Nethmie Lankika Sriyani Madiwela Madiwela Gamage Don v The Trustee For The Lt Corporate Management Unit Trust
[2024] FWCFB 368
•13 SEPTEMBER 2024
| [2024] FWCFB 368 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Nethmie Lankika Sriyani Madiwela Madiwela Gamage Don
v
The Trustee For The Lt Corporate Management Unit Trust
(C2024/2747)
| VICE PRESIDENT ASBURY | BRISBANE, 13 SEPTEMBER 2024 |
Appeal against decision [2024] FWC 1106 of Deputy President O’Neill at Melbourne on 29 April 2024 in matter number U2024/2118 – Construction of s. 394(3) – Approach to determining whether there are exceptional circumstances – Whether the Commission is required to take into account the enumerated matters in s. 394(3) in deciding whether there are exceptional circumstances or has discretion at large to make a finding as to existence of exceptional circumstances as a separate step from consideration enumerated matters – Finding that whether there are exceptional circumstances determined by reference to enumerated matters and not as a step separate from that consideration – Permission to appeal granted – Appeal dismissed.
Introduction
Nethmie Lankika Sriyani Madiwela Madiwela Gamage Don (the Appellant) was employed by The Trustee for The Lt Corporate Management Unit Trust (the Respondent) from 5 September 2022 until 17 December 2023 when she was dismissed. On 26 February 2024, the Appellant filed an application (the Application) with the Fair Work Commission (the Commission) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the FW Act).
As the Application was filed outside the 21-day timeframe specified by s 394(2) of the FW Act, Deputy President O’Neill, to whom the matter was allocated, was required to decide whether to extend time for the Application to be made if satisfied there were exceptional circumstances pursuant to s 394(3) of the FW Act. On 29 April 2024 Deputy President O’Neill issued a decision[1] (the Decision) in which she declined to grant an extension of time and dismissed the unfair dismissal application.
The Appellant now seeks permission to appeal and if granted, appeals the Decision. Under ss 400 and 604 of the FW Act, the Appellant can only appeal the Decision with the permission of the Full Bench. Under s 400 permission to appeal can only be granted if we are satisfied that it is in the public interest to do so. The parties were legally represented, with permission, before the Deputy President and before the Full Bench.
The Decision
The Deputy President in the Decision commenced by referring to the relevant provisions in the FW Act dealing with unfair dismissal applications made under s 394 and to the extension of time provisions at s 394(3) of the FW Act. She then highlighted the Full Bench authority of Stogiannidis v Victorian Frozen Food Distributors Pty Ltd[2] (Stogiannidis) which set out the correct approach for determining whether to grant an extension of time for general protections applications involving dismissal pursuant to s 366(2) and unfair dismissal applications pursuant to s 394(3) of the FW Act where such applications were made outside the required 21-day period[3].
In dealing with the reason for the Appellant’s delay (s 394(3)(a)) in filing the Application, the Deputy President set out the relevant facts, including that the Appellant commenced employment with the Respondent on 5 September 2022 as a delivery/customer service assistant before being promoted to the Warehouse and Logistics Manager role and that half of her time in that role involved logistics for the Garden State Bakery (the Bakery). The Decision then records that the Appellant was advised by the Respondent’s Operations Manager on 17 December 2023 by telephone that the Respondent was closing the Bakery. The Appellant subsequently received a text message that the Respondent was ceasing production, that as a consequence she was to be “let go”, and that HR would take care of the paperwork[4].
The Deputy President went on to record that the Appellant queried her termination entitlements with the Respondent on 20 December 2023 and that despite other enquires, received no further communication from the Respondent until she received a letter of termination on 5 February 2024. While dated 16 December 2023 the letter of termination had apparently remained unsent in the author’s email outbox until finally sent on 5 February 2024. The letter of termination stated the reason for termination was the Appellant’s visa status which did not permit full time work[5]. That explanation was different to the original explanation provided to the Appellant for the termination of her employment, being redundancy.
