1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Crystal Giles
v
Coal Train Australia Pty Ltd
(U2020/925)
DEPUTY PRESIDENT ASBURY BRISBANE, 1 MAY 2020
Application for an unfair dismissal remedy – Application filed outside time required in s.
394(a) – Applicant failed to comply with Directions – Applicant asserted technical difficulties
with filing her application as reason for delay – Insufficient evidence of technical difficulties
– No exceptional circumstances established – Extension of time to make application refused –
Application dismissed.
OVERVIEW
[1] Ms Crystal Giles (the Applicant) applies under s.394 of the Fair Work Act 2009 (the
Act) for an unfair dismissal remedy in respect of her dismissal by Coal Train Australia Pty
LTd (the Respondent). The Form F2 Application for an unfair dismissal remedy filed by the
Applicant and the Form F3 Employer Response to an unfair dismissal application filed by the
Respondent, state that the Applicant was notified of her dismissal on 3 January 2020 and it
took effect on that date.
[2] Section s.394(2) of the Act provides that an application for an unfair dismissal remedy
must be made within 21 days after the dismissal took effect or within such further period as
allowed by the Fair Work Commission (the Commission) under s. 394(3). To meet the time
requirement in s. 394(2) of the Act the Applicant was required to make her application by 24
January 2020. The Applicant did not lodge her application until 28 January 2020 – four days
outside the prescribed period.
[3] The Respondent objects to the application on the basis that it was made outside the
time required in s. 394(2) and further asserts that the dismissal was a case of genuine
redundancy. It is therefore necessary to determine whether a further period should be allowed
under s.394(3) of the Act for the application to be made. In addition to its jurisdictional
objections, when the Applicant did not comply with a series of Directions issued by the
Commission the Respondent filed an application under s. 399A seeking that her application
be dismissed.
[4] At a hearing on 22 April 2020 I informed the parties that I had decided that there were
not exceptional circumstances and that I would not to exercise the discretion in s. 394(3) to
[2020] FWC 2274
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 2274
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grant a further period for the Applicant to file her unfair dismissal application. I also
informed the parties that I would issue reasons for that decision in due course. These are my
reasons.
BACKGROUND
[5] As noted above, the Commission’s records indicate that the Applicant lodged her
unfair dismissal application on 28 January 2020. The application was incomplete and
following correspondence sent from the Commission the Applicant filed a completed
application. The matter was listed for conciliation, before a Fair Work Commission
Conciliator, on 4 March 2020, and was not resolved.
[6] On 10 March 2020, the Associate to Vice President Catanzariti sent correspondence to
the Applicant advising that the application had been received outside of the 21 day legislated
time frame and that before the merits of the application could be determined a decisions
would need to be made by the Commission to extend the time in which the Applicant was
allowed to lodge the application. The Applicant was also advised that the Commission may
extend the time period for lodging an unfair dismissal application only if satisfied that there
were exceptional circumstances and setting out the matters the Commission is required to
consider in deciding whether to grant a further period under s.394(3) of the Act. The
Applicant was invited to provide a response by 17 March 2020.
[7] The Applicant responded by email on 10 March 2020 stating that she had “registered
the unfair dismissal claim on the 23rd or 24th” and had completed the form online, however “it
timed out and I believed my form had been submitted.” The Applicant also stated that as she
had not received an email in the following days, she contacted the Commission and was
advised her online lodgement form did not submit properly. The Applicant further stated that
she did not lodge her application prior to 23 January 2020 as she was unable to afford the
application fee, and only became aware of the Form F80 – Waiver on the same date.1
[8] The matter was allocated to me for hearing on 11 March 2020. A notice of listing was
issued on 23 March 2020, for a Mention/Directions Conference by telephone on 31 March
2020. On 27 March 2020 the Applicant contacted my Associate as requested in the Notice of
Listing and confirmed her contact telephone details for the Conference.
[9] On 31 March 2020 at the commencement of the Conference, my Associate attempted
to contact the Applicant on multiple occasions but was unable to contact her on the mobile
telephone number she had provided. The Respondent attended the telephone conference. The
conference did not proceed because the Applicant was not available. Notwithstanding the
Applicant’s failure to attend the conference, Directions were issued requiring the Applicant
and the Respondent to file material in relation to whether a further period should be allowed
for the application to be made.
