1
Fair Work Act 2009
s.394—Unfair dismissal
Gerardine Gaju Kanamaharage
v
Flash Harry Hospitality
(U2022/11952)
DEPUTY PRESIDENT LAKE BRISBANE, 29 MARCH 2023
Application for an unfair dismissal remedy – application made outside of statutory timeframe
– application for extension of time dismissed.
[1] Mrs Gerardine Kanamaharage (the Applicant) lodged an application with the Fair Work
Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair
Work Act 2009 (the Act) in relation to the termination of her employment with Flash Harry
Hospitality Pty Ltd (the Respondent).
[2] On the Form F2 – Unfair Dismissal Application, the Applicant states she commenced
employment with the Respondent on 14 February 2022 and stated that she was notified of her
dismissal on 7 November 2022. The Applicant states she was dismissed because she took sick
leave for 3 days, and when she returned to work on 7 November 2022 she was asked to go
home. The Applicant states she never heard from the Respondent after this date.
[3] The Applicant lodged her application on 18 December 2022. The application was lodged
20 days outside the statutory time limit prescribed by s.394(2) of the Act.
[4] The question before me is therefore whether an extension of time pursuant to s.394(3)
of the Act should be granted. The Respondent opposes the granting of an extension of time.
Directions were issued and material filed by each party regarding the question of whether the
Applicant should be granted the extension before a hearing was held before me on 29 March
2023.
Should a further period be granted?
[5] Section 394(3) of the Act sets out the circumstances in which the Commission may
allow a further period for a general protections application involving dismissal be made:
“(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
[2023] FWC 753
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 753
2
(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 like position.”
[6] The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.1 In
Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission
in Tamu v Australia for UNHCR),2 the Full Bench of Fair Work Australia stated that:
“[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.”
[7] Although Nulty concerned the expression ‘exceptional circumstances’ in the context of
s.365 of the Act, its reasoning applies to s.394(3).
[8] For the Applicant’s unfair dismissal application to proceed, it is necessary to obtain an
extension of time under s.394(3) of the Act. I must therefore be satisfied that there are
“exceptional circumstances”, taking into account each of the matters in s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
[9] The Act does not specify what reasons for delay might suggest allowing for a further
period of time, however decisions of the Commission have referred to an acceptable3 or a
reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full
Bench noted:
“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 reliant matters and
the assignment of appropriate weight to each.” 5
[2023] FWC 753
3
[10] It is important to have regard to any circumstances from the date the dismissal took
effect when assessing whether the explanation proffered for the delay is an acceptable or
credible explanation.6
[11] The Applicant’s main reason she did not lodge the application on time was that she did
not know about the Fair Work Commission process. The Applicant contacted the Fair Work
Ombudsman regarding an underpayment claim on 21 November 2022.
[12] In an email between the Fair Work Ombudsman assessor and the Applicant on 24
November 2022, the Applicant was notified about the Fair Work Commission process. It states
the following:
Dear Gerardine Kanamaharage,
Thank you for giving me your assessment statement over the phone on 21/11/2022. Your
statement is attached to this email.
Here is the link to the Fair Work Commission website for you to contact and discuss
your dismissal and treatment at work: Fair Work Commission | Australia's national
workplace relations tribunal (fwc.gov.au)
[13] During her conversation with the Fair Work Ombudsman, the Applicant was made
aware of the Fair Work Commission and its dismissal process. I am not satisfied that she was
unaware of the process was a sufficient reason for delay.
[14] It is noted that Ms Kanamaharage had some language difficulties and was provided an
interpreter. However, The Applicant was able to contact the Fair Work Ombudsman and she
was able to provide information regarding her underpayment in her statement to a high level of
detail. The Applicant was able to find the relevant industrial award which also covered her.
[15] I am not satisfied that the language difficulties were not surmountable that it caused a
delay. The explanation provided by the Applicant did not constitute an exceptional
circumstance. The Applicant has not established a sufficient reason for delay. This
consideration weighs against an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
[16] The Applicant states that she was dismissed on 7 November 2022 on her Form F2 and
further provides in her submissions that she knew she was dismissed when she was asked to
return her uniform on 15 December 2022.
[17] The Applicant further provided an email from the Fair Work Ombudsman on 24
November 2022 providing her the link to the Fair Work Commission which refers to dismissal
https://www.fwc.gov.au/
https://www.fwc.gov.au/
[2023] FWC 753
4
and treatment at work. It appears that the Applicant was aware of her dismissal at the time she
contacted the Fair Work Ombudsman on 21 November 2022.
[18] The latest date I could accept the Applicant being aware of the dismissal after it had
taken affect would be 24 November 2022. The Applicant would have still been 5 days out of
time from the latest date she could have been aware of the dismissal taking effect.
[19] This consideration weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
[20] The Applicant states she took steps to reach out to the Respondent between 8 November
2022 and 14 November 2022 to which she had received no response. However, it is unknown
whether the Applicant was disputing her dismissal or seeking pay entitlements. This factor is
a neutral consideration.
Prejudice to the employer (s.394(3)(d))
[21] The Respondent submits that the exercise of discretion to extend the time for filing the
Application causes prejudice to the Respondent because of the unnecessary time and costs
associated with having to defend it. It requires the Respondent to defend the Application in
circumstances which it would otherwise be barred because of the Applicant’s failure to comply
with the time limit.
[22] On this basis, the Respondent submits this factor is neutral in the consideration for the
granting of an extension of time. I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
[23] In Kornicki v Telstra-Network Technology Group,7 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.”
[24] Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s
claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
[25] The Commission may have consideration to fairness in matters of a similar kind that are
currently before the Commission or have been decided in the past.8
[2023] FWC 753
5
[26] In Umar Suleiman v Bunnings Group Limited [2021] FWC 3570 at [21], Deputy
President Easton determined that language difficulties do not constitute exceptional
circumstances, particularly if the language difficulties were not surmountable:
“[The Applicant’s] language difficulties were problematic but surmountable and, in
light of the other tasks he accomplished in the same period, do not constitute exceptional
circumstances.”
[27] In Paroz v Cielo Publishing Pty Ltd [2016] FWC 5283, Commissioner Roe determined
that regular communication with the Fair Work Ombudsman is not a sufficient reason for delay,
particularly when the Ombudsman notified the Applicant regarding the Fair Work Commission
and the unfair dismissal process.
[28] This consideration weighs against an extension of time.
Conclusion
[29] Having regard to all the matters set out above, I am not satisfied that exceptional
circumstances exist in this matter.
[30] I order that the application be dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR760682
1 Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].
2 [2019] FWC 25.
3 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
4 Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
5 [2018] FWCFB 901 [39].
6 Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty
Ltd [2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.
7 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
8 Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818, [31].
WORK COMMISSION THE SENS
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc3570.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc5283.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc1975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb287.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb2149.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb6963.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc6818.htm
