1
Fair Work Act 2009
s.394—Unfair dismissal
Thomas Cosgrove
v
Clarity Interiors
(U2020/8365)
COMMISSIONER PLATT ADELAIDE, 30 JUNE 2020
Application for an unfair dismissal remedy – request for an extension of time – application
dismissed.
Introduction
[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair
dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days
after the dismissal took effect.1 However, the Fair Work Commission (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 Mr Cosgrove
a further period for his unfair dismissal application (Application) to be made against Clarity
Interiors (Clarity).
Background
[3] Mr Cosgrove has lodged an application pursuant to s.394 of the Act in relation to
the termination of his employment with Clarity which his form F2 Unfair Dismissal
Application advised took effect on 3 April 2020.
[4] The application was lodged on 17 June 2020.
[5] The application identified that it was made beyond 21 days from the date of dismissal
and provided the following explanation:
“I attended a site visit on 11th June 2020 for a Tender that I was preparing for the City
of Casey for a Job at Merinda Park Kindergarten - City of Casey is a Client of mine
that i introduced to Clarity Interiors and I was invited to submit a tender by City of
Casey directly
I noticed that Andrew Cain the director of Clarity was in attendance with a
subcontractor known to me, and during my attendance i observed Andrew Cain act in
a way that indicated that we has there to act as a Head Contractor.
[2020] FWC 3355 [Note: This decision has been quashed - refer to Full
Bench decision dated 14 October 2020 [[2020] FWCFB 5464]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5464.htm
[2020] FWC 3355
2
When i got back to my office i did a check on Estimate One Tendering Platform and
noticed that the company was in fact tendering 5 significant projects with a total value
of up to $4.5m and i also noticed that on the Clarity Interiors Page that my email
address is still listed as a primary contact for tenders which means they are deceitfully
using my name as a guise to trick sub contractors who wont work for Clarity unless i
am there due to my considerable reputation
I then received an unexpected phone call on 16th June 2020 at 3.30pm from one of the
Sub Contractors that i had introduced to Clarity Interiors indicating that a female asian
lady called him inquiring if the contractor would be submitting prices for the tenders -
clearly my role has been passed onto another person, and whist I was employed at
Clarity there was no female Asian working there
I then followed up with some further inquiries with other sub contractors and they all
indicated that they were also being requested to tender works for Clarity Interiors and
also i found out that Clarity Interiors had in fact tendered the two jobs that were sitting
on my desk to be tendered on the day they made me redundant whilst saying directly
to me that they wouldn't be tendering the jobs.
I simply was not aware until 11th June 2020 that Clarity Interiors were in fact still
carrying out the work I was both scheduled to undertake but had in fact started the
Baby Bunting construction project as per the scheduled start date as per the original
program despite informing me in writing on 3rd April that the Baby Bunting Project
was on hold indefinitely and it wasn't until yesterday 16th June 2020 that i became
aware that another person who wasn't previously employed at Clarity was in fact
carrying out some of my original duties which included Estimating, Project
Management, Contract Administration and Business Development
I attended the Building Site of the Baby Bunting Project today 17th June 202 to see
what progress had occurred and its obvious that this project was we l advanced and i
could have easily been redeployed on that job in many roles.
the fact is despite their letter stating there was a down turn of work the exact opposite
is in fact the true position - they are tendering more jobs now that at the time I was
employed and the reasons nominated in their letter of termination are in fact untrue
and they could have redeployed me in other areas as i had offered to do at a reduced
wage.
I believe they used the c they received the first installment of cash from the Australian
Government” (sic)
[6] On 24 June 2020, Clarity lodged a form F3 Employer Response which indicated that
the dismissal occurred on 3 April 2020 and raised a jurisdictional objection on the basis that
the application was lodged out of time, that it was a small business and Mr Cosgrove had
insufficient service to meet the Minimum Employment Period (MEP) of 12 months and the
dismissal was a genuine redundancy. This decision only deals with the extension of time
issue.
[7] On 19 June 2020, the Commission corresponded with Mr Cosgrove and Clarity.
Information about the extension of time issue and the factors that I am required to take into
[2020] FWC 3355
3
account in considering this matter, were provided to the parties. Mr Cosgrove was directed to
provide a statement concerning the extension of time and any documents to be relied upon by
22 June 2020.
Hearing
[8] A hearing was conducted by way of telephone conference on 25 June 2020. A sound
file record of the telephone conference was kept. Mr Cosgrove represented himself and Mr
Andrew Brooks (of counsel) represented Clarity. Permission was granted pursuant to
s.596(2)(a) of the Act. The hearing was conducted by way of Determinative Conference in
order mitigate any representative imbalance.
[9] Mr Cosgrove’s position is summarised as follows:
He commenced employment with Clarity on 1 July 2019.
At the time he was dismissed on 4 April 2020 he did not question the legitimacy of
his dismissal, however on 16 June 2020 he received information which led him to
believe that his dismissal was not a genuine redundancy. The Application was
lodged the following day.
