1
Fair Work Act 2009
s.394—Unfair dismissal
Virginie Menelet
v
Enterprise & Training Company Limited T/A ETC
(U2022/11166)
DEPUTY PRESIDENT BOYCE SYDNEY, 1 FEBRUARY 2023
Application for an unfair dismissal remedy – applicant dismissed for reasons of poor
performance, poor punctuality, and substandard conduct – application filed 25 days out of time
– applicant filed no evidence to support her request for an extension of time – reasons for delay
unsatisfactory – no exceptional circumstances – application dismissed
Introduction
[1] On 22 November 2022, Ms Virginie Menelet (Applicant) filed an unfair dismissal
application (Application) with the Fair Work Commission (Commission).1 The Respondent to
the Application is Enterprise & Training Company Limited T/A ETC (Respondent).
[2] The Applicant was dismissed from her employment with the Respondent for (in
summary) reasons of poor performance, poor punctuality, and substandard conduct, following
a documented performance improvement plan (commenced on 1 August 2022), and a prior
written warning (issued on 21 September 2022).
[3] There is no dispute between the parties that the Applicant was dismissed within the
meaning of s.386 of the Fair Work Act 2009 (Act). Nor is there any dispute between the parties
that the Applicant’s dismissal took effect on 7 October 2022, and that she was notified of her
dismissal in writing on that date.
[4] In accordance with s.394(2)(a) of the Act, the Applicant should have filed her
Application by 28 October 2022 to be within the 21-day time period. It follows that the
Applicant has filed her Application 25 days late, or 46 days after her dismissal took effect.
[5] An unfair dismissal application must be made within 21-days after a dismissal, or in
such further time as the Commission may allow. The 21-day period prescribed in s.394(2)(a)
of the Act does not include the day on which the dismissal occurred. Given that the Application
1 The Applicant filed an Amended Form F2 on 1 December 2022. It is not clear what amendments of substance
were made between the Form F2 filed on 22 November 2022, and the Amended Form F2 filed on 1 December
2022. In preparing these reasons, I have had regard to both of the Form F2s filed by the Applicant. Transcript,
PN35 to PN36.
[2023] FWC 226
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 226
2
in this matter has been filed 25 days outside of the statutory 21-day time period, it is necessary
that I determine whether to extend the time for the filing of the Application under s.394(2)(b)
and (3) of the Act.
[6] Statutory time limits are set down in legislation for good reason, and the starting point
is they should be complied with.
[7] At the hearing, the Applicant appeared for herself (assisted by Mr Adam Gillespie), and
Mr Abraham Ash, Solicitor/Director, Australian Business Lawyers & Advisors, appeared with
permission for the Respondent.2
Legislation
[8] Granting an extension of time requires me to be “satisfied” that there are “exceptional
circumstances”. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty),
in relation to the term “exceptional circumstances”, stated:
“[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.
[14] Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an
exceptional circumstance…”3
[15] A finding that there are “exceptional circumstances”, taking into account the
matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to
extend time is enlivened. That is, even when “exceptional circumstances” are
established, there remains a discretion to grant or refuse an extension of time. That
discretion should be exercised having regard to all the circumstances including, in
particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a
consideration of whether, given the exceptional circumstances found, it is fair and
equitable that time should be extended.”
(emphasis added)
2 For the Decision (on transcript) granting Respondent permission to be legally represented, which was not opposed
by the Applicant, see Transcript, PN3 to PN7.
3 [2011] FWAFB 975.
[2023] FWC 226
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[9] The matters that I need to take into account in reaching a state of satisfaction as to the
existence of exceptional circumstances are outlined in s.394(3) of the Act, which reads:
“394 Application for unfair dismissal remedy
…
(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[10] Each of the individual matters under s.394(3) of the Act need to be considered
separately, and in combination. The Applicant bears the onus of establishing the existence of
exceptional circumstances.4
[11] In Mohammed Ayub v NSW Trains5, a Full Bench of this Commission described
“exceptional circumstances” (in the context of an out of time application) as being a “very high
bar” and “strictly limited”.
