DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Belinda Medlyn
v
Cargo Packaging Pty Ltd
(U2021/7806)

DEPUTY PRESIDENT EASTON

SYDNEY, 1 NOVEMBER 2021

Unfair dismissal application filed out of time - representative error - application filed by email on Day 21 without attaching file - exceptional circumstances found - discretion to extend time warranted - order made.

[1] Ms Belinda Medlyn was dismissed from her employment with Cargo Packaging Pty Ltd (“Cargo Packaging”)on 12 August 2021. Section 394(1) of the Fair Work Act 2009 (“the FW Act”) required Ms Medlyn make her application for an unfair dismissal remedy within 21 days after the dismissal took effect, being midnight on 2 September 2021. 1 Ms Medlyn’s application was filed on 3 September 2021, being one day late.

[2] Ms Medlyn first sought assistance from a solicitor on 24 August 2021 (Day 12) and received advice in relation to her dismissal on 27 August 2021 (Day 15). In the afternoon of 2 September 2021 (Day 21) Ms Medlyn and her solicitor exchanged drafts of the Form F2 Application and at 7:17pm Ms Medlyn gave instructions to her solicitor to file her claim. At 7:25pm the solicitor tried to file the claim but did not attach the application document to the email. The email, sans attachment, was sent to both the Fair Work Commission and to Cargo Packaging.

[3] The error was identified and rectified the next morning. The Form F2 application was filed at 10:58am on 3 September 2021, being 11 hours later than the time limit in s.394(1) allows.

[4] For the reasons outlined below I find that there were exceptional circumstances - predominantly because Ms Medlyn was relevantly blameless for her solicitor’s error - and I have decided to make an order under s.394(3) granting Ms Medlyn additional time to commence her application.

Section 394 – Exceptional Circumstances

[5] An unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the FWC allows (per s.394(3)).

[6] The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome. 2 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.3

[7] Section 394(3) specifically requires the FWC to take into account the following matters when considering whether there are exceptional circumstances, viz:

“(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Belinda Medlyn v Cargo Packaging Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 6251
Decision Date: 1 NOVEMBER 2021

CaseChat Overview and Summary

Belinda Medlyn, a former employee, brought an unfair dismissal claim against Cargo Packaging Pty Ltd before the Fair Work Commission. Medlyn's dismissal was challenged on the grounds of it being unfair, and the company contested the claim based on procedural irregularities. The primary issue before the court was whether the application for unfair dismissal was filed within the statutory time limit and, if not, whether exceptional circumstances existed to warrant an extension of time.

The court considered the procedural requirements for filing an unfair dismissal application and the discretion available under the Fair Work Act to extend the time limit. Medlyn's representative had filed the application by email on day 21, but without attaching the necessary file. Despite this procedural error, the court acknowledged the representative's explanation that the delay was due to an administrative oversight. The court found that the circumstances were indeed exceptional, as the representative acted promptly upon realising the mistake and took immediate steps to rectify it by filing the complete application within a short period. Given these exceptional circumstances, the court exercised its discretion to accept the application as timely filed.

Accordingly, the court found that the application for unfair dismissal was accepted despite the procedural error, and the matter proceeded on its merits. The court did not provide a final outcome on the merits of the unfair dismissal claim but allowed the application to be heard. The decision underscored the importance of timely filings but also highlighted the court's willingness to consider exceptional circumstances when warranted.

Orders