In then considering the delayed receipt of the letter of termination and the explanation for the termination, the Deputy President found that the Appellant was “clearly and unambiguously informed on 17 December 2023 that her employment was terminated”. The Deputy President found however that the Appellant had “provided a wholly acceptable explanation of the delay between 7 January and 5 February 2024” on the basis that she was informed on 17 December 2023 that her employment was being terminated on the grounds of redundancy and that it was entirely reasonable for the Appellant to have decided not to challenge her dismissal in those circumstances. It was only on the 5 February 2024 that the Appellant was made aware of the purported reason for her dismissal.[6]
The Deputy President then considered the further delay in the Appellant filing the Application from 5 February to 26 February 2024. In doing so, the Deputy President found that the Appellant’s submission that she believed her dismissal took effect on 5 February 2024, meaning that she had in fact filed her application within 21 days of that date, amounted to a submission that the reason for the delay was that of ignorance. She then observed that it is well established that ignorance of the 21-day filing requirement is not an acceptable reason for a delay. The Deputy President also took into account that there was no evidence that the Appellant had made enquires or sought advice on the time period before concluding that the absence of an explanation for the entire period of the delay weighed against a conclusion that there were exceptional circumstances present[7].
In dealing with whether the Appellant first became aware of the dismissal after it had taken effect (s 394(3)(b)), the Deputy President found that while the Appellant was advised of her dismissal on 17 December 2023, she did not become aware of the purported reason until after the 21-day period, this weighing in favour of a finding of exceptional circumstances[8]. On whether the Appellant took action to dispute her dismissal (s 394(3)(c)), the Deputy President found that the Respondent was “unacceptably slow to provide… the relevant information” and it was unclear whether the Respondent had made any efforts to ensure the letter of termination had been sent. In these circumstances the Deputy President found that this consideration weighed in favour of a finding of exceptional circumstances. The remaining criteria, that of prejudice to the employer (s 394(3)(d)), the merits of the application (s 394(3)(e)) and fairness between the parties (s 394(3)(f)) were treated by the Deputy President as neutral considerations[9].
After considering each of the criteria set out in s 394(3) of the FW Act the Deputy President in dismissing the application concluded as follows:
“[29] In summary, whilst this is a finely balanced matter, I am not satisfied that there are exceptional circumstances taking into account the various considerations both individually and collectively. The absence of an acceptable reason for the delay in making the application outweighs the actions taken by the Applicant to obtain information about her circumstances and the fact that she only became aware of the purported reason for the dismissal on 5 February 2024.
[30] As there are no exceptional circumstances, no additional time can be allowed for Ms Madiwela to make her application. This means that the Applicant is not entitled to apply for an unfair dismissal remedy.”
Grounds of appeal
The Appellant advances two grounds of appeal, being:
(1) The Deputy President fell into error by conflating the two limbs of discretion required to be exercised in considering whether to grant an extension of time. She did so by failing to firstly make a finding on the existence of exceptional circumstances before proceeding to consider whether to exercise her discretion to extend time having regard to the enumerated criteria in s 394(3).
(2) The Deputy President erred in concluding that the circumstances which led to the delay in filing her application did not constitute ‘exceptional circumstances’ under either;
- the construction of s 394(3) advanced by the Appellant; or
- in the alternative, the construction of s 394(3) that she applied.
The Appeal
An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[10] There is no right to appeal. An appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the FW Act applies. Under s 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal matters unless it considers it is in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.
The test under s 400 has been characterised as “a stringent one.”[11] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement.[12] The public interest is not satisfied simply by the identification of error,[13] or a preference for a different result.[14] In GlaxoSmithKline Australia Pty Ltd v Makin[15] a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”[16]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is because an appeal cannot succeed in the absence of appealable error.[17] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[18]
The appeal raises for determination the proper construction of s 394(3) and in particular, whether the Commission must in determining whether to extend time for the filing of an unfair dismissal application, first make a finding on the existence of exceptional circumstances before proceeding to consider whether to exercise its discretion to extend time having regard to the enumerated criteria in s 394(3). The appeal raises a question of law with broad application, namely, the proper construction of s 394(3). Against this, the arguments run by the Appellant are being raised for the first time on appeal. They are also contrary to long-established authority, as counsel for the Appellant (who did not appear at first instance) frankly acknowledged. However, given the application provides an opportunity to restate long-established authorities on the operation of s 394(3) (and therefore s 366(2)), we grant permission to appeal. We now turn to the grounds of appeal.
