Not dissimilar to waiting for a tram (wait a long time and three turn up in a row), there have been a number of recent full bench decisions relating to applicant disgruntlement with being rejected on jurisdictional grounds (ie outside of the 21 day limit to lodge an application for an unfair dismissal).

 

The Act provides (paraphrasing):

 

  • The application must be made within 21 days after the dismissal took effect; or within such further period as the FWC allows…
  • The FWC may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account:
    • the reason for the delay; and
    • whether the person first became aware of the dismissal after it had taken effect; and
    • any action taken by the person to dispute the dismissal; and
    • prejudice to the employer (including prejudice caused by the delay); and
    • the merits of the application; and
    • fairness as between the person and other persons in a similar position.

 

The meaning of “exceptional circumstances” was considered in 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.”

 

The recent cases being:

 

Case 1:

Appeal by Underwood against the order of Sams DP of 4 February 2015 [PR560721] Re: Terra Firma P/L t/a Terra Firma Business Consulting C2015/1839 [2015] FWCFB 3435 Catanzariti VP Watson VP Gostencnik DP Sydney 25 May 2015.

 

  • Unfair dismissal filed one day outside 21 day time limit.
  • Appellant submitted that delay was the result of a medical condition.
  • Medical evidence was sought after the time frame for lodgement passed.
  • Appellant sought permission to appeal arguing the Commission at first instance failed to consider significant facts, misinterpreted evidence and … incorrectly placed emphasis on the appellant ‘shopping around’ when it was due to health issues.
  • Full Bench found that the evidence was properly considered and …no error in original decision identified.
  • Permission to appeal refused.

 

Case 2:

Appeal by Tweed against decision and order of O’Callaghan SDP of 12 March 2015 [[2015] FWC 1681] Re: The Trustee for Furnlunga No 2 Trust t/a Harvey Norman Furniture Noarlunga C2015/2297 [2015] FWCFB 3443 Catanzariti VP Watson VP Gostencnik DP Sydney 26 May 2015

 

  • Application for relief for unfair dismissal filed three days outside 21 day time limit.
  • Appellant submitted that delay was the result of difficulty accessing legal advice and in lodging application electronically.
  • Appellant sought permission to appeal, arguing that the Commission failed to consider…the mental health of his son.
  • FB commented that the appeal process not intended as an avenue for an unsuccessful party to rerun their case.
  • Permission to appeal refused.

 

Case 3:

Appeal by Vickery against order of Drake SDP of 18 March 2015 [PR562112] Re: Affinity Education Group Ltd t/a Village Kids Bentley Centre A C2015/2397 [2015] FWCFB 3479 Catanzariti VP Watson VP Gostencnik DP Sydney 27 May 2015

 

  • Lodged an unfair dismissal application eight days out of time.
  • Reason given for the delay was that appellant was waiting for former employer to provide her with incident reports and was consulting doctors about her injury and taking medication.
  • Found the appellant had not demonstrated any error in the decision of the Commission at first instance.
  • Permission to appeal refused.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.