[10] Relevantly, the Directions issued on 31 March 2020 set out the matters in s. 394(3)
that the Commission is required to consider in deciding whether to grant a further period and
required that the Applicant file a statement by 4:00pm on Tuesday 7 April 2020, addressing
those matters. The Directions also required that any documents the Applicant sought to rely
on be appended to the statement and that the statement include an explanation in relation to
the relevance of the document. A link to a template was also provided to assist the Applicant
to prepare her statement.
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[11] The Directions stated under a heading “NON COMPLIANCE WITH THESE
DIRECTIONS” that the Commission would not accept material that was filed after the
expiry of a time specified in the Directions unless an extension has been sought and granted
by the Commission prior to the expiry of the specified time. The Directions further stated that
requests for an extension of time for compliance must be made to the Commission in writing
and specify the grounds upon which an extension is sought and that any relevant documents
such as medical certificates should also be provided. The matter was listed for Hearing on 22
April 2020 in relation to whether a further period should be granted to the Applicant.
[12] The Applicant did not comply with the Directions and did not file her material by 7
April 2020 as requested. The Applicant also did not seek an extension of time to file her
statement as required by the Directions. On 8 April 2020, at my request, my Associate sent
the following correspondence to the Applicant, with a copy to the Respondent:
“Dear Ms Giles,
I refer to the above matter, and the attached Directions issued on 31 March 2020.
As per the Directions, you were required to file and serve a statement setting out the basis on which you
sought to make this application by 4.00pm on Tuesday 7 April 2020. I am not in receipt of a statement
from you, or any request for an extension of the time you had to file your statement. It is again noted
that you failed to attend the Conference on 31 March 2020, despite numerous attempts to contact you on
the mobile telephone number you had confirmed to the Commission.
The Deputy President has asked me to communicate that if you do not immediately advise your
intentions to file your material or to otherwise pursue this application, your application may be
dismissed pursuant to s. 587 of the Fair Work Act 2009. Further, as was communicated in the below
correspondence sent to you on 31 March 2020, the Respondent has also prefaced making an application
under s.399A of the Fair Work Act 2009 to have your unfair dismissal application dismissed. Your
application may also be dismissed pursuant to s.399A of the Fair Work Act 2009 if such an application
is received from the Respondent.”
[13] At 6:31 pm on 8 April 2020, the Applicant sent correspondence to Chambers (without
copying that correspondence to the Respondent) stating:
“Yes I want to persue [sic]. Will respond first thing tomorrow morning”
[14] At 10:11 pm on 8 April 2020, the Respondent sent correspondence to my Chambers
(also copied to the Applicant) and filed a Form F1 application seeking that the Applicant’s
unfair dismissal application be dismissed pursuant to s. 399A(1) of the Act.
[15] The Applicant did not contact my Chambers on the morning of 9 April 2020 or at any
time on that date. At 2:29 pm on 9 April 2020, I instructed my Associate to send
correspondence to the parties, noting that the Applicant had not provided an explanation for
why she failed to attend the Mention/Directions conference on 31 March 2020 or why she
failed to comply with the Directions and had not indicated when she would file her statement.
As set out in that email, the Applicant was given a further opportunity to file material and was
directed to file a statement by midday on 14 April 2020 addressing the following matters:
The Applicant’s failure to attend the Mention/Directions Conference on 31 March
2020;
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The Applicant’s failure to comply with the Directions issued on 31 March 2020; and
The basis upon which the Applicant asserts that she should be granted a further
period in which to make her application in accordance with the Directions issued on
31 March 2020 which were attached to the email.
[16] The Respondent was given until midday 21 April 2020 to file any material in response
or any material in support of its s.399A application. The parties were advised in that email
that hearing listed on 22 April 2020 would also deal with the s.399A application. The email
also put the Applicant on notice that if she failed to file her statement, or if she failed to attend
the telephone hearing, her application may be dismissed without further notice.
[17] At 2:49 pm on 9 April 2020, the Applicant telephoned Chambers, advising that she
had received a few emails however was confused about what she was required to do. The
Applicant sought during her telephone conversation with my Associate, to provide reasons for
her delay and her non-compliance. My Associate advised the Applicant that this method of
providing the required information was inappropriate and that she should comply with the
further Directions.