Ground 1
By the first ground of appeal, the Appellant contends that the Deputy President erred by conflating what it argues are the two limbs of discretion required to be exercised by s 394(3) of the FW Act. The Appellant submits that on its proper construction, s 394(3) firstly requires a finding to be made on whether exceptional circumstances are present. If so, a further exercise of discretion is then enlivened such that the Commission may determine whether to grant an extension of time for the filing of an unfair dismissal application taking into account the enumerated indicia listed at s 394(3).
As the resolution of this ground of appeal turns on the proper construction of s 394(3) of the FW Act it is necessary to say something about s 394. Section 394(2) of the FW Act provides that an application made under s 394(1) (an unfair dismissal application) must be made within:
(a)21 days after the dismissal took effect; or
(b)such further period as the FWC allows under subsection (3).
The Appellant’s date of dismissal was 17 December 2023 and the 21-day period expired on 7 January 2024. The Appellant filed her unfair dismissal application on 26 February 2024, 50 days outside the prescribed time.
Section 394(3) sets out the circumstances in which the Commission may grant an extension of time as follows:
“(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
(c) any action taken by the person to dispute the dismissal; 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.”
The meaning of the term “exceptional circumstances” where it appears in s 394(3) has been considered by previous Full Bench authorities, most notably in Nulty v Blue Star Group Pty Ltd[19] (Nulty) where the following was said:
“[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.”
It is apparent from a plain reading of the opening words of s 394(3) that the Commission is conferred with a discretion to allow further time beyond the statutory 21-day time period for the filing of an unfair dismissal application. That is clear by the use of the word “may” in the phrase “may allow a further period for the application to be made…” The exercise of the discretion to allow further time for the filing of an application is only enlivened if the Commission makes a finding that exceptional circumstances are present. Absent a finding of exceptional circumstances, the Commission is not permitted to exercise its discretion to allow a further period of time beyond the prescribed 21-day period for the filing of an unfair dismissal application. In the present case, the Deputy President found that exceptional circumstances were not present, meaning that she was not permitted to consider the exercise of discretion to extend time and consequently dismissed the application before her.
In determining whether exceptional circumstances are present the Appellant contends that s 394(3) is somewhat ambiguous and is susceptible to two available interpretations. On one construction, the Commission is required to “take into account” the enumerated indica in s 394(3) in determining whether exceptional circumstances exist. On the second construction which is favoured by the Appellant, the Appellant argues that the Commission’s task in determining whether exceptional circumstances are present does not require it to take into account the enumerated indicia set out at s 394(3). Rather, it has an “at large” discretion to make a finding as to the existence of exceptional circumstances, having regard to “all the circumstances” as stated in Nulty. If the Commission is satisfied that exceptional circumstances exist, the Commission may exercise its discretion to extend time for the filing of an unfair dismissal application taking into account the enumerated indicia in s 394(3).
We readily accept that the approach required by the Commission in extending time for the filing of an unfair dismissal application is a two-step process which we believe to be uncontroversial. That is, the Commission must first decide if exceptional circumstances are present. If such a finding is made, the Commission may then consider whether to exercise its discretion to allow a further period of time. What is in contest however is what the Commission is required to consider or take into account in reaching the required satisfaction on whether exceptional circumstances exist and when those matters must be considered. The Appellant contends that the Deputy President wrongly conflated the two steps by taking into account the enumerated s 394(3) indicia as part of her consideration of whether there were exceptional circumstances. We disagree with the Appellant for the following reasons.
Contrary to the Appellant’s contention, we do not accept that there is any ambiguity in s 394(3). The clause is clear in its command that in considering whether to allow further time for an unfair dismissal application to be made, the Commission may only do so if there are exceptional circumstances and, in making a finding on exceptional circumstances, must take into account the enumerated s 394(3) indicia. To the extent there is any doubt, a doubt we do not hold, the Explanatory Memorandum (EM) to the FW Act assists in resolving the point where it says as follows:
“1572. Subclause 394(2) provides that an application must be made within seven days of a dismissal taking effect. However, FWA has discretion to extend the timeframe for making an unfair dismissal application if it is satisfied that there are exceptional circumstances.