Reason for delay6
[12] On the issue of reason/s for delay, I adopt the principles set out by Deputy President
Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group7 (Bianco
Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible
or reasonable’ explanation for the delay. The reasonableness of an applicant’s
explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry
into whether exceptional circumstances exist, and then secondarily in deciding whether
the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered,
it is not essential that an applicant provide a credible or reasonable explanation for the
delay. That said, if an applicant does not have a credible explanation the Commission is
4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901.
5 [2016] FWCFB 5500.
6 Section 394(3)(a) of the Act.
7 [2021] FWC 3903.
[2023] FWC 226
4
generally less likely to find that exceptional circumstances exist (at least exceptional
circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count
for nought if the Commission is not satisfied that exceptional circumstances exist.
Indeed, many applicants with good explanations for delay do not receive an extension
of time because they cannot firstly establish that there are exceptional circumstances.”
[13] Reasons for the delay are not in and of themselves required to be exceptional. They are
just one of the factors that must be weighed in assessing whether, overall, there are exceptional
circumstances.8 An Applicant need not provide reasons for the entire period of a delay.
Depending upon all of the circumstances, an extension of time may be granted where the
Applicant has not provided any reason for any part of the delay.9
[14] Whilst the Applicant did not file any evidence or written submissions, the Applicant’s
reasons for delay are set out in her Form F2,10 and in oral submissions made at the Hearing on
24 January 2023.
[15] In her Form F2 (at Item 1.6), the Applicant states:
“Following the dismissal, I sought advice from Legal aid NSW and had their conclusion
a day prior to the deadline. The advice to lodge a unfair dismissal was “ they will argue
therefore it might be difficult to win”. I was sent a mail for this. I then, tried to contact
them to have further explanation but, the procedure (I called and they called me back
3/4 hour later, 3 times in 5 minutes, which I was unable to answer.). I then, proceeded
to lodge my application with a lot of questions and stressed. I called Fair work
commission on the 27/10/22 and talked to an officer (Russell) and he mentioned the
application of general protection. Although, I had no advice besides the fair work
commission suggestion on the call, I thought if it is general protection I should be
covered not really understanding the process and the differences between the two I have
lodged a form f8 on the 27th of October. As I am very stressed about all this, I called
back Legal aid that, proceeded to send me a form for a grant. When I called them back
on the I was then, given an appointment with a solicitor from head office on the 21st
November 2022. The latter considered that my case is indeed an unfair dismissal case
and I should lodge an unfair dismissal form not a general protection.”
[16] In her brief oral submissions at the hearing, the Applicant stated:
“I have got like no idea what you’re talking now. I’ve got nothing else to say any more,
you know, because we are speaking on papers. I call Legal Aid. They’re the one who
told me (indistinct) Fair Work Commission and now I’m the one going to be told like -
no, I don’t understand if I want to add more. All the paper I gave.”11
[17] In summary, I understand the Applicant’s reasons for delay are:
8 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39].
9 Ibid, at [40].
10 Amended Form F2, 1 December 2022, Item 1.6.
11 Transcript, PN180. See also at PN188 to PN189.
[2023] FWC 226
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a) the Applicant sought legal advice from Legal Aid NSW following her dismissal but
was unclear as to how she should proceed if she wished to commence proceedings
before the Commission having received ‘… their conclusion a day prior to the
deadline’;
b) the advice that the Applicant received from Legal Aid NSW (a day prior to the 21-
day deadline) was to file an unfair dismissal application;
c) despite the advice of Legal Aid NSW, the Applicant did not file an unfair dismissal
application, but instead (after speaking to the FWC Helpline) filed a general
protections involving dismissal application on 27 October 2022 (GP
Application)12;
d) the Applicant received further advice from Legal Aid NSW on 21 November 2022.
She subsequently discontinued her GP Application and filed the extant (unfair
dismissal) Application on 22 November 2022; and
e) the whole process was stressful and confusing for the Applicant, and there were
delays in making contact and/or obtaining advice from Legal Aid NSW.
