[2015] FWC 6963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jimmy Repo
v
Department of Defence, Australian Government T/A Defence People Group
(U2015/13011)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 16 OCTOBER 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Repo has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with The Commonwealth of Australia T/A Department of Defence (Defence). In a telephone conference convened on 13 October 2015 Mr Repo and Defence provided advice about whether the application was made within time and whether that time limit should be extended. This decision sets out the basis for my conclusions about those matters.

[2] Mr Repo endeavoured to lodge an application through the Fair Work Commission (the FWC) website late on 18 September 2015. He did not file an application form at that time but paid the required application fee. He filed his application form on 21 September 2015 after being contacted by FWC Registry staff who confirmed that no application form had been lodged on 18 September. In the application form Mr Repo advised that he became aware of the termination of his employment on 28 August 2015. Mr Repo provided the following explanation for the late lodgement of his application:

“I lodged an online application on 18/09/2015 but did not get the obvious option, not did I get any notification of the requirement, to lodge this form as well.”1

[3] On 22 September 2015 my Associate corresponded with both Mr Repo and Defence and advised that the extension of time issue would be considered through a telephone conference on 13 October 2015. Substantial information about the extension of time issue was provided to the parties. Mr Repo was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 6 October 2015.

[4] Additional information was received from Mr Repo in which he advised that he understood that he had lodged his application through the Fair Work Commission website on 18 September 2015 and that he had followed the requisite instructions, including payment for his application. Mr Repo advised that on 21 September 2015 the Fair Work Commission telephoned him and advised that he had not submitted a “form” but that if he did so by that day his application should still be accepted. Mr Repo submitted his application on that basis. Secondly, Mr Repo advised that he did not receive official written notice of termination until 31 August 2015 such that, even if his application was lodged on 21 September 2015, this was within the 21 day time limit. In this regard Mr Repo agreed that, on 28 August 2015 he was told that the termination of his employment would take effect on that day. However, he asserted that in the same telephone discussion, he was told that Defence would review his circumstances, but no further advice of that review was provided to him.

[5] The Employer’s Response to the application and the Form F4 objection to the application confirmed that Defence opposed the extension of time. Defence summarised its position with respect to the background to the termination of Mr Repo’s employment and the advice of that dismissal provided to him on 28 August 2015.

[6] It is also appropriate that I note that the FWC file records indicate that a Registry Officer telephoned Mr Repo on 21 September 2015 and advised him that no application form had been received with his application. The FWC file note records that Mr Repo advised that he was unaware which application he was required to lodge but that he had filed what he could, as he was aware that his application had to be lodged by 18 September 2015. The FWC file note records that application forms were emailed to Mr Repo and that he was advised to the process for consideration of an out of time application.

[7] Mr Repo participated in the telephone conference. Ms Henley appeared for Defence. 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] There is no dispute that Defence advised Mr Repo on 28 August 2015 that the termination of his employment took effect on that day. I have also accepted that Defence provided written confirmation of the termination of Mr Repo’s employment on 28 August 2015. An email advice to this effect, attached to Mr Repo’s application, confirms this. To the extent that Mr Repo asserts that he was not aware of the termination of his employment until 31 August 2015, when he received the confirmation letter to this effect, I do not accept that position. Not only does he agree that he was told of the termination of his employment in a telephone call on 28 August 2015, but the email of that same date, which he attached to his application, confirms this and provided him with the telephone contact details for the FWC and a caution about statutory lodgement time limits. Consequently, I have concluded that the termination of Mr Repo’s employment took effect on 28 August 2015.

[10] Mr Repo also asserts that I should regard his application as being lodged on 18 September when he sought to make an electronic lodgement. His advice was that:

“1. I followed the instructions on the Fair Work Commission website and arrived at the URL " It had the section "Lodging an application" with the first paragraph "You can lodge an application with the Fair Work Commission using our #online lodgement## facility or by downloading the relevant #form## and sending it to us at one of our #Commission offices##." (Note: I have indicated links to other pages like this "#LINK##".)

This paragraph leads the applicant to assume that there is no requirement to download a form, as a form is only mentioned in the second option of "sending it to us".

2. I followed the link "online lodgement" to the login page and logged in, selected a new matter, SA and "Unfair Dismissal". The page refreshed and I chose "1. Do you wish to lodge an application form and pay the $68.60 fee?".

3. This opened a page that I assumed to be the application form for Unfair Dismissal. The heading of this page was "Application for Unfair Dismissal, General Protections, Anti-workplace bullying or Unlawful Termination". It mentioned uploading documents, and since I had earlier been led to believe that I did not have to download and fill in any forms, I assumed that the documents mentioned were evidential. I clicked on "FWA instructions for filing" to find out "the accepted file formats", and then closed the page. I uploaded some emails that I had saved as text documents (I can not remember which exact format), assuming they would be used as evidence in my claim.

4. I checked the "Declarations" box and clicked "Submit". This led immediately to the payments page. I paid by credit card and received the message "Your payment reference number is: AX0RD9488062".