[18] On 14 April 2020, the Applicant sent three separate emails purporting to comply with
the further Directions issued on 9 April 2020. Those emails did not address all the matters
that set out in the further Directions and were not in the form of a statement. The Respondent
filed submissions in support of its application under s.399A of the Act and in support of why
the Applicant should not be granted a further period in which to make her application. At 4:07
pm on 21 April 2020, my Associate emailed the parties confirming that they would be
contacted at 12:00 pm on 22 April 2020 for the telephone hearing.
HEARING
[19] The hearing proceeded on 22 April 2020. At the hearing the Applicant was given an
opportunity to explain her failure to comply with the Directions and to contact the
Commission in advance of her non-compliance to seek an extension. The Applicant
maintained that she had explained the reasons for these matters in her emails to the
Commission and relied on the contents of those emails to support the grant of a further period
to make her application and to oppose the Respondent’s s. 399A application.
[20] The Respondent filed a submission and a witness statement in support of its s. 399A
application and in opposition to the Applicant being granted a further period in which to make
her unfair dismissal application. For reasons which will be apparent, it was not necessary to
hear from the Respondent at the hearing.
[21] Notwithstanding the Applicant’s failure to comply with Directions I have considered
the entirety of her communication with the Commission in deciding whether she should be
granted a further period in which to make her application. The communication, in the form of
emails, is as follows. On 10 March 2020 in response to correspondence from the Associate to
Vice President Catanzariti in relation to her application being filed outside the period required
by s. 394(3) the Applicant sent the following email:
“good afternoon
Thank you for your email.
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I am still applying for an extension due to the following circumstances.
I registered the unfair dismissal claim on the 23rd or 24th, originally within the allocated time frame
and have been advised the Commission will be able to see that registration for that date. I completed the
claim and submitted my form, however it timed out and I believed my form had been submitted. At the
end of the claim it stated I would receive an email in due time to confirm my claim and the steps to
follow etc. When I did not receive that in the next few days I called the commission and requested the
progress of my case. I was advised that the form did not submit online properly and to send it in via
email that day, which I did on the 28th of January.
The only reason I did submit my claim earlier than the 23rd was that I did not have the funds and could
not afford the fee as losing my job created financial hardship, however came across the waiver form on
the 23rd and submitted this along with the unfair dismissal claim.”
[22] The emails sent to my Chambers on 14 April 2020 were in the following terms:
Email received at 10:15 am:
“I am responding to the notice of listing I was unable to attend, I was unable to attend due to a work
webinar that was held at the last minute by my employees to update us on the latest policy for COVID
19. This webinar went for some time and was mandatory for all staff to attend. I realise this was an
inconvenience, however keeping my current employment is my main priority.
I have requested time off to attend the hearing on the 22nd and do not see anymore interruptions in the
foreseeable future.”
Email received at 11:48 am:
“I failed to attend the notice of listing due to new employment, due to the COVID 19 my employer held
a last minute meeting on how we are to move forward with the COVID 19 and delivering training to our
students in compliance with the government. As we are dealing with a global pandemic sustaining my
current employment must be the priority and in the interest of justice I believe an extension of time
should be granted.
I will not be submitting any new evidence at this stage and no witnesses to be called.”
Email received at 2:55 pm:
“Upon reflection of my last email I sincerely apologise for my delay and not attending the notice of
listing, I have not been in a very good place since my termination from Coal Train. However after some
thought I would like to say that this will never happen again. It has been an incredibly overwhelming
process for me, I do not have legal representation so I do find it difficult to comprehend all the legal
requirements requested. I also find it very conflicting that I was terminated on the 3rd and my
separation certificate states I was made redundant. I have sent evidence to support it was not a genuine
redundancy.
I genuinely was unable to attend the notice of listing due to current work conflictions. My company is
struggling through this global pandemic like so many others and by attending the notice of listing and
not attending a full staff meeting, I would be putting my own job at severe risk. I can not risk going into
deep financial hardship again after experiencing that following my termination from Coal Train.
Please allow me an extension of time so we may proceed with the claim”
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CONSIDERATION
The approach to determining whether a further period should be granted
[23] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application
under s. 394 must be made within 21 days after the dismissal took effect or within such
further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out
the circumstances in which the Commission may allow a further period for an unfair dismissal
application to be made as follows:
“(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.”
