1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Martin
v
Kancee Pty Ltd T/A GT AIR
(U2019/14014)
DEPUTY PRESIDENT ASBURY BRISBANE, 15 MAY 2020
Application for an unfair dismissal remedy - Further period in which to make application
sought – Section 394(3) – Consideration of whether there are exceptional circumstances –
Commission not satisfied that there were exceptional circumstances taking into account
matters in s. 394(3) – Grant of further period refused
Overview
[1] Mr Daniel Martin (the Applicant) applies under s.394 of the Fair Work Act 2009 (the
Act) for an unfair dismissal remedy in respect of his dismissal by Kancee Pty Ltd t/a GT Air
(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 his dismissal 19 November 2019 and that
it took effect on that date.
[2] Section 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. 294(2) of the Act the Applicant was required to make his application by 10
December 2019. The Applicant lodged his application on 11 December 2019 – one day
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 consistent with the Small
Business Fair Dismissal Code. 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.
[4] When the matter did not resolve through conciliation before a Fair Work Commission
Conciliator, correspondence was sent to the Applicant from the Chambers of Vice President
Catanzariti informing the Applicant that his application had been lodged one day late and
requesting that he provide any additional information to that contained in his application in
relation to why a further period should be granted and setting out the matters in s. 394(3) that
the Applicant would be required to address in order to be granted a further period.
[2020] FWC 1737
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 1737
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[5] When no response was received from the Applicant further correspondence was sent
to him including another copy of the letter setting out the provisions in s. 394(3) of the Act
that he would be required to address in order to be granted a further period to make his
application. The Applicant responded advising that he had already sent through everything he
had in relation to the matter and seeking clarification about what was required of him. The
matter allocated to me to determine whether a further period should be granted.
[6] Given the lack of information contained in the Form F2 Application in relation to the
reasons for the delay in filing the Application and the lack of information from the Applicant
in response to correspondence from the Commission, I listed the matter for hearing and issued
Directions requiring the Applicant to file material addressing each of the matters in s. 394(3).
Those matters were set out in the Directions.
[7] In response to the Directions, the Applicant filed a material which did not address the
matters in s. 394(3) of the Act. A hearing was conducted and the Applicant was given an
opportunity to provide oral evidence about those matters.
The approach to considering whether a further period should be allowed under s. 394(3)
[8] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application
must be made within 21 days after the dismissal took effect or within such further period as
the Commission allows under s. 394(3). 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.”
[9] 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.1
[10] 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
[2020] FWC 1737
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viewed together, may reasonably be seen as producing a situation which is out of the ordinary
course, unusual, special or uncommon.2 I turn now to consider each of the matters in s.
394(3).
Evidence and submissions of the Applicant
[11] In his Form F2 Application for an unfair dismissal remedy, the Applicant indicated
that he was not making his application within 21 calendar days of his dismissal taking effect.
In response to question 1.5 on the Form which asks for an explanation of the reason for the
delay, the Applicant states:
“I filled out what I thought was unfair dismissal form online but found out I had filled in the incorrect
form.”
[12] On 13 March 2020 the Applicant provided a statutory declaration to the Commission
in response to the Directions issued for the hearing stating:
“In relation to the mistake being made about filling in the wrong forms on the 19th November 2019 you
can clearly see that our intentions were to start proceedings straight away for unfair dismissal as I
wasted no time with my intentions. All the forms that were filled out gave me no real indication that
this was the wrong procedure as it asked for all the information that I thought was needed moving
forward.
It was only when I along with my mother for support met with the legal aid solicitor at the Fair Work
Office in Brisbane on 11th December 2019 that we were asked for the Fair Work Case number as she
did not have it. I gave her a number that we had, for her than to inform me that we had filled in the
incorrect forms so we did this while we were there in the Fair Work office. Clearly this was not
intentional as mentioned that I had already shown my intentions of wanting to move forward with the
unfair dismissal claim straight after being unfairly dismissed from employment at GT Air.
The front office employee person at Fair Work looked into this matter further and had informed me that
they could see where I had gone wrong and accepted the appropriate forms even though this was 1 day
over the 21 days.
This Fair Work employee also seen our concerns with this incident of filling out the wrong forms and
said everything would be fine on Fair Works end.
In closing regardless of the incorrect forms being submitted or filled out there is still the case of
injustice being done here.
I thank you for your consideration in this matter.”
