As you already may know, your ex-employees have a time limit for prosecuting for an unfair dismissal or adverse action. This time limit is 21 days. This is a very literal time frame and from the 22nd day onwards the ex-employee must declare on their application to the Fair Work Commission that they have applied after the 21-day time limit set by the Fair Work Act.

Extension of time aka “out of time” claims have been very prolific of late, with over a dozen decisions in the last fortnight. In this edition, I have consolidated the main points (with a link to each decision), then case precedents which were common to the matters at hand.

I advise all employers who receive an unfair dismissal or adverse action claim to check this requirement as this has become an extremely high hurdle for applicants (ie your ex-employee) to jump. They must have “exceptional circumstances”. BUT you must declare that you object to the Fair Work Commission hearing this matter on the F3 form that you will be required to complete and send back to the Fair Work Commission.

Summary

As mentioned, an application for an extension time if very much skewed in the respondent’s favour. The onus is on the applicant to prove that there were exceptional circumstances that cause them to be late in making their application.

One thing in common is that “evidential proof” if required. For example on applicant stated that she suffered a psychotic episode was not good enough, but another applicant had two medicos attend and give evidence that mental health issues prevented the application to made within time.

Case 1 (Granted)

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4867.htm

• There was no action to dispute his dismissal until this application was lodged.
• The applicant had over 25 years of service; the delay is a relatively short period of seven days; lack of prejudice to the respondent; and the applicant has a prima facie case that his dismissal was unfair.
• Previously talked to his general practitioner about difficulties he had with his employer; and provided two medical reports. Both reports expressed that the applicant had felt stressed and anxious due to work related issues.
• The applicant found it very difficult to cope after his dismissal, and he travelled to Fiji (where he was born).
• The applicant said that he did not know that he could take action until he was told by a friend in early March that he could speak to the Fair Work Commission.
• The applicant had been accused of a safety breach, but he was not on site at the time it occurred (ie no merit).

Case 2 (not granted):

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5022.htm

• Restructure: The applicant’s position was to be made redundant. Offered temporary employment. Applicant agreed so long as the responded paid redundancy pay to the applicant at the end of the temporary tenement. The respondent took this as a refusal of the temporary employment and made the applicant redundant and paid all entitlements.
• Termination date 3 December 2018. Application for discrimination made 14 March 2019 (104 days late).
• Relied on “medical grounds: medical certificate from her obstetrician, who delivered her first child born 27 March 2019. The medical certificate indicated that the Applicant suffers from depression, anxiety and panic attacks and had been referred to a clinical psychologist during her pregnancy and for a period afterwards. It also stated that the Applicant has a history of severe epilepsy and had 2 temporal lobectomies in order to control her seizures. It further went on to say that she is under the care of a neurologist for her epilepsy. The obstetrician also confirmed that the temporal lobectomy operations to control the Applicant’s epileptic episodes have caused significant difficulties, including fatigue for the Applicant.
• No other medical evidence is led on behalf of the Applicant, however she explained that “each time I tried adding more detail to the form She had panic attacks, became severely depressed, anxious and suicidal,” and she further added, “anxious that the above-mentioned stresses would contribute to having a miscarriage.”
• During the hearing, the Applicant reconfirmed that she had difficulties and felt overwhelmed in completing the paperwork in Form F8 due to her medical condition, which included short-term memory problems.
• Evidence was led by the Respondent that during email correspondence with the Applicant, the Applicant had threatened on more than one occasion to file a general protections claim against the Respondent prior to the redundancy taking effect and that she was in the process of seeking legal advice.
• The Applicant provided no specific account as to why she did not lodge the application until 14 March 2019. In her testimony she maintained she had made attempts to complete the application, however due to her medical issues, she found it difficult to complete the task.
• The Applicant established she had a number of significant medical issues and was in her last trimester of her first pregnancy. Despite this, there was no specific evidence to support lodging her application 104 days late.
• The Applicant did not establish the reasons for the significant delay in lodging her application. With respect to allowing an extension of time, this criterion weighs in the Respondents favour.
• The Applicant stated that she would be disputing the redundancy during the meeting held 25 October 2018. In communications that followed, the Applicant indicated that she was looking for opportunities to continue working for the Respondent until at least the date that would give her the ability to make a claim for government funded Paid Parental Leave.

