Alecia Lovelock v Ppg Industries Australia Pty Ltd

[2022] FWC 387

[2022] FWC 387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alecia Lovelock
v

Ppg Industries Australia Pty Ltd

(U2022/146)

DEPUTY PRESIDENT BEAUMONT PERTH, 24 FEBRUARY 2022

Application for unfair dismissal remedy

1. The issue

1. Ms Alecia Lovelock (the Applicant) applied for an unfair dismissal remedy, having been dismissed from Ppg Industries Australia Pty Ltd (the Respondent) on 6 December 2021. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).  This decision deals with the out of time objection.

1. The Applicant submits that her application was initially filed on the night of 27 December 2021 and was therefore filed within the statutory period.  However, she re-submitted her application on 31 December 2021, after having received feedback from the Commission on 30 December 2021, that her application had not been received.  The Applicant attributes the delay in filing her application on the public holidays in the Christmas period and on the Commission having not received her application due to the electronic format it was sent in.

1. Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other matters are not relevant for the purpose of the application.

1. For the application to now proceed, it is necessary for the Applicant to show that her application was made in time or to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.[1]

1. In short, the issues before me are:

a)   whether the unfair dismissal application was made within 21 days after the dismissal took effect; and

b)   if it was not, whether:

i.there are exceptional circumstances that warrant an extension of time being granted; and

ii.it is fair and equitable to grant that extension.

1. Background

1. The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application were as follows.

1. The Applicant commenced work with the Respondent on 21 May 2012.  She was dismissed from her employment on 6 December 2021 for purported underperformance, of which she was said to have received two warnings about and had been on a performance improvement plan for a period. 

1. By email dated 27 December 2021 time stamped 14:05:38 the Applicant emailed the Perth Registry and the Melbourne Registry.  The email’s subject line read, ‘Unfair Dismissal Claim – Alecia Lovelock, and read:

Hi

Please find attached my form for unfair dismissal claim. (Form F2)
Please advise if I have sent this to the incorrect mailing list.

Many thanks

1. In a letter emailed to the Commission, the Applicant confirmed that her unfair dismissal application was sent in the night of 27 December 2021.

1. By email dated 30 December 2021 time stamped 7:13am, the Melbourne Registry of the Commission emailed the Applicant informing her:

Dear Alana

The Fair Work Commission received the attached email from you on Tuesday, 28 December 2021.

We cannot access your email or attachments because of:

·the format of the files

·security restrictions on the files, or

·our security restrictions for file sharing websites (such as dropbox or google docs).

We cannot action your email because we cannot access the documents that you tried to send us.

If you have tried to lodge an application or send us documents about an existing case, we have not received the files. 

Please send us the documents again without any security restrictions in one of these formats:

·PDF

·Word

·RTF

·JPEG, or

·TIF

There are strict time limits for some application types.  Some applications are dismissed if they aren’t lodged within the time limits.

You can contact us for help by return email or on 1300 799 675. 

1. By email dated 31 December 2021, time stamped 2:40pm, the Applicant sent to the Melbourne Registry of the Commission a ‘PDF’ version of her unfair dismissal application. 

1. Extension of time

1. Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty).[2]  In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.  Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.

1. In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[3] the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

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.[4]

1. In the directions issued to the parties on 3 February 2022, both were referred to s 394(3) of the Act and the meaning of ‘exceptional circumstances’. After submitting their materials, the parties expressed that they were content to have the Commission determine the objection to the unfair dismissal application on the papers. Having considered the views of the parties, the materials submitted and Commission’s case management file, I determined that to be the appropriate course in light of s 577 of the Act.

3.1Reason for the delay

1. The Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[5]  The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances. A credible explanation for the entirety of the delay will usually weigh in the applicant’s favour however, all of the circumstances must be considered.[6]

1. The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[7]  However, the circumstances from the time of the dismissal are considered to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[8]

1. The Form F2 – Unfair Dismissal Application states the following at question 1.5:

Are you making this application within 21 calendar days of your dismissal taking effect?

