Kerry Grey v CBH Group

Kerry Grey brought a claim for unfair dismissal against CBH Group before the Fair Work Commission (FWC), seeking an extension of time to lodge her application. Ms Grey was a casual employee who was allegedly dismissed in May 2021, but only became aware of the dismissal on 26 November 2021. She lodged her application on 6 January 2022. Section 394(2) of the Fair Work Act 2009 (Cth) requires that an application for unfair dismissal must be made within 21 days after the dismissal took effect. However, the FWC has the discretion to extend this timeframe if there are exceptional circumstances. The primary issue before the Commission was whether exceptional circumstances existed to warrant an extension of time.

The Commission considered several factors in its assessment, including Ms Grey's reason for the delay, whether she became aware of the dismissal after it had taken effect, any action taken by Ms Grey to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between Ms Grey and other persons in a similar position. Ms Grey was not aware of the dismissal until 26 November 2021, but this alone was not enough to warrant an extension of time. The Commission found that the rest of the delay from 26 November 2021 until the application was made on 6 January 2022 had no acceptable explanation. Ms Grey's decision to pursue her concerns directly with the employer during this period did not prevent her from lodging the application. The Commission also noted that the merits of the application were unlikely to succeed due to the nature of Ms Grey's employment, which was unlikely to meet the minimum employment requirements for continuous service.

After considering all the factors, the Commission concluded that there were no exceptional circumstances to warrant an extension of time. The application was therefore made out of time, and the Commission dismissed the application. The Fair Work Commission issued an order to that effect.