Contains issues that may form the basis of a jurisdictional issue
The Fair Work Commission may extend the time period for lodging a dismissal dispute application only if the Commission is satisfied that there were exceptional circumstances for not lodging the application on time.
The Commission will take into account:
These are circumstances that are:
They need not be:
Exceptional circumstances are NOT regularly, routinely or normally encountered.[3]
Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[4] The assessment of whether exceptional circumstances exist requires a consideration of ALL the relevant circumstances.[5]
Ignorance of the timeframe for lodgment is not an exceptional circumstance.[6]
The Commission must consider the reason for the delay.[7]
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, 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 (including the reason for delay) and the assignment of appropriate weight to each.[8]
A late lodgment of an application due to representative error may be grounds for an extension of time.[9]
There is a distinction between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay.[10]
The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable.[11]
Where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused.[12]
Where an employee has given clear instructions to lodge an application and the representative has failed to do so, the extension may be granted.[13]
A representative error is only one of a number of factors to be considered in deciding whether to extend the timeframe for lodgment.[14]
A representative error includes inactivity or failure to act promptly.[15]
Action taken by the employee to contest the dismissal, other than lodging a dismissal application, may favour granting an extension of time.[16]
Prejudice to the employer will go against granting an extension of time.[17] However the ‘mere absence of prejudice to the employer is an insufficient basis to grant an extension of time’.[18]
A long delay gives rise ‘to a general presumption of prejudice’.[19]
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.[20]
Prejudice to the employer means unfair disadvantage to the employer that was caused by the delay in filing the application.
The merits of the application are a relevant consideration in determining whether to exercise the discretion to extend the timeframe.[21]
A highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[22]
When considering the merits, the Commission may consider whether the employee has a sufficient case.[23] The Commission cannot make any findings on contested matters without hearing evidence.[24] Evidence on the merits is rarely called at an extension of time hearing.[25] As a result of this the Commission ‘should not embark on a detailed consideration of the substantive case’.[26]
This consideration may relate to fairness in matters of a similar kind that:
The comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of lodging an application under s.365.[28]
[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388 [25]; citing R v Kelly [2000] 1 QB 198, 208; cited in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [13].
[2] ibid.
[3] ibid.
[4] ibid., [26].
[5]Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 38.
[7] Fair Work Act s.366(2)(a).
[8]Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 39.
[9] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 [35].
[10] ibid.
[11] ibid.
[12] ibid.
[13] ibid.
[14] ibid.
[15] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) [28].
[17] ibid.
[18] ibid.
[19] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J).
[20] Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See also Jervis v Coffey Engineering Group Pty Limited), PR927201 (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003 [16].
[23] Kyvelos v Champion Socks Pty Ltd, Print T2421 (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].
[24] ibid.
[25] ibid.
[26] ibid.
[27] Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP, 15 April 2010) [24]‒[29].
[28] Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645 (unreported, Acton SDP, Kaufman SDP, Williams C, 29 September 2011) [26].