Jeremy Woolley v Hunter Valley Grammar School - [2022] FWC 407

[2022] FWC 407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jeremy Woolley
v

Hunter Valley Grammar School

(U2022/668)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 28 FEBRUARY 2022

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed

Introduction

This decision concerns an application by Mr Jeremy Woolley (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

The termination of the Applicant’s employment with Hunter Valley Grammar School (Respondent) took effect on 17 December 2021. The unfair dismissal application was lodged on 11 January 2022.

Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 7 January 2022. The application was therefore filed four days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]

The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

Reasons for the delay

The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the…

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.

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Details

Case: [2022] FWC 407
Decision Date

CaseChat Overview and Summary

The applicant, Jeremy Woolley, sought relief for an unfair dismissal against Hunter Valley Grammar School, arguing that the dismissal was unjust and that the application was filed out of time. The court was required to determine whether there were exceptional circumstances to allow an extension of the time limit for filing the application. The Act allows the Commission to extend the time period for filing an unfair dismissal application only if it is satisfied that there are exceptional circumstances. The court had to consider various factors, including the reason for the delay, whether the applicant became aware of the dismissal after it took effect, any action taken by the applicant to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the person and other persons in a similar position. The applicant cited business closures over the holiday period, stress, difficulty in obtaining legal advice, and a representative error as reasons for the delay. However, the court found these reasons insufficient to constitute exceptional circumstances. The applicant was aware of the dismissal and had the full 21-day period to lodge the application, and there was no action taken to dispute the dismissal. The court also considered the merits of the application and found them to be relatively weak. Therefore, the court concluded that there were no exceptional circumstances and dismissed the application for an unfair dismissal remedy.

Orders