1. The Applicant had marked in the affirmative that she was making the unfair dismissal application within the ‘21 calendar days’.  However, the Commission’s case management file showed that while an email had been received by the Applicant on 27 December 2021, her application had not been received.  So much was evident form the Commission’s email to the Applicant dated 30 December 2021.

1. In the state of Western Australia there were public holidays on, 27 December 2021 and, 28 December 2021.  It was therefore the case that the last day of the 21-day statutory period fell on 29 December 2021.[9] 

1. The Fair Work Commission Rules 2013 (Cth) (Rules) provide at Rule 13:

13 General requirements for lodging documents

(1) A document lodged with the Commission must:

(a) either:

(i) be on white A4 size paper; or
(ii) if the document is being lodged by email or using the
Commission’s electronic lodgment facilities—have an A4
page layout; and

(b) be typewritten, clearly written or clearly reproduced.

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the
Commission between 9 am and 5 pm on a business day; or
(b) sending the document by post to an office of the Commission; or
(c) emailing the document in accordance with rule 14; or
(d) using the Commission’s electronic lodgment facilities in
accordance with rule 15; or
(e) faxing the document in accordance with rule 16.

Note: The addresses of the Commission’s offices are available at
type="1">

Rule 14 sets the process for lodging documents by email.  It provides:

14 Lodging documents by email

(1) A document that is required or permitted to be lodged with the
Commission under these Rules may be lodged by emailing the
document to an email address approved by the General Manager for
the lodgment of documents by email.
Note: The email addresses approved for lodgment of documents are available at
However, if a matter has been allocated to a Commission Member, a
document lodged by email in relation to the matter must be emailed to
the email address of the Commission Member’s chambers approved
by the General Manager.
Note: The approved email addresses for Commission Members’ chambers are
available at If a document is lodged by email:

(a) the document must be attached to the email:

(i) for a statutory declaration—as a PDF or other image format
approved by the General Manager; and
(ii) for any other document—as an attachment in Word, RTF
or PDF format or another format approved by the General
Manager; and
(iii) without any security restrictions; and

(b) the covering email must state:

(i) the name, address, telephone number and fax number (if
any) of the natural person sending the email; and
(ii) an email address to which the Commission can send notices
or other documentation; and
(iii) if the document is an application commencing a matter—
that fact; and
(iv) if the document relates to an existing matter—the matter
number given to the matter by the Commission.
Note: For subparagraph (a)(i), the statutory declaration must be signed and witnessed.

(4) If a document lodged in accordance with this rule is an application
commencing a matter:

(a) the General Manager must send an acknowledgment of
lodgment, by email, to the person lodging the document; and
(b) the application is not taken to have been lodged until the
acknowledgment of lodgment mentioned in paragraph (a) has
been sent; and
(c) once the acknowledgment of lodgment mentioned in
paragraph (a) has been sent, the application is taken to have been
lodged at the time it was received electronically by the
Commission.

(5) A person who lodges a document by email must:

(a) retain a paper copy of the document; and
(b) retain a paper copy of either:

(i) a receipt indicating the document was delivered to the
Commission; or
(ii) the email as a “sent item” showing the transmission address
and the date and time of transmission; and

(c) produce the paper copies of the documents retained under
paragraphs (a) and (b) if directed to so by the Commission. (italics my emphasis)

1. On 30 December 2021, the Commission notified the Applicant that her application had not been received and on 31 December 2021, the Applicant submitted her unfair dismissal application.  I have found that the unfair dismissal application was made some two days late. 

1. The Applicant explained that her inability to make her unfair dismissal application before 23 December 2021, arose because she was awaiting a final payment summary from the Respondent.  The Applicant stated that she had wanted to ensure that her long service leave and annual leave payment was correct.  The Applicant explained that this information was only sent to her on the 23 December 2021, after having previously asked for it.  Further, the Applicant reports having had packing to do as she was going away first thing Boxing Day and Christmas Day.  This, said the Applicant, left her with very little time to check all the details and complete the paperwork to submit to the Commission. 

1. The reasons for the delay did not appear to be the Applicant’s ignorance about the time limit of 21 days, but rather a lack of knowledge regarding the type of electronic document that is acceptable for email lodgement.  Further, the Applicant noted that she did not make the application earlier because she was awaiting a final payment summary and was engaged in holiday preparations. 