No other action was taken to contest the dismissal.
He understood that there were 23 persons engaged by Clarity at the time of his
dismissal this included a number of contractors. Clarity had a related entity, but he
was not aware of how many persons where employed. Mr Cosgrove believed that
Clarity was not a small business as defined by s.23 of the Act.
Mr Cosgrove believed his redundancy was not a genuine redundancy within the
meaning of s.389 of the Act.
[10] Clarity’s position is summarised as follows:
The facts support its contention that Mr Cosgrove’s dismissal fell with the definition
of a genuine redundancy.
Mr Cosgrove’s explanation did not amount to exceptional circumstances.
Clarity was a small business and employed 7 persons at the time of the dismissal, a
copy of the Business Activity Statement for the period in which the dismissal
occurred was submitted together with a payroll activity summary (in respect of
which a confidentiality order was made pursuant to s.594 in respect of information
about employees other than Mr Cosgrove). The payroll activity summary identified
the names of the 7 employees who were paid in that period.
Clarity had a related entity (within the meaning of s.50AAA of the Corporations Act
2001 (Cth)) but it did not have any employees.
Applicable Law
[11] 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:
“(a) the reason for the delay; and
[2020] FWC 3355
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(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.”
[12] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.3
[13] I have considered the provisions of s.394(3) of the Act in the context of the Full
Bench decision in Nulty v Blue Star Group Pty Ltd4 which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional
circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of
FWA considered the meaning of the expression “exceptional circumstances” in
s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary
as “forming an exception or unusual instance; unusual; extraordinary.” We can
apprehend no reason for giving the word a meaning other than its ordinary
meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of
principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was
considered by Rares J in Ho v Professional Services Review Committee No 295, a
case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour
observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires
consideration of all the circumstances. In Griffiths v The Queen (1989) 167
CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision
which entitled either a parole board or a court to specify a shorter non-parole
period than that required under another section only if it determined that the
circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they
may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the
relevant circumstances in combination was a failure to consider matters which
were relevant to the exercise of the discretion under the section (167 CLR at
379). Deane J, (with whom Gaudron and McHugh JJ expressed their
concurrence on this point, albeit that they were dissenting) explained that the
power under consideration allowed departure from the norm only in the
[2020] FWC 3355
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exceptional or special case where the circumstances justified it (167 CLR at
383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J
referred with approval to what Lord Bingham of Cornhill CJ had said in R v
Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English
adjective, and not as a term of art. It describes a circumstance which is
such as to form an exception, which is out of the ordinary course, or
unusual, or special, or uncommon. To be exceptional a circumstance
need not be unique, or unprecedented, or very rare; but it cannot be one
that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and
moon appear in the sky everyday and there is nothing exceptional about seeing
them both simultaneously during day time. But an eclipse, whether lunar or
solar, is exceptional, even though it can be predicted, because it is outside the
usual course of events.
27. 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’ in s 106KA(2) 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. And, the
section is directed to the circumstances of the actual practitioner, not a
hypothetical being, when he or she initiates or renders the services.”
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning
and requires consideration of all the circumstances. To be exceptional, circumstances
must be out of the ordinary course, or unusual, or special, or uncommon but need not
be unique, or unprecedented, or very rare. Circumstances will not be exceptional if
they are regularly, or routinely, or normally encountered. Exceptional circumstances
can include a single exceptional matter, a combination of exceptional factors or a
combination of ordinary factors which, although individually of no particular
significance, when taken together are seen as exceptional. It is not correct to construe
“exceptional circumstances” as being only some unexpected occurrence, although
frequently it will be. Nor is it correct to construe the plural “circumstances” as if it
were only a singular occurrence, even though it can be a one off situation. The
ordinary and natural meaning of “exceptional circumstances” includes a combination
of factors which, when viewed together, may reasonably be seen as producing a
situation which is out of the ordinary course, unusual, special or uncommon.”
Consideration
[2020] FWC 3355
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[14] This unfair dismissal application by Mr Cosgrove was made 54 days outside of the
21 day time limit and therefore, can only be pursued if this time limit is extended.
Paragraph 394(3)(a) - reason for the delay
[15] 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 when assessing whether there is a credible reason for the delay, or any part of the
delay, beyond the 21 day period.5 In Diotti v Lenswood Cold Stores Co-op Society t/a
Lenswood Organic,6 the Full Bench explained the correct approach by reference to the
following example:
“[31] 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.”
