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Fair Work – Recent extension of time cases

FWA Cth s394(3) – Time issues/exceptional circumstances (another application made)

[2015] FWC 380 SA Nash v Discovery Holiday Parks Barossa (the A mistakenly lodged a general protections application – upon learning of this A, within three days, lodged late s394 application 26 days late – exceptional circumstances found)

[2015] FWC 632 Vic Smith v MacFarlane Generators (the A was dismissed on 24 October 2014 and brought general protections application 14 days later which he discontinued on 28 November, the same day he lodged these unfair dismissal proceedings – A’s “lack of knowledge about the differences between an unfair dismissal remedy application and a General Protections application was the reason for the delay” @22 – “this matter is somewhat finely balanced, with it being moved into Mr Smith’s favour for the reason that there is a demonstration of a desire, and somewhat strongly, on his part to challenge his dismissal from an early point. The evidence shows that he was acutely aware of the statutory time limit and wanted to ensure that he met it” @46 – extension granted)

FWA Cth s394(3) – Time issues/exceptional circumstances (bereavement)

[2015] FWC 780 NSW Nudd v Commonwealth Bank (“the combination of the obvious stress and anguish of her father’s illness and his ultimate death and the understandable confusion arising from errors made by the applicant’s representatives, constitute ‘exceptional circumstances’” @11)

FWA Cth s394(3) – Time issues/exceptional circumstances (combination of factors)

[2015] FWCFB 1830 Galati v Veneto Club (s366(2) case – Appeal allowed – “This is a case where there is in evidence a combination of ordinary factors some of which individually may not be particularly significant. However, when those factors are taken together they can be seen as exceptional. Given that the other factors are either neutral or weigh in favour of granting the application, we are satisfied taking into account all of those matters that there are exceptional circumstances which warrant consideration of whether to exercise the discretion to allow a further period within which the appellant’s s.365 application may be made” @32 – discretion exercised in A’s favour)

FWA Cth s394(3) – Time issues/exceptional circumstances (consent to extension of time)

[2015] FWC 2004 Vic Lees v Container Cargo Specialist (extension not granted even though R did not oppose it)

FWA Cth s394(3) – Time issues/exceptional circumstances (date of dismissal in question)

[2015] FWC 50 WA LeFebour v Prow (exceptional circumstances justifying extension found where it was not clear when A had been dismissed – there was a dated dismissal letter, but A did not see this letter until two days before conciliation conference)

[2015] FWCFB 2168 Dris v St Luke’s Family Practice Management Trust (Commissioner made no finding re the disputed fact of when A was dismissed – it was therefore not open to the Commissioner to find the application was not made in time)

FWA Cth s394(3) – Time issues/exceptional circumstances (electronic lodgement …)

[2015] FWC 1287 SA Smith v AgriExchange (A “referred to email advice he received from the Fair Work Commission … on 5 January 2015 advising of receipt of a payment for an unfair dismissal application but indicating that no application had been received. Mr Smith attached email advice from the FWC ‘e-filing’ facility to its Adelaide Registry office on 30 December 2014, which indicated that the application was lodged on that date [in time]” @4 – A’s version of events confirmed – FWC’s electronic system has shown to be unreliable in the past and the benefit of the doubt should go to A – exceptional circumstances found)

[2015] FWC 2053 Vic Medancic v CB & I Constructors P/L (extension allowed when claim lodged electronically about two hours late at 2am – A had tried to lodge it before midnight but had difficulties and there was no one to help at that hour)

FWA Cth s394(3) – Time issues/exceptional circumstances (internal review)

[2015] FWC 1185 Qld Merlino v Coles Supermarkets Australia (application 25 days late – “there is no general principle … that an employee who seeks to dispute a termination internally, and as a result does not file an unfair dismissal application within the required time, will not be able to establish exceptional circumstances, to justify an additional period to make such an application being allowed” @40 – A “was led to believe that his dismissal was being reviewed and could be overturned. Mr Merlino took immediate action to dispute his dismissal. He did not wait for an unreasonable period of time before doing so and filed an application for an unfair dismissal remedy as soon as he was informed by his solicitor that the review process was not in relation to his dismissal” @48 – the failure of two senior human resource specialists to make it clear to A that his dismissal was not being reviewed was unusual and out of the ordinary course – exceptional circumstances found)

FWA Cth s394(3) – Time issues/exceptional circumstances (language barriers)

[2015] FWC 1407 Vic Mojdhe v Oztran Aust (exceptional circumstances found where A’s application about 16 days late due to his English difficulties, geographical location in port Hedland and pressing personal circumstances (finding a new job and accommodation) – it was unchallenged that A “sought assistance from people he knew but no-one was able to help him. He said he attempted to phone lawyers and Fair Work but he was put on hold for ages and his phone ran out of charge or his credit ran out. He said that about a week before he posted the form he ran into an old friend who told him about unfair dismissal and helped him lodge the form” @9)

FWA Cth s394(3) – Time issues/exceptional circumstances (mistakes)

[2014] FWC 9357 Qld Jalil v BMD Constructions (application one day late because A miscalculated time period for lodgement – “That an applicant chooses to wait until the last date on which his application can be made within the required time, and then makes an error in calculating that date, does not without more, constitute exceptional circumstances” @8)