Case 3 (not granted):

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4892.htm

• The applicant’s casual employment ended after his last shift on 1 October 2014 and the relevant date for determining the date upon which the 21-day application period commenced is 2 October 2014 (out of time by 1,383 days).
• The applicant was unaware that his employment had ended.
• He was on workers’ compensation and considered he had obligations to participate in rehabilitation.
• He had not received oral or written communication of his employment ending.
• He was receiving legal advice for some of the period and his legal advisors did not advise him to make an application.
• He said that as a delegate for the National Union of Workers it was his understanding that Coles did not consider the practice of failing to offer shifts to an injured worker to be dismissal.
• The applicant had not received a letter from the respondent, notwithstanding it was the respondent’s policy to send such a letter to employees who had not worked for 90 days:
• The applicant did not dispute his dismissal until he made his application on 5 August 2018.
• The period of delay weighs against the exercise of that discretion in his favour.

Case 4 (Not granted)

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5072.htm

• Application was one day late.
• Due to the fact she was dismissed and due to her pregnancy, she felt “a lot of emotional stress” and that she had been treated unfairly, and so she was unable to dedicate “whole blocks of time” to the lodgement of the Application.
• Despite the pregnancy being a major part of her defence, the applicant said there was only one hospital visit during the 21 day timeframe for lodgement. The FWC finding that the medical evidence Ms Templin submitted does not support a finding that she experienced a level of incapacity following her termination creating circumstances which justify an extension of time.
• Having lived in Australia for less than one year and with English being her second language, she said it was particularly difficult for her to understand things and she required extra time to research and understand that what had happened to her was adverse action. The FWC found that here written and spoken English is near perfect.
• Time was spent during the 21 day timeframe for lodgement to pursue lost superannuation payments. This weighed in her favour.
• The Applicant was offered the services of the Workplace Advice Service enables eligible unrepresented individuals and employers to have access to free legal assistance provided by participating law firms and community legal services.
• One day late was no prejudice to the respondent.
• The Fair Work Commission needs to be satisfied that there was a combination of factors which, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.

Case 5 (Granted)

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5010.htm

• Lodged nine days late.
• Medical (mental health) issued were backed up by two doctors.
• Her treating practitioners consider her reaction severe. This severe reaction can properly be described as “out of the ordinary course”. It is a notorious fact that any employee on termination suffers stress and anxiety. However, on the basis of the medical evidence applicant’s reaction to the dismissal as a “severe reaction”.
“Together their evidence is consistent: this patient chose to manage her severe stress and anxiety by avoiding the very thing that (in the Applicant’s mind) caused it. It my view that this reaction is well beyond the usual level. That is, there are exceptional circumstances. On this basis, I have decided to exercise my discretion to allow until the date of the application as a further period of the application by Ms Hussey”.

Case 6 (Not granted)

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4363.htm

• 4 months and 26 days out of time.
• The applicant filed this application with the Commission on 26 March 2019. However, prior to the lodgement the applicant had extensively engaged with the Commission, and various Government agencies and public officials, regarding his situation and apparent intent to contest his treatment by Adelaide University, including the termination of his scholarship. This is a factor faintly supporting a finding of relevant exceptional circumstances.
• The applicant, following a disagreement regarding data discrepancies, the applicant alleged that he was subjected to “bullying, unfair dismissal, and a range of other procedural errors that have occurred in Government departments”. Also claiming that he was subjected to threats, blackmail and physical contact by university staff.

Case 7 (Granted due to communication per award relating to redundancy did not happen, 1 week pay awarded)

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5162.htm

• 24 days out of time.
• EOT from last day worked – does not include notice paid in lieu.
• Redundancy and EOT heard concurrently.
• The applicant saw her job advertised and asked for her job back to be told “Unfortunately this position was filled before Christmas”. This turned out to be a vacancy created due a resignation following the applicant’s redundancy.
• One week’s pay awarded.
Case 8 (Not granted)
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5167.htm
• 46 days late and that there is no evidence of the Applicant taking steps to contest the termination.