[16] An acceptable explanation for the entirety of the delay is not required to make a
finding of exceptional circumstances. However, in considering and taking into account the
reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to
whether the applicant has provided an acceptable explanation for the entirety or any part
of the delay. The correct approach to be taken was explained by the Full Bench in
Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:7
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist
requires a consideration of all 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. This is so because even though no one factor may be exceptional, in
combination with other factors the circumstances may be such as to be regarded as
exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be
taken into account in assessing whether there are exceptional circumstances. The
individual matters might not, viewed in isolation, be particularly significant, so it is
necessary to consider the matters collectively and to ask whether collectively the
matters disclose exceptional circumstances. The absence of any explanation for any
part of the delay, will usually weigh against an applicant in such an assessment.
Similarly a credible explanation for the entirety of the delay, will usually weigh in the
applicant’s favour, though, as we mention later, it is a question of degree and insight.
However the ultimate conclusion as to the existence of exceptional circumstances will
turn on a consideration of all of the relevant matters and the assignment of appropriate
weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into
account in deciding whether there are exceptional circumstances. There is no statutory
basis for the adoption of a decision rule whereby if the applicant does not provide a
credible explanation for the entire period of the delay then the matter in s.366(2)(a)
[2020] FWC 3355
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tells against the finding of exceptional circumstances. Common sense would suggest
otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible
explanation for 29 of those days? It seems to us that such circumstances may weigh in
favour of a finding of exceptional circumstances. Of course, as mentioned earlier if
there was a credible explanation for the entirety of the delay that would weigh more
heavily in favour of such a finding. Conversely, if the applicant failed to provide a
credible explanation for any part of the delay that would tend to weigh against a
finding of exceptional circumstances.”
[17] I am satisfied that on 16 June 2020, Mr Cosgrove received information which
reasonably led him to believe that his redundancy was not genuine, he then lodged the
Application the following day.
[18] Mr Cosgrove has provided a credible reason for the entirety of the delay in filing his
Application, this factor weighs in favour of granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it
had taken effect
[19] Mr Cosgrove was aware of the dismissal on the date that it occurred.
[20] This is a neutral factor in this circumstance.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
[21] Action taken by the employee to contest the dismissal, other than lodging an unfair
dismissal application, may favour granting an extension of time.8
[22] There was no other action taken to contest the dismissal and this factor is a neutral
consideration.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the
delay)
[23] Prejudice to the employer will weigh against granting an extension of time.9 However,
the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of
time”.10
[24] A long delay gives rise “to a general presumption of prejudice”.11
[25] 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.12
[26] There is no submission that the granting of an extension of time represents prejudice to
Clarity.
Paragraph 394(3)(e) - merits of the application
[2020] FWC 3355
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[27] In terms of the merits of the application, there are two issues to consider, the first is
whether the dismissal was a genuine redundancy and if not whether the dismissal was unfair.
There is a contest on whether Clarity has met the three factors required by s.389 of the Act, in
order for the dismissal to be regarded as a ‘genuine redundancy’. There is insufficient
evidence before me to make a preliminary assessment on this topic. This portion of the merits
is thus a neutral consideration.
[28] The second issue is whether Mr Cosgrove’s service with Clarity is sufficient to meet
the MEP. Based on the information before me, I accept that Clarity had 7 employees as at the
date of the dismissal and is a small business within the meaning of s.23 of the Act. There was
an element of doubt and also knowledge gaps in respect of Mr Cosgrove’s view concerning
the number of persons employed by Clarity and its associated entity, and he was unable to
submit any firm evidence to counter the detailed information provided by Clarity.
[29] The applicable MEP is 12 months and there is no dispute that Mr Cosgrove’s service
is less than this. As a result of s.382 of the Act, Mr Cosgrove is not protected from unfair
dismissal and the Application (even if an extension of time was granted) is doomed to fail.
[30] I have regarded the merits as a factor which weighs against the extension of time issue.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar
position
[31] It was not submitted that the issue of fairness as between the Applicant and other
persons in a similar position is a relevant consideration in this matter. Because it is not a
relevant factor it is a neutral consideration in determining whether to grant an extension of
time.
Conclusion
[32] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the
Act, I am not persuaded that there are exceptional circumstances warranting the granting of an
extension of time and, accordingly, I decline to exercise my discretion to so order. In reaching
this conclusion, I am particularly influenced by the merits in that Mr Cosgrove is not
protected from unfair dismissal pursuant to s.382 of the Act by virtue of his service not
meeting the MEP.
[33] 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.
[34] An Order13 reflecting this decision will be issued.
[2020] FWC 3355
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COMMISSIONER
Appearances (by telephone):
Mr T Cosgrove on his own behalf.
Mr A Brooks (of counsel) on behalf of the Respondent.
Hearing (Conference) details:
2020.
Adelaide:
June 25.
Printed by authority of the Commonwealth Government Printer
PR720513
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
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
4 [2011] FWAFB 975
5 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]
6 [2016] FWCFB 349
7 [2018] FWCFB 3288 at [35]-[45]
8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
9 Ibid
10 Ibid
11 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
12 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February
2003) PR927201 at [16]
13 PR720514
THE FAIR SEAL OF THE THE KCOMMISSION
