respondent on 25 February 2016 does not alter my opinion as to
when her employment with the respondent came to an end. The respondent did not request or
direct the applicant to undertake that work. The applicant did that work, to her credit, because
she felt she had a moral duty to the employees of the respondent to ensure they were paid
their wages on time. It was the applicant who contacted the bookkeeper and offered to do the
work in order to have the payroll processed on time. The bookkeeper requested the applicant
to undertake the work. The bookkeeper did not have authority to employ or dismiss the
applicant.
[25] The 21 day time period for the applicant to make her unfair dismissal application
expired on 14 March 2016.11 Given that the applicant completed her Application on 17 March
2016 and it was lodged with the Commission on the same date, the Application was made
three days late.12
[26] In accordance with the principles summarised in paragraphs [8] to [11] above, the
delay required to be considered is the period beyond the prescribed 21 day period for lodging
an application. In this case, that is the period from 14 to 17 March 2016. However, the
11 That is, 21 days from 22 February 2016 (not including 22 February) is 14 March 2016.
12 That is, 17 March 2016 is 3 days after 14 March 2016.
[2016] FWC 2899
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circumstances from the time of the dismissal (22 February 2016) must be 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.
[27] The applicant relies on the following reasons for the delay in filing her Application
from 22 February 2016 to 17 March 2016:
(a) the applicant was on sick leave from 9 until 23 February 2016 inclusive. A medical
certificate was provided to support this claim, but it does not specify the nature of the
illness, nor does it explain how any such illness prevented the applicant from making
an unfair dismissal application;
(b) the applicant was on approved leave from 16 February 2016 to 4 March 2016;
(c) in light of the applicant’s belief that she had agreed with the respondent on 18 January
2016 to extend the date of her resignation to 22 April 2016, the applicant was
confused when she received the respondent’s letter dated 22 February 2016. I accept
that the applicant was genuinely confused when she received that letter;
(d) because the applicant did not receive a response to her emails of 23 February, 29
February and 7 March 2016 until 16 March 2016, she says that she remained confused
as to whether she was still employed by the respondent and what her rights were in
relation to payments owing to her on termination. It is clear from the applicant’s email
of 7 March 2016 that she was no longer confused by 7 March 2016 about whether she
had been dismissed. Her only confusion at that time was (i) why she had been
dismissed and (ii) what she was entitled to be paid on the termination of her
employment. Confusion over the reasons, or lack thereof, for a dismissal is not a
reasonable explanation for a failure to file an unfair dismissal application within 21
days, nor is confusion over the payment of entitlements on termination; and
(e) the applicant took some time from 7 March 2016 to research her rights in relation to
the termination of her employment. In particular, the applicant called representatives
from the Fair Work Commission and the Fair Work Ombudsman and spoke to them
about her rights in connection with the termination of her employment. Taking time to
research such matters is not, in my view, an exceptional circumstance.
[28] While I am sympathetic to the applicant’s circumstances, I am not persuaded that the
applicant’s difficulties were out of the ordinary course, unusual, special or uncommon.
[29] This factor weighs against granting the applicant an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had
taken effect
[30] In accordance with my earlier finding, the applicant first became aware of the
dismissal on 23 February 2016. That was the day after the dismissal took effect. The applicant
had 20 days after reading the letter dated 22 February 2016 to make her application. This
weighs against a finding that there are exceptional circumstances.
[2016] FWC 2899
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Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
[31] Action taken by the employee to contest the dismissal, other than lodging an unfair
dismissal application, may favour granting an extension of time.13
[32] The applicant clearly disputed the respondent’s assertion that her employment had
come to an end by reason of her resignation and put the respondent on notice that she would
challenge the fairness of her dismissal. This weighs in favour of a finding that there are
exceptional circumstances.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
[33] Prejudice to the employer will weigh against granting an extension of time.14
However, the “mere absence of prejudice to the employer is an insufficient basis to grant an
extension of time”.15
[34] A long delay gives rise “to a general presumption of prejudice”.16
[35] The employer must produce evidence to demonstrate prejudice. It is then up to the
employee to show that the facts do not amount to prejudice.17 No such evidence was adduced
by the respondent in this case.
[36] Noting that the delay was three days, I am satisfied that there would be no greater
prejudice to the respondent caused by the Application being dealt with now than there would
have been had it been made within the 21 day time period. Accordingly, prejudice to the
respondent is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
[37] In Kornicki v Telstra-Network Technology Group18 the Commission considered the
principles applicable to the extension of time discretion under the former section 170CE(8) of
the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“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.”19
13 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
14 Ibid.
15 Ibid.
16 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
17 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February
2003) PR927201 at [16]
18 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
19 Ibid.
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[38] 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”20 for the
purpose of determining whether to grant an extension of time to the applicant to lodge her
Application.
[39] I adopt this reasoning in relation to my consideration of the merits of the Application.
[40] The applicant contends that her resignation on 13 January 2016 was overtaken by an
agreement she reached with members of the Board of the respondent on 18 January 2016 to
continue working for the respondent until 22 April 2016. The applicant submits that she was
dismissed by the respondent, she was not given any reason(s) for her dismissal, and her
dismissal was harsh, unjust and unreasonable. The respondent submits that the applicant
resigned and in any event says any termination of her employment was not harsh, unjust or
unreasonable. The respondent also points to the fact that it is, and was in February 2016, a
small business employer.
[41] I am not able to make an assessment of the merits as there are factual disputes between
the parties that have not been tested. I consider this criterion to be neutral.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
[42] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm21 considered this
criterion and said (at [29]) “cases 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”.
[43] I am satisfied that the issue of fairness as between the applicant and other persons in a
similar position is not a relevant consideration in this matter.
[44] Because it is not a relevant factor it is a neutral consideration in determining whether
to grant an extension of time.
Conclusion
[45] Having taken into account the matters referred to in paragraphs [12] to [44] above, I
am, on balance, not satisfied that there are exceptional circumstances warranting the applicant
being allowed a further period for the Application to be made. The applicant’s circumstances
were not out of the ordinary course, unusual, special or uncommon.
20 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
21 [2015] FWC 8885
http://www.fwc.gov.au/decisionssigned/html/2015fwc8885.htm
[2016] FWC 2899
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[46] Accordingly, the application for an extension of time is refused. The jurisdictional
objection is upheld and the substantive Application for an unfair dismissal remedy is
dismissed.
COMMISSIONER
Appearances:
Ms K Collier on her own behalf;
Mr B Miles, of counsel, together with Ms B Pendlebury, solicitor, on behalf of the respondent.
Hearing details:
2016.
Newcastle:
May, 30.
Printed by authority of the Commonwealth Government Printer
Price code C, PR580152
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