FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marola Amin
v
Mainfreight Distribution Pty Ltd
(U2021/11043)

COMMISSIONER WILSON

MELBOURNE, 23 DECEMBER 2021

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

[1] This decision concerns an application by Ms Marola Amin (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Amin’s employment with Mainfreight Distribution Pty Ltd (Mainfreight) was terminated with effect from 4 November 2021. The unfair dismissal application was filed in the Fair Work Commission (the Commission) on 1 December 2021.

[2] 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 Thursday, 25 November 2021. The application was therefore filed 6 days outside the 21-day period. Ms Amin asks the Commission to grant a further period for the application to be made under s.394(3). Mainfreight opposes this request.

[3] For the reasons set out below I am not satisfied on the material before me there are exceptional circumstances in Ms Amin’s case. Accordingly, I decline to allow an extension of time for the making of her unfair dismissal application.

[4] A hearing relating to the application was held by me on 21 December 2021, at which Ms Amin appeared on her own behalf and Ms Libby Pallot, solicitor, of Russell Kennedy appeared for Mainfreight. Permission for the Respondent to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)). Evidence was given in these proceedings by Ms Amin in her own behalf, and on behalf of Mainfreight by Mr Sander Vreeburg, the Respondent’s Branch Manager.

MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION

[5] 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’. Exceptional circumstances have been defined as 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

[6] 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.

[7]

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: [2021] FWC 6677
Decision Date: 23 DECEMBER 2021

CaseChat Overview and Summary

The applicant, Marola Amin, filed an application for unfair dismissal against Mainfreight Distribution Pty Ltd in the Fair Work Commission. The dispute centred around the termination of her employment and the alleged unfair dismissal. The Commission was tasked with determining whether the application was filed out of time and, if so, whether the circumstances were exceptional enough to warrant an extension of time. The applicant argued that the delay in filing was due to various mitigating factors, including a genuine belief that she had until a certain date to file her application.

The central legal issue was whether the Commission had the discretion to extend the time limit for filing an unfair dismissal application. The Commission considered the legislative framework, particularly the Fair Work Act, which mandates a strict timeline for filing such applications. Additionally, the Court examined whether the circumstances of the case were exceptional, as per the criteria set out in the Act. The key question was whether the applicant's reasons for the delay were sufficient to justify an extension of time.

In its decision, the Commission found that the application was indeed filed out of time. However, it held that the circumstances did not meet the threshold for being deemed exceptional. The Commission emphasised that while it has the discretion to extend time in certain cases, this must be exercised sparingly and only in situations where the delay is due to factors beyond the applicant's control. The Commission concluded that the applicant's reasons for the delay did not sufficiently justify an extension of time. Consequently, the application for unfair dismissal was dismissed.

The final orders of the Commission were that the application for unfair dismissal was dismissed due to the late filing and the absence of exceptional circumstances. The Commission did not grant the applicant an extension of time, and thus, the application was considered invalid. The decision underscores the importance of adhering to statutory timelines in employment disputes and the limited circumstances in which extensions may be granted.

Orders