[18] In addition to the Respondent’s written submissions,13 Mr Ash made the following oral
closing submissions (on behalf of the Respondent) at the hearing:
“Very briefly in light of what’s come out. It all goes to the reason for the delay.
One, Ms Menelet has told the Fair Work Commission that she can’t recall ever she told
Legal Aid at the end whether it was urgent or not. She can’t give evidence as to what
they assumed, so we say that reason - that’s another reason - for the reason of being a
reason, if that makes sense.
Secondly, there are things that Ms Menelet has told the Fair Work Commission, like
approaching Safe Work Australia and a non-profit organisation, two organisations
which are not anywhere in the application which, regarding the evidence the applicant
gives in section 1.6, should be taken with some caution.
Thirdly, she was told it was difficult to win, but she … nevertheless proceeded to lodge
the application despite being told it was difficult to win, and she has conceded that she
did file it herself.
Regarding not having legal advice, the Commission, with respect, will be aware that not
having legal advice or legal representation is not an excuse in this jurisdiction, and that’s
set out in the Cook decision, which I have summarised or taken sections from. That’s
there in that paragraph, unless you can see anything else I need to say, so I am not
wasting your time.
12 Matter C2022/7188.
13 Respondent’s Submissions, undated (16 paragraphs).
[2023] FWC 226
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Issues about confusion, she said - I withdraw that. Ms Menelet told the Fair Work
Commission she was confused, not experienced. We say that’s just not an answer in this
jurisdiction under the case law and, therefore, all these factors demonstrate why the
reason for the delay is not extraordinary or fits the test that the Fair Work Commission
must determine.
Those are the respondent’s submissions.”14
[19] In Bianco Mamo, Deputy President Easton outlined issues associated with illness and/or
associated incapacity going to asserted reasons for delay in the filing of an application, as
follows:
“[19] Sometimes an applicant’s medical condition can be so significant that it effects
their mental capacity to prepare and file an application. In some cases the Commission
has found there were exceptional circumstances connected to an applicant’s mental
illness and in other cases the Commission has not found exceptional circumstances.
[20] In Roberts v Westech IT Solutions Pty Ltd Senior Deputy President O’Callaghan
allowed an applicant further time to lodge his application after being satisfied that the
primary reason for the delay related to the applicant’s depression. The applicant
provided advice from his doctor that included details of the applicant’s clinical
depression over a number of years, details of his use of prescription medication and
details of his history of panic attacks after stressful events. In that matter the applicant
also said he had been “given the run around by the phone system which took some time
to navigate around”, the effect of which appears to have been made worse by the
applicant’s mental health.
[21] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar
conditions are not exceptional circumstances in and of themselves. The Full Bench
reasoned that the loss of employment is a serious event in a person’s life, but that such
responses and consequences are not unusual.
[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the
Full Bench accepted a finding at first instance that the applicant had failed to positively
demonstrate that his depressive illness had an impact on his mental capacity so as to
prevent him from lodging the application within 21 days. In that matter the applicant led
evidence from his treating doctor however “[the treating doctor] did not clinically
diagnose the applicant as being unable to file his unfair dismissal application. Rather,
she simply repeated what the applicant told her about his self-assessment of his alleged
psychological incapacity to lodge an unfair dismissal application during the relevant 21-
day period.” The Full Bench affirmed the finding at first instance that the medical
evidence “did not positively demonstrate that the Appellant’s depressive illness had an
impact on his mental capacity so as to prevent him from lodging the application within
the 21-day time frame” and also the finding at first instance that no exceptional
circumstances were established. The Full Bench in Underwood cited with approval the
decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are
14 Transcript, PN182 to PN187.
[2023] FWC 226
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quite different and the circumstances of each case must be considered in their own
unique context.”
[23] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s
evidence from her treating psychologist concerning her “major depressive disorder,
generalised anxiety disorder and post-traumatic stress disorder” primarily by reference
to the psychologist’s assessment of the applicant’s capacity to act. The Full Bench
endorsed the finding at first instance that on the evidence “the appellant’s mental state
did not prevent her capacity to engage in day-to-day activities in the period shortly after
her release from prison, and certainly does not explain the [relevant] period of delay.”