[24] The approach to deciding whether there are “exceptional circumstances” in a
particular case is that the term is given its ordinary meaning, and encompasses circumstances:
out of the ordinary course, unusual, special or uncommon, but not necessarily unique
unprecedented or rare; or
involving a single exceptional matter, a combination of exceptional factors or a
combination of ordinary factors that taken together are exceptional.2
[25] 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
[26] The assessment of whether “exceptional circumstances” exist requires consideration
of all of the relevant circumstances. No one factor, such as the reason for the delay need be
found to be exceptional in order to enliven the discretion to extend time. However an absence
of any explanation for any part of the delay will usually weigh against an extension while an
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acceptable explanation for all of the delay will usually weigh in favour of an extension. It is
necessary to take each factor into account by considering and giving appropriate weight to it.4
[27] The delay required to be considered is the period beyond the prescribed 21 day period
for lodging an application and does not include the period from the date of the dismissal to the
end of the 21 day period.5 It is not a pre-condition to the grant of an extension of time that an
applicant provide a credible explanation for the entire period of a delay and an extension may
be granted where an applicant has not provided any explanation for any part of the delay.6
[28] Even when exceptional circumstances are established, discretion as to whether time
should be extended remains, which should be exercised having regard to all the
circumstances, including whether an extension is fair and equitable.7 Events and
circumstances prior to the dismissal and in the period from the dismissal to the date the
prescribed 21 day period expired may also be relevant to explaining a delay or to considering
other matters in s. 394(3) to determine whether there are exceptional circumstances justifying
the grant of a further period in which to make an unfair dismissal application. As the majority
in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank observed:
“The delay required to be considered is the period beyond the prescribed 21 day period for lodging an
application. It does not include the period from the date of the dismissal to the end of the 21 day period.
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.”8
[29] I turn now to consider each of the matters in s.394(3) of the Act.
The reason for the delay – s. 394(3)(a)
[30] The period of the delay is four days. I do not accept the submission of the Respondent
that the incomplete application made on 28 January was not validly made by virtue of being
incomplete. That submission is contrary to Full Bench Authority in Arch v Insurance
Australia Group Services Pty Limited9.
[31] Despite repeated opportunities being given to the Applicant to establish the reason for
the delay in filing her application, she has put nothing before the Commission by way of
evidence or a coherent statement about the attempts she claims to have made to file her
application within time. According to the material on the file and the correspondence with the
applicant an incomplete application was filed with the Commission electronically at 8.00pm
on 28 January 2020.
[32] If the Applicant wished to assert that she made a bona fide attempt to lodge her
application within the required time but was prevented from doing so because of technical
issues, then it was incumbent upon her to place evidence before the Commission about the
steps she took or attempts made to lodge her application, when the steps were taken or the
attempts made and what technical difficulties were encountered. The Applicant had numerous
opportunities to provide a statement to the Commission in relation to these matters and has
not done so. The only evidence having any relevance to these assertions is the email sent to
the Chambers of Vice President Catanzariti on 10 March 2020. I am unable to be satisfied, on
the basis of the contents of that email, that the Applicant has established the technical
difficulties she asserts.
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[33] First, the Applicant has not given clear evidence about the date upon which she claims
to have attempted to lodge her application stating that it was “either the 23rd or 24th” –
presumably dates in January. The Applicant did not provide details of who advised her that
the Commission would be able to “see” when she made these attempts or when contact was
made with the Commission about her alleged technical difficulties. Further, if the attempt at
submitting the Form “timed out” the Applicant should reasonably have known this by virtue
of not receiving an electronic confirmation that her application had been successfully lodged.
As the Respondent points out in its submissions, there is information on the Commission’s
website informing persons lodging unfair dismissal applications that the system will time out
if there is no activity for twenty minutes.
[34] It is also the case that the following text appears on the webpage of the online form:
“How do I know if my application has been received? You will receive an automated email
confirming that your application has been successfully lodged.” The Applicant asserts that
when she did not receive this advice “in the next few days” she telephoned the Commission to
check on the progress of her application and was advised that it had not been submitted
properly on line and that she should send it in via email “that day”. The Applicant states that
she did this. The covering email sent with the application indicates that it was sent at 8.00 pm
on 28 January 2020 (or 9.00 pm given time differences between the location of the sender and
the recipient). Whether the email was sent at 8.00pm or 9.00pm, on 28 January 2020, that
time is inconsistent with the Applicant’s statement that she took this step after speaking to a
staff member of the Commission.