1. In the decision of Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’, it was said that:

[I]n 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.[10]

1. It is accepted that ignorance of the timeframe does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[11]  

1. While the Applicant speaks of being occupied with holiday preparations and awaiting the receipt of a final payment summary prior to making the unfair dismissal application – these circumstances do not constitute exceptional circumstances.  A final payment summary is not required for the making of an unfair dismissal application.  In any event, when one was presumedly received, the Applicant did not send an email to the Commission until some four days later. 

1. While sympathetic to the Applicant’s circumstances and understanding that the making of such application during the Christmas period may prove challenging due to competing interests of holidays and the like, Christmas and holiday preparations, in and of themselves, also do not constitute exceptional circumstances.

1. Ignorance of the law regarding the acceptability of types of electronic documents, similarly, is not exceptional.  While I accept that the Applicant was not informed until 30 December 2021, that her application had not been received by the Commission, it was not until the afternoon of the next day that the Applicant submitted her Form F2. 

1. Furthermore, the Rules make it clear when an applicant can consider the application has been lodged.  It was not the case that it was reasonable for the Applicant to proceed on the basis that the application had been lodged or made, in circumstances where no receipt or acknowledgement of application had been provided in accordance with the Rules. 

1. Having considered the delay and appreciating the circumstances leading up to it, I am satisfied that the Applicant has not provided a credible explanation for the delay, and this therefore weighs against a finding of exceptional circumstances.[12]

3.2Whether the person first became aware of the dismissal after it had taken effect

1. At all material times from the time the Applicant was notified of her dismissal on 6 December 2021, until the date the unfair dismissal application was made, the Applicant knew she had been dismissed. I therefore consider this to be a neutral factor.

3.3Action taken by the person to dispute the dismissal

1. Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[13] I have considered all submissions and the evidence in this respect.  I consider there is insufficient evidence to find that the Applicant challenged her dismissal.  While the Applicant requested a final payment summary and copies of her written warnings, there is no suggestion that she challenged or disputed her dismissal.  This weighs against a finding of exceptional circumstances.

3.4Prejudice to the employer

1. I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances. 

3.5Merits of the application

1. In Kornicki v Telstra-Network Technology Group,[14] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said in respect to the merits of an application:

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.[15]

1. Evidence on the merits is rarely called at an extension of time hearing.  As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[16]  The merits of the application more generally would need to be scrutinised.  This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.  It is for these reasons that I have concluded this factor to be one that is neutral. 

3.6Fairness as between the person and other persons in a similar position

1. The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm,[17] where it was said:

[C]ases 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.[18]

1. Based on the materials filed and the circumstances, I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed.  As such, I consider it a neutral consideration. 

1. Conclusion

1. The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension. While the Applicant explained the reasons for the delay in making her unfair dismissal application, when the totality of the evidence is considered, I am unpersuaded that the Applicant’s circumstances are ‘exceptional’. It follows that the circumstances are such that I do not consider it fair and equitable to grant the extension.

1. The Applicant’s application for an unfair dismissal remedy is therefore dismissed.  An Order[19] will be issued with this decision.

DEPUTY PRESIDENT

Determined on the papers

Final written submissions:

17 February 2022

[1] Fair Work Act 2009 (Cth) s 394(3) (‘The Act’).

[2] [2011] 203 IR 1 (‘Nulty’).

[3] [2018] FWCFB 901 (‘Sotgiannidis’).

[4] Ibid [38].

[5] Ibid [17].

[6] Ibid [39].

[7] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 [40].

[8] Mr KeMitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].

[9] Acts Interpretation Act 1901 (Cth) s 36(2); The Act (n 1) s 40A(1).

[10] Nulty (n 2) [14].

[11] Rose v BMD Constructions Pty Ltd[2011] FWA 673 [14].

[12] Stogiannidis(n 3)..

[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[14] Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

[15] Ibid.

[16] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899 [38].

[17] [2015] FWC 8885.

[18] Ibid [29].

[19] PR738680. 

Printed by authority of the Commonwealth Government Printer

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