[13] At the hearing into whether the Applicant should be granted a further period in which
to make his application the Applicant did not provide any documentary evidence about the
steps he took to file an unfair dismissal application (or the form that he claims to have
believed was an unfair dismissal application) or the time at which the steps were taken. It was
unclear from the Applicant’s evidence what forms he actually lodged with the Commission or
when and how he lodged the forms.
[14] When I questioned the Applicant about these matters, it was apparent that the forms he
filled out were forms requesting assistance from the Workplace Advice Service. The
Commission’s webpage contains comprehensive information for parties who wish to seek
legal advice, including legal services which may be able to offer assistance. Following a link
on the Commission’s webpage entitled “Where to get legal advice” displays a page that
contains information on seeking legal advice through a service called the Workplace Advice
Service as well as how to seek advice through other organisations.
[15] The Workplace Advice Service is a free legal assistance program facilitated by the
Fair Work Commission providing advice to employees and some employers. The Service
[2020] FWC 1737
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currently offers advice about unfair dismissal, general protections and workplace bullying. It
is a Service offered by the Commission on the basis that the provision of legal advice to
parties who seek it, can reduce complexity and confusion, improve access to justice and
minimise costs. There are currently eligibility requirements a party must meet to qualify for
free legal advice through the Workplace Advice Service.
[16] Following a link about the Workplace Advice Service enables a person to check their
eligibility for assistance and to fill in the Workplace Advice Service request form online, by
clicking a button that states “Check eligibility and make a request.” Directly below this is the
following information:
“Please note:
Using this service is entirely separate from making a formal application to the Commission.
You only have 21 days from the date of dismissal to lodge a formal application for unfair dismissal
or general protections dismissal.
If you need help faster than that, or are not eligible, other legal help is available.”
[17] When a person making an inquiry follows the link to check eligibility and to lodge a
request for assistance with the Workplace Advice Service, the person is asked whether they
want to make a request for legal advice or to lodge an application with the Fair Work
Commission.
[18] Repeated below this question is the information that using the Service is entirely
separate from making a formal application to the Commission. There is also a warning that
there is currently a high demand for the Workplace Advice Service, and a reply to a request
for help could take five business days, and that it will be longer again before an appointment
can be made, if the person making the inquiry is accepted.
[19] If the person selects the option indicating that he or she wishes to lodge a formal
application to the Commission, the following information is clearly displayed;
“The Workplace Advice Service can only help with questions about dismissal, general protections and
workplace bullying.
To make a formal application for the Commission to deal with your issue, please visit the unfair
dismissal, general protections or workplace bullying section of our website.
There is a 21 day time limit for lodging unfair dismissal applications and general protections dismissal
applications. We count the 21 days from the date your dismissal took effect. It is very important that
you get your application in before the deadline. It is easier to add more information to your application
after you’ve lodged it than it is to lodge a late application.
If you are looking for legal advice about other issues please see Where to get legal advice, or contact
the Commission on 1300 799 675.”
[20] The above information also contains hyperlinks to the sections on the Commission’s
webpage in relation to unfair dismissal, general protections or workplace bullying. If the
person clicks the link indicating that he or she seeks advice, then the person is required to
complete an eligibility quiz. Once the person selects their state of residence and that their
enquiry relates to dismissal, the quiz commences with the following:
“What assistance do you need?
I need help before an application is lodged
[2020] FWC 1737
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I need help before a conciliation
I need help after a conciliation
[21] The person completing the quiz is also asked:
“Which of the following best describes your issue?
I have a concern about dismissal
I have a concern about bullying in the workplace
I have a concern about general protections”
[22] After completing the quiz, the person is asked whether or not an application has been
lodged with the Fair Work Commission.
[23] The Applicant provided no evidence to the Commission about what steps he took
complete the form he alleges he filed and when he took those steps. The Applicant’s evidence
is that when he attended a meeting with the Workplace Advice Service on 11 December 2019,
he discovered that he had completed the forms requesting assistance from the Workplace
Advice Service rather than an unfair dismissal application. The Applicant also contended that
he completed the forms on his mobile telephone which added to his difficulty in
understanding the nature of those forms.
Consideration as to whether a further period be granted for making the application
Reasons for the delay – s.394(3)(a)
[24] The reasons for the delay given by the Applicant are that he completed the wrong form
being a form seeking assistance from the Workplace Advice Service. The Applicant also
states that he did not discover this error until 11 December 2019 when he attended the
meeting he had requested with the Workplace Advice Service.
[25] There is insufficient evidence before me to establish that the Applicant reasonably
believed that the form he filed with the Fair Work Commission was an unfair dismissal
application. The form makes clear that it is not an unfair dismissal application and contains a
number of warnings for persons completing the form that they only have 21 days to make an
unfair dismissal application.