Case 9 (Not granted)

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4618.htm

• 28 days out of time.
• Mental health issues: psychotic episodes (Facebook ramblings that were removed the next morning and threatening to shoot her boss).
• The Fair Work Commission finding that “While it is clear that the Applicant was suffering from mental health issues at the time of her dismissal, that illness does not explain the totality of the delay”.

Case 10 (Not granted).

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4872.htm

• “Day” ends at midnight.
• 14 days out of time.
• The applicant is Nigerian, using this as a defence that he was the only one at the workplace “of colour”. The respondent was able to provide proof of performance management issues. The applicant subsequently did not pursue this line.
• He initially sought legal advice a couple of days after the dismissal. This initial advice was that the case lacked merit because he was in the minimum employment period at the time of the dismissal. Later advice from Jobwatch advised him of his ability to bring an adverse action claim. In short, he was claiming “representational error”.
Case 11 (Not granted)
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4974.htm
• 8 days out of time.
• Applicant told he was successful in new position with same company. He resigned his position before receiving the formal offer of employment from the respondent.

The legal bit

Section 394(3) of the Fair Work Act provides:

(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.

[4] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the applicant.

Precedents (ie “case law”)

The following are the main cases are used by the Fair Work Commission in determining “out-of-time” matters:

1. The meaning of “exceptional circumstances”

Nulty v Blue Star Group Pty Ltd where the Full Bench said:

“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.”

And

“Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

In Stogiannidis v Victorian Frozen Foods Distributors P/L, the Full Bench said:

“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.

“… 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”.

In Lucian Lombardo v Commonwealth of Australia, “…it is a high hurdle and the longer the delay the more difficult is the hurdle to surmount”.

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. In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the approach to be taken by reference to the following example:

“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.”

It was held in Giles v Mandurah Aquatic and Recreation Centre that it is not unusual for employees to be distressed when their employment is terminated and nor is it unusual for employees to be unaware of their options. Further, it has previously been found, it is common for employees to suffer shock and trauma as a result of dismissal from employment and it was said in Casey v Guardian Community Early Learning Centres:

“…stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay.”

“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) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

“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.”

2. Reason for the delay

See “Exceptional Circumstances”.

3. Whether the person first became aware of the dismissal after it had taken effect.

[Ed note: ALWAYS put employee dismissal in a formal letter advising of date the dismissal takes effect (and the reasons why – unless within the minimum employment period].

4. Any action taken by the person to dispute the dismissal

See, for example, Nikola Taras v IFM Services Pty Ltd T/A Sodexo. (U2019/1091):

The applicant engaged with the respondent all during the course of the period of unemployment. Finally meeting with the respondent. The Fair Work Commission finding, whilst this weighed heavily in his favour, however when taken overall:

“While I am sympathetic to [the applicant’s] circumstances, I am not persuaded that his difficulties were out of the ordinary course, unusual, special, or uncommon. While [the applicant] purports that he was advised to resign, ultimately that was a choice that sat with him. [The applicant] chose to resign from his permanent position in circumstances where he had not been provided with an offer of employment and he had not accepted such an offer through signing an employment contract. At the time he resigned, the recruitment process appeared to have not been initiated. For example, [the applicant] had not undertaken a medical assessment prior to resigning”.

5. Prejudice to the employer (including prejudice caused by the delay)

Brisbane South Regional Health Authority v Taylor:

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation period. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period”.

The Full Bench in Perry v Rio Tinto Shipping Pty Ltd considered this criterion and said:

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

6. The merits of the application

For the purpose of determining whether to grant an extension of time application, the Commission does not require a detailed consideration of the substantive case. In Kyvelos v Champion Socks Pty Limited, the Full Bench said:

“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 …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 Damien Haining v Deputy President Drake & Ors, the Full Court of the Federal Court said:

“At the end of the day, the person exercising the discretion has to make an overall judgment as to the appropriateness of extending the time. The extent and the cause of the delay will usually be factors relevant to that judgment; so also will other matters included in the summary, to the extent they apply to the instant case; and perhaps other matters as well. The acceptability of the applicant’s explanation for delay cannot be divorced from the effect of that delay on the respondent or other people If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.”

7. Fairness as between the person and other persons in a similar position

Deputy President Gostencnik in Morphett v Pearcedale Egg Farm considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’