5. I assumed that this was my application and that it had been completed by close of business within 21 days (18/09/2015) of the date of my deemed termination and the date I was phoned (both 28/08/2015) to be told that the delegate's intention was to terminate my employment with effect on 28/08/2015.” 2

[11] I do not accept that Mr Repo’s application was made on 18 September. Rule 13 of the FWC Rules 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

[12] I have concluded that Mr Repo clearly intended to lodge an application on 18 September 2015, but, absent the receipt of an application form, there was no application lodged until 21 September 2015.

[13] To the extent that Mr Repo also asserts that weekend days should be excluded from any count of 21 days, I do not accept his position.

[14] Consequently, the application was made some 4 days outside of the 21 day time limit and can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd³ 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.”

[15] In applying this approach I have noted the position adopted by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd. 4 In that matter the Vice President noted that the concept of exceptional circumstances was then a relatively new provision. In Joy Manufacturing the Vice President concluded that a bone fide attempt to file an application through the FWC website within time represented an exceptional circumstance. It seems to me that the test later articulated in Nulty v Blue Star Group articulates a higher requirement for the existence of exceptional circumstances than evidence of an intention or attempt to lodge an application such that I am unable to automatically apply the Joy Manufacturing approach to Mr Repo’s circumstances. Additionally, Mr Repo’s circumstances are substantially different to those considered in Joy Manufacturing. Consequently, I have considered Mr Repo’s situation in its own right.

[16] In terms of the reason for the delay in the lodgement of the application, Mr Repo attributes this to failings in the Fair Work Commission electronic lodgement system.

[17] I am unable to accept Mr Repo’s submissions in this respect. The Fair Work Commission website clearly specifies the requirement that an unfair dismissal application form must be downloaded and completed before the electronic lodgement process can be effected. Simply and bluntly put, Mr Repo misread the information provided on the FWC website. This states:

“Forms cannot be completed on line. Forms need to be downloaded from the Commission’s website and saved on your computer or to disk and completed offline. Please remember to insert a scanned signature on any document that must be signed.
Click here if you intend to lodge an application for unfair dismissal, general protections or unlawful termination and have not completed the forms.”

[18] I do not consider that Mr Repo is able to properly apportion any fault for the late lodgement of the application with the FWC. His late lodgement of the application could be described as a modern day equivalent of posting an envelope without including the requisite application. It reflects an intention to lodge an application but an oversight which I am unable to characterise as exceptional.

[19] Secondly, Mr Repo has not satisfied me that he was told on 21 September 2015, that lodgement of the application form on that day would be acceptable. In this respect, Mr Repo has not established a credible basis for this assertion. Mr Repo’s advice to me on this issue was inconsistent, although I have noted that, on being advised that no application had been received, he took steps to lodge one promptly.

[20] A further factor is particularly relevant. Notwithstanding that Mr Repo was advised by email on 28 August 2015 that he could challenge the termination of his employment through the Fair Work Commission but that there were strict time limits, Mr Repo waited until 4:49 pm on the 21^st day after the termination of his employment took effect before seeking to lodge his application. His advice was that, on 2 September 2015 he sought that a review of his downgraded security classification occur by the appropriate authority and that he understood that this security down grading had led to his dismissal. Otherwise, and apart from seeking limited legal advice on 17 September 2015, Mr Repo simply waited for Defence to provide further information to him. In this respect he effectively did nothing until just prior to the end of the 21 day time limit.

[21] Consequently, having taken the entirety of the time since 28 August 2015 into account, I am not satisfied that Mr Repo has established a credible reason for the delay or that his reasons for the delay can be regarded as meeting the exceptional circumstance requirements necessary for an extension of time.

[22] In terms of s.394(3)(b), Mr Repo was aware that the termination of his employment took effect on 28 August 2015 on that day.

[23] I am not satisfied that the very limited review Mr Repo requested of his security classification represented a serious alternative challenge to his dismissal. The advice provided to him relative to his capacity to challenge the termination of his employment through the FWC makes his delayed actions all the more difficult to comprehend.

[24] There is no argument that an extension of time of this magnitude would prejudice Defence but I have not founded my decision in this matter on that premise.

[25] In terms of the merits of the application, the information before me does not enable a definite conclusion. The termination of Mr Repo’s employment with Defence followed a change to his security classification made by the separate authority responsible for determining security classifications. Defence asserts that, given this change, Mr Repo could not undertake the fundamental requirements of his position. Mr Repo has not established to me that the decision lacked a valid reason or was inherently unfair so as to positively favour the granting of an extension of time. Notwithstanding this concern, I have regarded the merits of the application as a neutral factor relative to the extension of time.

[26] Considerations of fairness relative to other persons in similar positions could lead to differing conclusions about an extension of time.

[27] On balance, and particularly given Mr Repo’s lack of substantive action until just prior to the expiry of the 21 day time limit, I have concluded that the material before me does not establish that Mr Repo’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR572743) giving effect to this decision will be issued.

Appearances (by telephone):

J Repo on his own behalf.

K Henley for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

October 13.

1 Form F2, para 1.4

2 Email from Mr Repo dated 6 October 2015, paras 1 - 5

3 [2011] FWAFB 975

4 [2010] FWA 1394

Printed by authority of the Commonwealth Government Printer

Jimmy Repo v Department of Defence, Australian Government T/A Defence People Group

[2015] FWC 6963

16 OCTOBER 2015

DECISION