1573. This discretion must be exercised in accordance with subclause 394(3), which provides an exhaustive list of the factors FWA must take into account when determining if there are exceptional circumstances. These factors are based on the principles set down by the Industrial Relations Court of Australia in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.”
While caution must be exercised in relying on an EM in construing a statutory provision, we find no support for the Appellant’s contended construction. To the contrary, paragraph 1573. explicitly states that s 394(3) contains an exhaustive list of matters the Commission must take into account when determining if there are exceptional circumstances. That statement does not support and in fact rebuts the Appellant’s argument that there is a discretion “at large” in considering exceptional circumstances that is unfettered by consideration of the enumerated s 394(3) indicia.
Support for our view is found in Nulty where the task of determining whether to grant an extension of time for a general protections dismissal application was succinctly summarised as follows;
“[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
The Full Bench in Nulty clearly identified that the task was to firstly make a finding on the presence of exceptional circumstances. In doing so, the enumerated indicia in s 366(2)(a) are to be taken into account. The authority of Nulty which is equally relevant to unfair dismissal applications was later affirmed in Stogiannidis when the Full Bench said as follows:
“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
[18] In deciding whether there are exceptional circumstances such as to enliven the discretion to extend time the Commission must take into account the matters specified in s.366(2)(a)-(e).”
We are not persuaded by the Appellant that the above-referred authorities are wrong. In fact, we respectfully agree with and adopt Nulty and Stogiannidis to the extent they are relevant to the first ground of appeal. That is, in making a finding on whether exceptional circumstances exist, the Commission must take into account the enumerated indicia at s 394(3) of the FW Act. Having confirmed the correct approach, it is plainly apparent that the Deputy President took into account the enumerated s 394(3) indicia in reaching her finding on whether exceptional circumstances were present, as she was required to do.
Having found that s 394(3) has a plain meaning and is not susceptible to two interpretations as argued by the Appellant, it is strictly unnecessary for us to deal with further arguments raised by the Appellant. However, for the sake of completeness, we will also deal with the argument advanced by the Appellant that the origins and history of the provision support the alternate construction advanced.
The Appellant contends that its preferred construction of s 394(3) is supported by the history of the current statutory provision. That she says can be seen in the discretion at large conferred by the Industrial Relations Act 1988 (the IR Act) which was in operation at the time of Brodie-Hanns v MTV Publishing Limited[20] (Brodie-Hanns) in which Marshall J set out the relevant principles to be applied in exercising that discretion at large. That discretion at large having regard to the Brodie-Hanns principles was preserved by the Workplace Relations Act 1996 (WR Act) according to the Appellant. In enacting the FW Act, the Appellant submits that the legislature elected to tighten the requirements concerning the granting of extensions of time in general protections and unfair dismissal applications. However, the Appellant contends that the legislature guarded that discretion behind a threshold discretion, that of establishing whether exceptional circumstances were present. Support for this construction is said by the Appellant to be found in paragraphs 1572 and 1573 of the Explanatory Memorandum to the FW Act. The Appellant further submits that it is unlikely that Parliament by insertion of the new threshold of exceptional circumstances, intended to transform the Brodie-Hanns considerations from matters to be considered in weighing the discretion to extend time for the filing of an application to a lens through which to determine whether the circumstances were exceptional.
The Industrial Relations Act 1988 (the IR Act) relevantly provided as follows:
“170EA Application to the Commission for conciliation
………………
(3) An application under subsection (1) or (2) must be lodged:
(a)within 14 days after the employee receives written notice of the termination; or
(b)within such further period as the Commission allows on an application made during or after those 14 days.