[24] It is not a requirement per se to provide medical evidence of exceptional
circumstances arising from mental illness. However, the practical reality is that without
proper and specific medical evidence it is very difficult for the Commission to make
informed findings about an applicant’s capacity to complete and file their application
within the statutory time limit.
[25] In summary the following principles apply:
(i) stress, shock, confusion and similar conditions are not exceptional
circumstances in and of themselves (per Shaw);
(ii) a depressive illness might point towards exceptional circumstance if the
illness had a material impact upon the applicant’s capacity to lodge the
application within the statutory time limit (per Roberts and Underwood);
(iii) the evidence should positively demonstrate that the applicant’s
depressive illness had an impact on their mental capacity so as to prevent
the lodging of the application within the 21-day time frame (per
Underwood and Merhi); and
(iv) an applicant’s self-assessment of their alleged psychological incapacity
is unlikely to be sufficient (per Underwood).”15
(footnotes omitted)
[20] I concur with and adopt the foregoing principles.16
[21] Exceptional circumstances may be found to exist where an applicant has a medical or
other incapacity established by probative medical evidence that prevents an applicant from
filing an application within the 21-day time period and for the relevant period of the delay. 17
No such evidence has been provided by the Applicant in this case.
[22] Whilst the Applicant may well have been stressed and confused as a result of her
dismissal, and/or in terms of having to determine what type of application she needed to file to
dispute her dismissal with the Commission, stress, shock, confusion and similar conditions are
15 [2021] FWC 3903, at ]19]-[25].
16 See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWA 4035; Construction,
Forestry, Mining and Energy Union v Crossy’s Crane Hire Pty Ltd (t/as Crossy’s Crane Hire) [2013] FWC
8866; Byrnes v Department of Broadband, Communications and Digital Economy [2012] FWA 7744.
17 Traie Hansen v Supported Options In Lifestyle And Access Services Ltd T/A Solas [2016] FWC 5907, at [45].
[2023] FWC 226
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not in and of themselves exceptional in that they are ordinarily encountered by many employees
post their dismissal. The Applicant’s stress and confusion in this case in no way explains or
justifies her delay of 25 days in filing her Application.
[23] The FWC’s Helpline does not provide legal advice. This is clearly stated on the FWC
website, which reads: “As an Independent Tribunal, we cannot give you legal advice”. It is also
made clear when one telephones the FWC Helpline on 1300 799 675, where, before a call is
answered by a staff member, an automated message states (words to the effect): “Staff cannot
give you advice or an opinion. They can only provide general information as found on the
FWC’s website. If you are after legal advice, ask about your eligibility for the free legal advice
service”.
[24] There is no evidence before me as to the full content of the discussion that occurred
between the Applicant and the FWC Helpline staff member, other than the Applicant’s version
of that call. I do not consider that I am in a position to make a finding of fact as to what
information the Applicant was provided during her telephone calls with the Commission.
Notwithstanding this, such a finding would in any event be irrelevant. This is especially so in
circumstances where both the FWC website and the FWC Helpline both state that the FWC
does not give advice or opinions, let alone legal advice or opinions.
[25] The Applicant’s explanation as to why she discontinued her GP Application is that it
would involve a more complicated process than an unfair dismissal. However, in my view, this
does not sufficiently explain why the GP Application, having been lodged within the 21-day
statutory time limit, was unable to proceed. An employee swapping out one application for
another is not an exceptional circumstance. This is especially so in this case, where the
Applicant’s own evidence is that Legal Aid NSW advised her (within 21-days of her dismissal)
to make an unfair dismissal application.
[26] Finally, the Applicant does not suggest that she was unaware of the statutory 21-day
time limit. However, as was stated in the case of Nulty, even if she was so unaware, ignorance
of the statutory 21-day time limit is not an exceptional circumstance.
