Debby Dunstan v Routleys (Vic) Pty Ltd

[2021] FWC 5045

[2021] FWC 5045

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Debby Dunstan
v
Routleys (VIC) Pty Ltd
(U2021/6373)

COMMISSIONER O’NEILL MELBOURNE, 16 AUGUST 2021

Application for an unfair dismissal remedy – exceptional circumstances found - extension of time granted.

[1] These are edited reasons of the decision delivered ex tempore and recorded in transcript on 13 August 2021. Ms Dunstan was employed by Routleys (Vic) Pty Ltd as a packer. She was employed from 26 March 2014 until her employment was terminated effective 28 June 2021.

[2] On 20 July 2021, Ms Dunstan’s application for an unfair dismissal remedy was lodged with the Fair Work Commission (Commission). This was 1 day after the expiry of the 21-day period allowed for unfair dismissal remedy applications to be made. 1

[3] The question is whether additional time should be allowed for Ms Dunstan to make her application to the Commission.

Extension of time

[4] Additional time can be allowed under section 394(3) of the Fair Work Act 2009 (Cth) (Act) if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”. 2 

[5] In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

•  the reason for the delay,

•  whether the person first became aware of the dismissal after it had taken effect,

•  any action taken by the person to dispute the dismissal,

•  prejudice to the employer (including prejudice caused by the delay),

•  the merits of the application, and

•  fairness as between the person and other persons in a similar position.

Relevant factors

Reason for delay

[6] The Act does not specify what reason for delay might justify granting an extension however, decisions of the Commission have referred to an acceptable or reasonable explanation. 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, and 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. 3

[7] Ms Dunstan’s application was late because it was delivered to the offices of the Fair Work Ombudsman (FWO) and not the Commission. It was hand-delivered by Ms Dunstan’s husband on 15 July 2021, well within the 21-day time limit. The application was forwarded to the Commission the same day by express post by the FWO, but was not received until 20 July 2021.

[8] Following her dismissal, Ms Dunstan spent some time deciding whether to contest her dismissal, and then getting the documentation she thought she needed to include in her application. The information was ready and a cheque for the application fee was obtained from the Post Office on 14 July 2021. Ms Dunstan had relied on help from friends to print the application forms as she was unable to do so herself, and so she did not see there were alternative options to lodge her application, such as by email, and did not see the correct address of the Commission on the website. She was very anxious and worried that if she sent the application by post, it would not be received within the 21-day time limit. To ease Ms Dunstan’s anxiety, her husband offered to deliver the application in person, the next day, which involved driving from Geelong to Melbourne when he finished work after commencing at 3:00am. Ms Dunstan’s doctor had suggested she contact the FWO and gave her a note with their contact details. Ms Dunstan’s daughter had looked up the address of the FWO, as each of Ms Dunstan, Mr Dunstan and their daughter thought it was the same as the Fair Work Commission.

[9] I am satisfied that Ms Dunstan has provided an acceptable explanation for the delay and that is a matter that weighs in favour of granting an extension of time.

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

[10] Ms Dunstan became aware of her dismissal on 28 June 2021, initially in a telephone call with Mr Routley, and then when she received a formal letter of termination later that day.

Any action taken by the person to dispute the dismissal

[11] Ms Dunstan did not take any other action to dispute her dismissal and this is a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay)

[12] There is no evidence of any prejudice to Routleys if Ms Dunstan is allowed additional time to bring her claim. In this case, this is a neutral consideration.

Merits of the application

[13] The only information about the reasons for the dismissal are contained in Ms Dunstan’s application. No response has yet been filed by Routleys. The letter of termination of employment states that an investigation found Ms Dunstan to have engaged in certain conduct and that termination was on the grounds of misconduct. At this point there is little detail of the basis for the dismissal, and I treat this factor as a neutral consideration.

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

[14] I am aware of previous cases involving circumstances where an applicant has mistakenly sent their application to the FWO and not the Commission, causing the application to be lodged late.

[15] In Patricia Bucknor v Aero-Care Flight Support Pty Ltd, 4 the application was initially posted to the FWO within the prescribed time limit, and on discovering her error, the applicant promptly lodged with the Commission, 3 days late.

[16] Similarly, in Julie Abbott v Focus Press Pty Ltd, 5 an extension of time was granted, after the application was incorrectly faxed to the FWO within the statutory time limit. The FWO forwarded the application to the Commission resulting in it being lodged 16 days late.

[17] In both cases, the applicant, like Ms Dunstan, had made genuine efforts and believed that they had lodged their application with the correct organisation and within the time limit.

[18] Two other cases involving confusion with the FWO did not lead to an extension of time being granted. However, they involved different circumstances. In Salauzzaman Khan v AKS Security, 6 whilst the applicant had contacted the FWO about various issues relating to payment, there was no evidence that he had attempted to file an unfair dismissal application with the FWO.

[19] In Ashley Power v Baiada Farms Pty Ltd, 7 an extension was not granted as even if the application had been correctly addressed, it would still have been received outside the time limit.

[20] In this case, this is a consideration weighing strongly in favour of an extension of time being granted.

Conclusion

[21] In summary, Ms Dunstan took steps to ensure that her application was lodged within the statutory timeframe and attempted to do so well within the 21-day period. However, in not understanding the difference between the FWO and the Commission, the application was hand-delivered to the wrong organisation and the wrong address. Whilst the FWO promptly forwarded on the application, it was not received by express post for another 5 days.

[22] I am satisfied that the factors in combination are exceptional circumstances, and that it is appropriate to extend the time for Ms Dunstan to lodge her application to 21 July 2021.

COMMISSIONER

Appearances:

D Dunstan, Applicant.
S Routley, for the Respondent

Hearing details:

2021
Melbourne (by video)
August 13.

Printed by authority of the Commonwealth Government Printer

<PR732860>

 1   Fair Work Act 2009 (Cth), s 394(2)

 2   Nulty v Blue Star Group (2011) 203 IR 1 at [13]

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 4   [2012] FWA 9059

 5   [2013] FWC 2405

 6   [2020] FWC 5063

 7   [2019] FWC 1797