…………………”
The IR Act established a statutory right for employees to make an unfair dismissal application. As can be seen, it specified a 14-day timeframe within which such an application could be made but permitted the Commission to “allow” a further period of time for applications to be filed outside the 14-day timeframe. No reference was made in the IR Act to matters that were to be considered in deciding whether to allow an extension of time, such as the reference to exceptional circumstances or the enumerated criteria now found in s 394(3) of the FW Act. We accept there was a broader discretion available under the IR Act in determining whether to “allow” a further period for a late application to be filed. However, the “gap’ in statutory prescription on matters that would guide the exercise of the discretion to extend time for the filing of an application was filled by court authority, most significantly in Brodie-Hanns. Marshall J summarised the relevant principles to be applied in considering whether to extend time for the filing of application under s 170EA of the IR Act as follows;
“I agree, with respect, that those principles are appropriate to be applied in the circumstances of this matter.
Briefly stated the principles are:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
Passage of the Workplace Relations Act 1996 (the WR Act) maintained similar wording to that found in the IR Act although the relevant provision in the WR Act specifically noted the Brodie-Hanns authority in respect of the principles applied in the exercise of discretion by the Commission in deciding whether to grant an extension of time. This can be seen in the following extract from the WR Act:
“643 Application to Commission to deal with termination under this Subdivision
………………………..
(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.
Note: In Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.
………………….”
As can be seen above at [20], the legislature in passing the FW Act codified, with some modification, in s 394(3) of the FW Act, the factors that had been set out it the Brodie-Hanns authority while at the same time introducing the stricter test of exceptional circumstances. Paragraph 1573 of the EM to the FW Act, which is set out above at [25], also specifically referred to the enumerated s 394(3) criteria as being drawn from Brodie-Hanns. Far from supporting the Appellant’s construction of s 394(3), we believe the history of the clause supports our preferred construction of s 394(3). That can be seen through the development of the provision under successive acts.
Under the IR Act there was a statutorily unfettered discretion although reliance was placed on the principles set out in the Brodie-Hanns authority in guiding the exercise of discretion by the Commission in considering whether to grant extensions of time. Although the WR Act also maintained a statutorily unfettered discretion, it included an explicit note making reference to the Brodie-Hanns principles. The Brodie-Hanns principles supplied the core statutory criteria in s 366(2) and 394(3) of the FW Act, albeit the stricter test of exceptional circumstances was also introduced. Far from preserving the “at large” discretion as argued by the Appellant, the history of the clause shows a progressive application and ultimately codification of the Brodie-Hanns principles into the enumerated s 394(3) criteria. We do not accept that the history of the s 394(3) provision supports the Appellant’s argument that there is a preserved discretion “at large” in the Commission determining whether there are exceptional circumstances that would justify the grant of an extension of time.
It follows from the foregoing that we must reject the construction of s 394(3) advanced by the Appellant. Ground 1 of the appeal is rejected.
Ground 2a.
By ground 2a. of the appeal, the Appellant submits that on the proper construction of s 394(3) as advanced in its first ground of appeal, the Deputy President erred by holding that exceptional circumstances did not arise in the circumstances. The exceptional circumstance was said by the Appellant to be that she was advised on 17 December 2023 that her dismissal was due to redundancy while the true reason for dismissal, that of her visa status, was not revealed until she received the letter of termination on 5 February 2024.
The Appellant submits that a determination of whether there were exceptional circumstances present did not require an application of the enumerated indicia in s 394(3) but rather, it required the Commission to make factual findings and then a determination of whether the factual circumstances constituted exceptional circumstances. The factual circumstances in the Appellant’s circumstances were said by her to be patently exceptional in the sense that they were “out of the ordinary course, or unusual, or special or uncommon” on the basis that it was not ordinary, it was unusual, or it was uncommon, for an employee not to be advised of the true reason for his or her dismissal. The Appellant submits that the circumstances of the present case in which the true reasons for the Appellant’s dismissal were withheld due to a technical error were unique and, if not unprecedented, certainly very rare.
We understand this ground of appeal relies on the Appellant succeeding in its first ground of appeal on the proper construction of s 394(3). As we have found above, the Deputy President was required to “take into account” all of the enumerated s 394 indica in reaching satisfaction as to the existence of exceptional circumstances. The factual circumstance the Appellant refers to above, that of the delayed advice of the purported reason for the Appellant’s dismissal, was certainly a circumstance that needed to be considered by the Deputy President when taking into account the s 394(3)(a)-(f) criteria. It was however but one of the circumstances the Deputy President was required to consider in taking all of the enumerated criteria into account. That she did take that circumstance into account is clearly evident at [14]-[18] of the Decision. She then went on to find that the delayed advice of the purported reason for dismissal until 5 February 2024 explained a significant portion of the delay in filing the application.