[27] On the evidence before me, and noting the Applicant’s failure to file any evidence in
support of her reasons for delay, I find that that the Applicant’s reasons (concerning the lengthy
25-day delay in filing her Application), are unsatisfactory. The reasons for delay relied upon by
the Applicant do not, or do not sufficiently, explain her delay. I conclude that the Applicant’s
reasons for delay are such that they weigh against any finding as to the existence of exceptional
circumstances in this case.
Whether the Applicant become aware of the dismissal after it had taken effect18
[28] The Applicant was aware of her dismissal on the day that it took effect. I consider this
criterion to be a neutral consideration that weighs neither for nor against any finding as to the
existence of exceptional circumstances in this case.
Action taken by the Applicant to dispute the dismissal19
18 Section 394(3)(b) of the Act.
19 Section 394(3)(c) of the Act.
[2023] FWC 226
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[29] The Applicant originally filed the GP Application (within the 21-day time limit), but
later withdrew it, and filed her Application (for unfair dismissal) on 22 November 2022 (25
days outside of the 21-day time limit). There was no issue of jurisdiction that prevented the
Applicant from proceeding or otherwise continuing to progress her GP Application. Rather, it
was the Applicant’s own choice to discontinue her GP Application and instead file (out of time)
her Application (for unfair dismissal). I consider the actions taken by the Applicant to dispute
her dismissal, prior to commencing these proceedings, to be a neutral consideration, that weighs
neither for nor against any finding as to the existence of exceptional circumstances.
Prejudice20
[30] The next criterion to be considered is any prejudice to the Respondent occasioned by
the 25-day delay. I am not aware of any such prejudice. Whilst the absence of prejudice is not
uncommon, such absence is not a factor that automatically weighs in favour of a finding as to
the existence of exceptional circumstances.21 In this case, I treat this criterion as a neutral
consideration, that weighs neither for nor against any finding as to the existence of exceptional
circumstances.
Merits22
[31] The Applicant was employed by the Respondent for less than 12 months. She was
dismissed from her employment with the Respondent for the following reasons:
a) unsatisfactory work performance;
b) poor work quality;
c) poor attendance and punctuality;
d) failure to advise when taking leave and/or failure to follow policies and procedures
regarding the taking of leave;
e) failure to comply with policies and procedures;
f) failure to comply with work, health and safety standards and requirements;
g) engaging in behaviours not aligning with the Respondent’s core values; and
h) bringing the Respondent’s business into disrepute.23
[32] The particulars of the foregoing reasons for dismissal were articulated by the
Respondent in its Form F3 Employer Response, and include:
a) failure by the Applicant to attend a class she was teaching (18 May 2022);
b) multiple staff complaints about the Applicant’s behaviour (23 and 26 May 2022, 2
and 16 June 2022 (verbal warning issued to the Applicant on 2 June 2022));
c) student complaints, including students requesting that the Applicant not be their
teacher (26 May 2022, 2 and 25 July 2022, 2 September 2022);
d) customer complaints (25 July 2022);
20 Section 394(3)(d) of the Act.
21 Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014]
FWCFB 2149, at [38]).
22 Section 394(3)(e) of the Act.
23 See Termination Letter dated 7 October 2022.
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e) arriving late to teach classes on multiple occasions;
f) failure by the Applicant to complete requisite documentation (28 June 2022, 5
August 2022);
g) failure by the Applicant to provide working with children and RTO compliance
documentation; and
h) failure of the Applicant to accept meeting invitations to attend meetings.
[33] The Applicant’s dismissal follows a formal disciplinary written warning letter issued to
her on 21 September 2022 for reasons that included:
a) deflecting situations to something or someone else;
b) missing opportunities;
c) communicating with emotive verbal responses;
d) failure to listen to others when they are speaking;
e) inability to reflect on discussions that do not go well and develop strategies to avoid
their recurrence; and
f) inability to take feedback and use such feedback to make improvements.24
[34] The foregoing warning was issued to the Applicant after she had been placed upon a
documented performance improvement plan on 1 August 2022,25 but had failed to make
relevant or necessary improvements.26
[35] The Applicant does not accept that she engaged in any performance or conduct issues
during her employment with the Respondent. However, her denials are of limited substance,
and are wholly unsupported by evidence.27
[36] The principles stated Kyvelos v Champion Socks Pty Ltd28 (Kyvelos), albeit in relation
to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time
… the Commission may consider whether, on the basis of the material relied on by the
parties, the applicant has a sufficient case on the merits although the discretion should
be exercised having primary regard to the circumstances which led to the late
lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It
should be emphasised that in considering the merits the Commission is not in a position
to make findings of fact on contested issues, unless evidence is called on those issues.
