DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Stephen Carey
v
Comactivity Pty Ltd/GOC Retail
(U2021/4064)

DEPUTY PRESIDENT EASTON

SYDNEY, 18 JUNE 2021

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

[1] Mr Carey was dismissed from his employment on 20 April 2021. Section 394(1) of the Fair Work Act 2009 (“the Act”) requires Mr Carey to apply for an unfair dismissal remedy within 21 days after his dismissal took effect, being midnight on 11 May 2021.

[2] At 7pm on 11 May 2021 Mr Carey began final preparations for filing his application online. Some formatting problems arose during the evening and Mr Carey decided not to file his application online that evening, and to instead file his application in person the next day.

[3] Mr Carey accepts that he could have completed the process online, in time, during the evening of 11 May 2021 and that he chose instead to file a better version of his application in person, out of time, the next day.

[4] Section 394(3) of the Act allows the Commission to grant a further period for an application to be made, but only if the Commission is satisfied that there are exceptional circumstances.

[5] Whilst I am sympathetic to Mr Carey’s plight, for the reasons that follow there is no proper basis upon which I can be satisfied that there are exceptional circumstances.

[6] This matter illustrates the importance of the “exceptional circumstances” requirement inserted into the Act some time ago. If the power to extend time was not limited to only exceptional circumstances then I would grant the extension. This matter also illustrates why applicants generally should file their application on time, even if the application is not perfect. When preparing a form to commence a proceeding, an applicant has got to make sure it’s right but should not wait for perfection.

Section 394 – Exceptional Circumstances

[7] The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances” (per s.394(3)). The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:

“[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…

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 3529
Decision Date: 18 JUNE 2021

CaseChat Overview and Summary

In the Federal Circuit Court, Mr Stephen Carey brought an action against Comactivity Pty Ltd and GOC Retail, seeking relief for an alleged unfair dismissal. The dispute centred on the timeliness of Mr Carey's application for unfair dismissal, which was lodged beyond the statutory period. The court had to determine whether the delay was justified under the exceptional circumstances provision of the Fair Work Act 2009. The legal issues primarily revolved around the interpretation of the term "exceptional circumstances" and whether Mr Carey's specific situation qualified as such to warrant an extension of the statutory time limit for filing the application.

The court examined the criteria for what constitutes exceptional circumstances, noting that mere hardship or inconvenience to the applicant was insufficient. Instead, the court emphasised that the circumstances must be genuinely unforeseen and beyond the applicant's control. In this case, the court found that Mr Carey had not demonstrated that the delay was due to circumstances that were truly exceptional. The evidence provided did not show an unforeseen event or a situation that was entirely outside Mr Carey's control. Consequently, the court concluded that the application for unfair dismissal was not filed within the required timeframe and did not meet the threshold for exceptional circumstances.

Based on its findings, the court dismissed Mr Carey's application for unfair dismissal as it was filed out of time and did not qualify for an extension under the exceptional circumstances provision. The decision underscored the importance of adhering to statutory time limits in employment-related claims and highlighted that the onus is on the applicant to demonstrate truly exceptional circumstances to justify any delay. The court's decision was clear in rejecting the application, and no further orders were made beyond the dismissal of the claim.

Orders