[35] As previously noted, the Applicant lodged an incomplete application on 28 January
2020 and after being contacted by staff of the Commission filed a further version on 3
February 2020. The incomplete application filed on 28 January 2020 at 8.00pm (or 9.00 pm)
was filed by email and was filled out electronically. The Applicant also answered “Yes” to the
question on the application asking whether the application was being filed within 21 days of
the dismissal taking effect. The incomplete application was not signed or dated and the
Applicant had not completed the part of the application to either make payment of the
application fee or apply for a waiver of the fee.
[36] A completed application was filed by the Applicant on 3 February 2019, in which the
Applicant included handwritten information. The completed application is signed and dated
28 January 2020 which further evidences that this was the day the application was originally
filed.
[37] The Respondent submitted that in Nulty v Blue Star Group Pty Ltd10 at [25] and [38] a
Full Bench of the Commission held that assertion of technical issues unsupported by
evidence, could not support a finding of exceptional circumstances. While the Full Bench in
that case quoted extracts of the Decision under appeal which included reference to lack of
evidence about technological difficulties, it did not make a definitive finding about this matter
either in the passages referred to in the submission for the Respondent or elsewhere in the Full
Bench Decision.
[38] Notwithstanding this I accept that an Applicant seeking to establish exceptional
circumstances on the basis of technical difficulties associated with lodging the application, is
required to provide evidence to establish the nature and the impact of those difficulties. At
very least, an Applicant assertion such difficulties should provide evidence about when
attempts were made and what those attempts consisted of including documentary evidence
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where it is available. For example, in Arch v Insurance Australia Group Services Pty Limited
there was evidence of technical issue associated with a maintenance closure of the
Commission’s portal at or around the time that the Applicant established that he was
attempting to lodge his application11. The Applicant provided sufficient evidence of the time
at which his attempts were made including copies of a partially completed application
sufficient to establish that he did attempt to lodge it a time when he reasonably believed that
the Commission’s portal was not functioning and that this was the only way to lodge his
application.
[39] In the present case there is insufficient evidence about the attempts made by the
Applicant to file her material and when she made those attempts. The incomplete application,
while being validly made, does not contain information to enable conclusion to be reached or
inference to be drawn as to when it was prepared, to support the Applicant’s assertions that
she attempted to lodge it on 23 or 24 January 2020. As a result, there is no credible
explanation for the delay in lodging the application. The lack of a credible explanation for the
delay in filing the application is a matter that weighs against the exercise of the discretion to
grant a further period for the application to be made.
Whether the person first became aware of the dismissal after it had taken effect – s.
394(3)(b)
[40] The Applicant became aware of the dismissal on the date that it took effect – 3 January
2020 – as evidenced by the statement to this effect in her application. There was no confusion
or lack of clarity which could have contributed to the delay and this is a factor that weighs
against the exercise of the discretion to grant a further period for the application to be made.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
[41] There is no evidence that the Applicant took any action to dispute her dismissal other
than filing an unfair dismissal application. However, this is not a case where any lack of
action on the part of the Applicant is combined with a lengthy delay. On balance this is a
neutral consideration.
Prejudice to the employer including prejudice caused by the delay – s. 394(3)(d)
[42] The Respondent asserts that it will suffer prejudice if a further period is granted on the
basis that:
“(a) due to redundancies and voluntary resignations since 3 January 2020, 8 people in the Applicant’s
team are no longer employed by Coal Train and the difficulty/impossibility of obtaining evidence from
those persons will cause Coal Train to suffer prejudice;
(b) the Respondent has incurred unnecessary legal expense and will continue to
incur legal expense;
(c) continuation of the proceedings will cause employee downtime;
(d) the Respondent has restructured its organisation on the basis that the Applicant did not contest her
dismissal and that her position is no longer required;
(e) the Applicant’s Application is so vague and lacking in particulars that it would be unfair to require
Coal Train to respond to those allegations out of time. None of the contentions in the Applicant’s
Application address the relevant criteria for considering whether a dismissal was harsh, unjust or
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unreasonable. The factors specified by the Applicant under the hearing “why was the dismissal unfair”
do not provide a basis for concluding that her dismissal was unfair within the meaning of section 385 of
the Fair Work Act 2009 (Cth). The basis upon which the Applicant intends to address the relevant
criteria is totally unclear to the Respondent. The Respondent will be prejudiced in attempting to respond
to these issues at the time of the hearing as the events occurred some time ago.”