[2015] FWC 381 Newcastle Thurtell v Cessnock Automotive Group (“The reason for the applicant’s delay in lodgement was due to a mistake. He inadvertently failed to attach his Form F2 to the application that he emailed to the Commission within time on 5 June 2014” @10 – mistake remedied at first available opportunity – exceptional circumstances found)

FWA Cth s394(3) – Time issues/exceptional circumstances (overseas travel …)

[2015] FWC 215 WA Parker v Hire Intelligence International (the A was dismissed one day before going overseas on annual leave on a pre-planned holiday – application about six days late – “The Commission allows applications for an unfair dismissal remedy to be made by telephone, online lodgement, email, facsimile or post. It is more likely than not that throughout his time in Europe he would have been able to obtain access to either a telephone or a computer to allow an application to be made if he had chosen to do so” @10 – no exceptional circumstances found)

FWA Cth s394(3) – Time issues/exceptional circumstances (period of delay to be considered)

[2015] FWCFB 287 Shaw v ANZ (what constitutes ‘the delay’ which is the subject of s.366(2)(a)? –  “The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances” @12 per majority – “the circumstances between the commencement of the statutory period and its expiry will be relevant when considering the reason for ‘the delay’. However, the statutory period does not form a part of the delay contemplated by the relevant statutory provisions. It seems to me that the last sentence of paragraph 31 of the Full Bench decision in Ozsoy v Monstamac Industries Pty Ltd is capable of giving rise to uncertainty … [I]t is inconsistent with the logical predicate of the Full Bench decision to characterise any part of the statutory period as a part of the period of ‘the delay’” @41-45 per Comm. Lewin in dissent – “It seems to me that having accepted that the exacerbation of Mr Shaw’s mental illness explained a part of the delay, which on my construction of the relevant delay, following the decision in Ozsoy v Monstamac Industries Pty Ltd, is one day, it was an error to then discount that reason because of Mr Shaw’s actions during the statutory period in attempting to and successfully complying with directions issued by the Commission in relation to his application made under s.789FC of the Act. The second error was to make a finding against the weight of the evidence. Which finding was that the exacerbating effect of the termination of Mr Shaw’s employment on his mental illness was in fact to be considered unexceptional and that, contrary to the uncontested medical diagnosis, Mr Shaw was not affected by mental illness such that this could comprise the reason for the delay by miscalculation of the date when the application was to be filed within the statutory period” @55-56  per Comm. Lewin in dissent)

FWA Cth s394(3) – Time issues/exceptional circumstances (Postal issues)

[2015] FWC 314 Vic Ambrose v Target Australia (application one day late as A thought registered post was a same day service – “Ignorance or lack of understanding about the processes associated with sending mail by registered post can be considered in a similar category to ignorance of the statutory time limits, which has not been found to constitute an ‘exceptional circumstance’ that justifies the delay” @51)

[2015] FWC 1935 SA Michell v Genesee & Wyoming Australia (lost in the mail explanation not an exceptional circumstance)

[2015] FWCFB 2106 Leung v Chinese Community Social Services Centre (application one day late – appeal from decision refusing to extend time allowed – “the decision subject to appeal does not disclose that, in considering the reason for the delay in the making of Ms Leung’s UDR application, the Commissioner took into account the failure of Australia Post to deliver the ‘Express Post’ envelope containing her UDR application in accordance with the guarantee for next business day delivery suggested on the envelope” @25 – extension granted)

FWA Cth s394(3) – Time issues/exceptional circumstances (Potential impact on other employees)

[2015] FWC 423 SA Rowe v Reece Pty Ltd (the A’s son also employed by R – A concerned about potential impact on son – such not an exceptional circumstance justifying extension)

FWA Cth s394(3) – Time issues/exceptional circumstances (Psychological issues)

[2015] FWC 314 Vic Ambrose v Target Australia (application one day late as A thought registered post was a same day service – A suffered from adjustment disorder, mixed depression and anxietyvarious cases involving psychological issues canvassed – “The medical certificate provided by her General Practitioner, 2 days after her termination, makes no reference to incapacity other than for work. The evidence also indicates Ms Ambrose was able to do a number of things in the 21 day period, despite her medical condition” @41 – no exceptional circumstances found)

[2015] FWC 1387 NSW Underwood v Terra Firma (“‘elevated levels of stress and anxiety consistent with an adjustment disorder do not positively demonstrate that the applicant was incapable of lodging his application, within the 21 day timeframe” @12)

[2015] FWC 1822 Tas Woodiwiss v Allanvale Apartments & Motor Inn (application 33 days late -A’s doctor confirmed A’s “lack of action was related to her high level of anxiety and sense of powerlessness” @14 – A’s “cognitive functioning and coping mechanisms were significantly compromised during the relevant period – extension granted)

FWA Cth s394(3) – Time issues/exceptional circumstances (Reckoning of time)

[2015] FWCFB 287 Shaw v ANZ (“the overwhelming weight of the evidence compelled a finding that the reason for the delay of one day was Mr Shaw’s severe mental illness which caused Mr Shaw to make an erroneous calculation of the statutory period for the filing of the application. The exceptional circumstance was not the miscalculation. Rather, the exceptional circumstance was the severe mental illness from which Mr Shaw was suffering when the miscalculation was made” @58 Comm. Lewin’s dissent)

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