[2015] FWC 5000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anita Sawyer
v
Employment Innovations T/A Michel’s Patisserie
(U2015/5650)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 23 JULY 2015

Application for relief from unfair dismissal - extension of time granted.

[1] Mrs Sawyer has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with Employment Innovations Pty Ltd (Employment Innovations). Employment Innovations operates patisseries known as Michel’s Patisserie. This decision follows a telephone conference convened on 21 July 2015 and details the basis upon which I have concluded that an extension of time is appropriate.

[2] On 31 May 2015 Mrs Sawyer lodged with the Fair Work Commission (the FWC) material in the form of handwritten notes of a disciplinary hearing, statements signed by other persons relative to the events that led to her dismissal and a typed document in which she asserted that the termination of her employment was unjust. Receipt of this material was acknowledged by the FWC on the following day. This advice from the FWC confirmed that no unfair dismissal application had been received and provided the application for Mrs Sawyer to complete and return. On 5 June 2015 the FWC wrote to Mrs Sawyer indicating that it had received an unfair dismissal application from her on 31 May 2015 but again confirmed that no application form had been received. This advice confirmed that, “in the absence of any advice from you within 14 days from the date of this letter this application may be dismissed”. Mrs Sawyer lodged an application (Form F2) on 13 June 2015. In her application, Mrs Sawyer asserted that her application was lodged within the 21 day time limit.

[3] The Employer’s Response to the application (Form F3) advised that Employment Innovations considered that the application was lodged outside of the 21 day time limit on the basis that the termination of Mrs Sawyer’s employment took effect on 13 made 2015 and the application was signed on 11 June 2015.

[4] The question of whether the application was lodged outside of the 21 day time limit and, if so, whether an extension of time should be permitted was referred to me for consideration.

[5] On 3 July 2015 my Associate sent correspondence to both Mrs Sawyer and Employment Innovations and advised that the extension of time issue would be considered through a telephone conference on 21 July 2015. Substantial information about the extension of time issue was provided to the parties. Mrs Sawyer was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 14 July 2015.

[6] No further information was received from Mrs Sawyer despite an email reminder sent to her on 17 July 2015.

[7] Mrs Sawyer participated in the telephone conference. At the outset, she advised that she had not received the 3 July 2015 correspondence and was participating in the conference only because of the reminder advice provided to her. Ms Yates, the Human Resources Business Partner, SA of Employment Innovations also participated in the conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[8] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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

(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.”

[9] If the application is taken as having been lodged on 31 May 2015 it must be regarded as having been made within the statutory time limit. Alternatively, if the application is taken as having been lodged on 13 June 2015, when the actual application form (the Form F2) was received, it was lodged outside of that 21 day time limit and can only be pursued if this time limit is extended. I have considered when the application was made in this context. Rule 13 of the FWC rules provide limited guidance in this respect. This Rule states:

“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

(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

[10] It is also appropriate that I note that Rule 9 refers to telephone applications in the following terms:

“9 Telephone applications

(1) This rule applies to a person wanting to:

(a) make an application under section 365 of the Act to the Commission; or

(b) make an unfair dismissal application to the Commission.

(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.

Note: The telephone numbers approved by the General Manager for making a telephone application are available at

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.

(6) If:

(a) either:

(i) the person pays the application fee; or

(ii) the Commission approves a fee waiver; and

(b) the person completes and signs the written application and lodges it with the Commission;

the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).

(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.”

[11] There is no suggestion that Mrs Sawyer lodged a telephone application. Consequently, I have considered whether the material that she lodged electronically on 31 May 2015 should be taken to represent an application.

[12] The advice received electronically on 31 May 2015 clearly establishes that Mrs Sawyer intended to lodge an unfair dismissal application. She paid the requisite lodgement fee on that date and recorded in her electronic lodgement that she had attached scanned documents and an unfair dismissal application. Obviously, that application was not attached and I have noted that the potential exists for an electronic lodgement to be made without an application form actually being provided. I do not consider that the material received by the FWC on 31 May 2015 should be regarded as an unfair dismissal application made pursuant to s.394. In contrast, had it been the case that Mrs Sawyer lodged an incomplete application, a different conclusion may have followed. I regard receipt of the Form F2 as an essential element of an electronic lodgement. Accordingly, I have regarded Mrs Sawyer’s unfair dismissal application as being lodged on the date upon which the FWC received her completed Form F2, namely 13 June 2015. Accordingly, I have concluded that Mrs Sawyer’s application was lodged 10 days outside of the 21 day time limit specified in s.394(2)(a) and it can only be pursued if that time limit is extended pursuant to s.394(2)(b).

[13] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] 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.”

[14] I have concluded that the reason for the delay in the lodgement of Mrs Sawyer’s application was that she understood that her application had been lodged electronically on 31 May 2015. Further, that she did not check her emails for some time after that date so that it was not until she received a telephone call from a Fair Work Commission Registry employee on 11 June 2015 that she became aware that her application form had not been lodged. Mrs Sawyer then lodged the application form on 13 June 2015. Notwithstanding some uncertainty about when Mrs Sawyer actually considered the emails sent to her by the Fair Work Commission Registry on 31 May 2015 and 5 June 2015, I have noted that the 5 June 2015 advice acknowledge receipt of an application and clearly specified that “In the absence of any advice from you within 14 days from the date of this letter, this application may be dismissed.” Mrs Sawyer’s application was received within 14 days of that advice. Accordingly, and fundamentally because of the advice provided to her by the Fair Work Commission Registry, I consider that there is an acceptable reason for the delay in the lodgement of the application. Had it been the case that the advice provided to Mrs Sawyer by the Commission simply affirmed that no application had been received and, possibly referred to the 21 day time limit, I would most likely have reached a different conclusion.

[15] It is clear from Mrs Sawyer’s application that she was aware of the termination of her employment on the day it took effect.

[16] Mrs Sawyer agrees that, apart from the late lodgement of this application, she did not pursue other actions so as to challenge the termination of her employment.

[17] I do not consider that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[18] In terms of the merits of the application, the information before me does not enable a definite conclusion. Accordingly, I have regarded the merits of the application as a neutral factor relative to the extension of time.

[19] Considerations of fairness relative to other persons in similar positions do not provide a definitive position relative to an extension of time.

[20] Accordingly I have concluded that the material before me establishes that Mrs Sawyer’s circumstances can be regarded as exceptional so as to warrant an extension of time. The time for lodgement of the application will be extended on this basis and an Order (PR569704) giving effect to this decision will be issued and the application will be referred for conciliation.

Appearances (by telephone):

A Sawyer on her own behalf.

M Yates for the Respondent.

Hearing (Conference) details:

2015.

Adelaide:

July 21.

1 [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

Anita Sawyer v Employment Innovations T/A Michel's Patisserie

[2015] FWC 5000

23 JULY 2015

DECISION