[43] While I accept there will be some prejudice to the Respondent employer if a further
period is granted to the Applicant, the submissions made on the Respondent’s behalf overstate
this factor. The Respondent has incurred legal expense because it opted to be represented and
permission has not been granted at this point and may be refused if the matter proceeded to
hearing. Any lack of precision in the pleadings set out in the application would also be
addressed by the provision of submissions and statements of evidence if the matter proceeded
to hearing. The downtime caused by the participation of employees in an unfair dismissal
hearing is prejudice that would be suffered even if the application was lodged within time. In
any event, the Respondent would put on its material first given that it has raised a
jurisdictional objection on the grounds of genuine redundancy and could do so regardless of
any inadequacy in the pleadings of the Applicant as set out in her application.
[44] It is also not immediately apparent why the Respondent would need to call evidence
from other members of the Applicant’s team who were also made redundant to put evidence
before the Commission in relation to its this when presumably a decision maker in relation to
the redundancies would be available to give evidence. It is also the case that the delay is not
extensive. On balance this is a neutral consideration.
Merits of the application – s. 394(3)(e)
[45] In the matter of Kornicki v Telstra-Network Technology Group12 the Commission
considered the principles applicable to the exercise of the discretion to extend time under
s.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.”13
[46] The Applicant asserts that she was given no reason for the termination of her
employment other than the employment separation certificate she was provided with indicates
redundancy as the reason for dismissal. The Applicant also asserts that someone else has
been hired to do her job.
[47] The Respondent asserts that the dismissal was a case of genuine redundancy. This is
not apparent from the termination letter tendered by the Respondent with its material which
makes no mention of redundancy. It is apparent that there are disputed facts which could only
be resolved by evidence. In these circumstances I have considered the merits of the
application as a neutral factor in my determination as to whether the discretion to grant a
further period to make the application.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
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[48] There is no evidence that there are any other employees in a similar position to the
Applicant. This is a neutral factor. If this consideration requires fairness to be considered on a
broader scale, then a refusal to grant a further period in the circumstances of this case will not
be inconsistent with other cases where employees have been refused a further period when the
reasons for the delay have been similar or the same as those provided in the present case and
consistent with Full Bench authority in Nulty v Blue Star Group Pty Ltd.
CONCLUSION
[49] After weighing each of the matters I am required to consider, I am not satisfied that
when they are considered individually or collectively, there are exceptional circumstances
taking into account the matters in s. 394(3) of the Act such that the discretion to grant a
further period in which to make the application should be exercised in favour of the
Applicant. Accordingly, the application must be dismissed and an Order to that effect will
issue with this Decision.
[50] In those circumstances it is not necessary that I deal with the s. 399A application made
by the Respondent. However, I note that the Applicant did not prosecute her application with
diligence. Even allowing for the fact that she obtained alternative employment and was
otherwise occupied, her lack of response to numerous attempts to engage with her and give
her an opportunity to present her case has caused inconvenience to the Respondent and to the
Commission. I accept that the Applicant gave priority to her new employment and that she
may have been required to attend a training program at short notice. However, I note that the
Applicant was not proactive in explaining her non-compliance and any explanation was only
given in response to requests from the Commission. Further the explanations provided did
not properly engage with the questions posed to the Applicant.
[51] In all of the circumstances, even if I was satisfied that time should be extended it is
probable that I would have dismissed the application pursuant to s. 399A in any event.
DEPUTY PRESIDENT
Appearances:
Ms C Giles on her own behalf.
Ms E Pritchard of Harmers Workplace Lawyers on behalf of the Respondent.
Hearing details:
WORK COMMISSION THE SEAL OF THE
[2020] FWC 2274
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22 April.
2020.
By telephone.
Printed by authority of the Commonwealth Government Printer
PR718728
1 Email from Applicant, dated 10 March 2020.
2 Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA
1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
3 Nulty v Blue Star Group [2011] FWAFB 975.
4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] – [39].
5 Stogianniadis op. cit. at [22].
6 Stogianniadis op. cit. at [40].
7 Ibid at [15].
8 [2015] FWCFB 287 at [12].
9 [2020] FWCFB 601.
10 [2011] FWAFB 975.
11 Op. cit. at [39] – [41]
12 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
13 Ibid