Evidence is rarely called on the merits and there are sound reasons why the Commission
should not embark on a detailed consideration of the substantive case in an application
… In particular, it is undesirable that parties be exposed to the requirement to present
their evidentiary cases twice. There are other matters, however, which might affect the
exercise of the Commission’s discretion directly, in particular those matters which led
to the late lodgement. If the applicant does not call evidence on contested issues relevant
24 See “Formal Disciplinary Warning Letter” dated 21 September 2022.
25 See “Performance Improvement Plan” 1 August to 9 September 2022 (dated 1 August 2022, review date 9
September 2022), and “Performance Improvement Plan – Extension” (dated 21 September 2022, review date
7 October 2022).
26 Ibid.
27 See Item 3.2 of Form F2.
28 (1995) 67 IR 298.
[2023] FWC 226
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to those matters the Commission may nevertheless make findings based on the opposing
contentions of the parties or conclude that on a particular issue the applicant has not
made out its case …”.29
[37] In Kornicki v Telstra-Network Technology Group,30 the Full Bench of the Australian
Industrial Relations Commission considered the principles applicable to an extension of time
under the former s 170CE(8) of the (now repealed) Workplace Relations Act 1996. In that case,
the Full Bench said, in respect to the merits of an application:
“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.”31
[38] The merits of the Applicant’s case, by reference to her denials, and the Respondent’s
documented findings of poor performance and misconduct, were not tested before me (i.e. it is
not the role of the Commission to “embark [upon] a detailed consideration of an Applicant’s
substantive case” for the purpose of determining whether or not to grant an extension of time
to an applicant to lodge their application).32
[39] All in all, I consider that the merits of the Application in these proceedings are a neutral
consideration. I weigh the merits neither for, nor against, any finding as to the existence of
exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position33
[40] I am required to consider fairness as between the Applicant and other persons in a
similar position. This requires me to take into account matters where there have been the same,
or similar, characteristics and/or circumstances.34 Neither party made any relevant submissions
as to this criterion. Accordingly, I consider that this criterion to be a neutral consideration, that
weighs neither for nor against any finding as to the existence of exceptional circumstances.
Conclusion
[41] Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:
(a) one of the criteria, considered individually, points towards there being no
exceptional circumstances; and
29 Ibid, at 299 to 300.
30 Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson
SDP, Gay C).
31 Ibid. See also Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [36].
32 Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance
Aboriginal Corporation [2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd [2021] FWC
5962, at [33].
33 Section 394(3)(f) of the Act.
34 Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152,
[37].
[2023] FWC 226
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(b) considering the requisite criteria on a collective basis, there is no basis for me to
be satisfied that exceptional circumstances exist (i.e. one criteria weighs against any
finding as to the existence of exceptional circumstances, and the remaining criteria are
neutral).35
[42] On the basis of my reasons set out in this Decision, and having regard to the evidence
and the submissions of the parties, I am not satisfied as to the existence of exceptional
circumstances in this case. As a matter of law, I am therefore not in a position to exercise any
discretion to grant the Applicant an extension of time to file her Application.36 I dismiss the
Application filed by the Applicant in these proceedings. An Order to this effect will be
published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant appeared for herself, assisted by Mr Adam Gillespie.
Mr Abraham Ash, Solicitor/Director, Australian Business Lawyers & Advisors, appeared with
permission for the Respondent.
Printed by authority of the Commonwealth Government Printer
PR749970
35 See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.
36 Noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd [2011] FWAFB
975, at [13].
OF THE FAIR WORK NOISSINT