[26] This is not a case where the Applicant submitted an incomplete application within a
short time after the 21 day period expired or where the Applicant used the wrong form but
made a clear attempt to file an unfair dismissal application within the required time. Rather,
the only conclusion I can make on the evidence available to me, is that the Applicant filled in
a request for assistance that bore no resemblance to an unfair dismissal application and which
contained a specific disavowal to the effect that it is not such an application. I do not accept
the Applicant’s assertion that the forms he filled out gave no real indication that this was the
wrong procedure. To the contrary, the form the Applicant completed gave every indication
that it was not an unfair dismissal application and that he had a 21 day period on which to
make such an application.
[27] An incomplete application or an application made in the wrong form will not
necessarily be invalid and such an application made within time is capable of being accepted
without the need for the grant of a further period to rectify deficiencies in form or content.3
[2020] FWC 1737
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However, an Applicant seeking to establish exceptional circumstances on the basis of
technical difficulties with the Commission’s lodgement portal or that an incorrect form was
lodged within the required time, is in my view, required to provide evidence to establish
matters such as the nature of the technical difficulties or what was filed and when it was filed.
[28] For example, in Arch v Insurance Australia Group Services Pty Limited4 there was
evidence of technical issues 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
application5. The Applicant also provided sufficient evidence of the time at which his
attempts were made including copies of a partially completed application. That material was
sufficient for the Commission to make a finding that there were exceptional circumstances
caused by the technical issues and that a valid application was made, notwithstanding that it
was incomplete.
[29] If the Applicant in the present case submitted a document to the Commission to
contest his dismissal, then he should have a copy of that document to establish this fact. The
Applicant has not produced any material to evidence the document that he filed upon which I
could make a finding that there was an application made within time. Further, the Applicant
has not established that the fact that he erroneously believed that the form requesting
assistance from the Workplace Advice Service was an unfair dismissal application, is a
credible explanation for the late filing of his application.
[30] The form the Applicant completed is not confusing and he was not led into error by
any information on the Commission’s website or by the conduct of its staff or the staff of the
Workplace Advice Service. 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)
[31] The Applicant became aware of the dismissal on the date that it took effect – 19
November 2019 – as evidenced by the statement to this effect in his 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)
[32] There is no evidence that the Applicant took any action to dispute his 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)
[33] There is no evidence that the Respondent will suffer prejudice as a result of the delay
in filing the application other than the prejudice associated with having to defend the
application. This is the same prejudice as the Respondent would suffer if the application was
[2020] FWC 1737
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made within time. 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)
[34] In the matter of Kornicki v Telstra-Network Technology Group6 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.”7
[35] The Applicant asserts that he was dismissed after raising issues about safety. The
Respondent asserts that the Applicant was dismissed for a range of reasons involving
misconduct. The Respondent also asserts that it is a small business and the dismissal was
consistent with the Small Business Fair Dismissal Code.
[36] It is apparent that there are disputed facts which could only be resolved by evidence at
a hearing. 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)
[37] 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
[38] If the Applicant wished to assert that he lodged a valid application in the correct form
within the required time or that there were circumstances associated with his completion of an
incorrect form that were exceptional, then it was incumbent upon him to place evidence
before the Commission about the steps he took or attempts made to lodge his application,
when the steps were taken or the attempts made and what if any technical difficulties were
encountered resulting in him lodging the incorrect form. The Applicant had numerous
opportunities to provide a statement to the Commission in relation to these matters and has
not done so.
[39] The only evidence having any relevance to these assertions is a statutory declaration
filed by the Applicant on 13 March 2020 and the contents of his Form F2 Unfair dismissal
application. I am unable to be satisfied, on the basis of that material, that there are exceptional
circumstances justifying an exercise of the discretion to extend the time for the application to
be made.
[2020] FWC 1737
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[40] 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 applications should be exercised in favour of the
Applicant.
[41] Accordingly, the application in U2019/14014 is dismissed and an Order to that effect
will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr D Martin on his own behalf.
Ms K Hunter on behalf of the Respondent.
Hearing details:
31 March.
2020.
By telephone.
Printed by authority of the Commonwealth Government Printer
PR717971
1 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
2 Nulty v Blue Star Group [2011] FWAFB 975
3 Arch v Insurance Australia Group Services Pty Limited [2018] FWCFB 975 at [39] – [41].
4 Ibid.
5 Op. cit. at [39] – [41]
6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
7 Ibid
IR WORK COMMISSION THE SEAL OF THE