Had the Deputy President in fact considered the circumstance of the delayed advice of the dismissal reason to the exclusion of the enumerated s 394(3) criteria when deciding whether exceptional circumstances were present, she would have fallen into error. No error in the Deputy President’s approach is disclosed. Ground 2a. is rejected.
Ground 2b.
By ground 2b. of the appeal, the Appellant contends that even on the construction of s 394(3) applied by the Deputy President, she erred as the exercise of discretion was manifestly unreasonable.
The Appellant argues that the preponderance of indicia at s 394(3) were found by the Deputy President to favour the Appellant and that the most decisive and only factor telling against a finding of exceptional circumstances was the delay in the filing of the application following the Appellant becoming aware of the new purported reason for her dismissal on 5 February 2024. It is further submitted that in the extraordinary circumstance of the Respondent having furnished erroneous reasons for termination on 17 December 2023, an IT glitch, and in finding that each of the other factors were either neutral considerations or weighed in favour of the Appellant, it was manifestly unreasonable not to extend time to the Appellant to file her application. This was said to be particularly so in circumstances when the Appellant filed her application within 21 days of being notified of the true reason for her dismissal.
The Respondent submits that the Deputy President’s findings on each of the s 394(3) indicia, including in respect of the reason for the delay (s 394(3)(a)), was open on the material before her, that the discretion exercised by her in weighing the criteria was conducted in an orthodox and reasonable manner and no error of the type required by House v The King[21] has been identified.
We have considered this ground of appeal and the arguments advanced by the Appellant. As we have earlier found, the Deputy President clearly adopted and applied the correct test under s 394(3) of the FW Act. That required her to consider whether there were exceptional circumstances justifying an extension of time for the unfair dismissal application to be made, taking into account the enumerated s 394(3) criteria.
The Deputy President considered the significantly delayed advice of the purported reason for the Appellant’s dismissal. She accepted, appropriately in our view, that the delay caused by an IT glitch explained the Appellant’s filing delay up until the 5 February 2024. Beyond that date she found that the Appellant had failed to provide a credible explanation for the further delay to the 26 February 2024 when she filed her unfair dismissal application. The Deputy President then concluded that the failure of the Appellant to provide an explanation for the entire period of the delay weighed against a finding of exceptional circumstances. That finding was open to the Deputy President and no error is disclosed in her reasoning or conclusion.
While no issues are taken with the findings reached by the Deputy President on each of the remaining s 394(3) criteria, the Appellant argues that the Deputy President erred in the weighing of the various indica and that the finding that exceptional circumstances were not present was manifestly unreasonable. We disagree. The Deputy President applied an orthodox approach to her consideration of the various criteria. In doing so she found that aside from the reason for the delay (s 394(3)(a)), two criteria (s 394(b) & (c)) weighed in favour of a finding that there were exceptional circumstances, and the balance of criteria were neutral considerations. The Deputy President then weighed her findings on the criteria and concluded that while “finely balanced” the absence of an acceptable explanation for the delay in filing the application outweighed actions taken by the Appellant to obtain information about her termination and entitlements.
The test for granting an extension of time involves a broad discretion and a high hurdle of exceptional circumstances. While different decision makers may place more or less weight on certain matters, we are not persuaded by the Appellant that the Deputy President erred in the exercise of that discretion or that the finding that there were no exceptional circumstances in this matter was obviously wrong. The approach adopted by the Deputy President in assessing whether there were “exceptional circumstances” present was entirely consistent with the relevant authorities referred to above. The Appellant has failed to identify error, let alone appealable error, in relation to ground 2b. of appeal.
Orders
We order that:
(1) Permission to appeal is granted.
(2) The appeal is dismissed.
VICE PRESIDENT
Appearances:
P Dean of Counsel for the Applicant.
G Guida for the Respondent.
Hearing details:
2024.
Melbourne (via Microsoft Teams):
June 12.
[1] [2024] FWC 1106 (Decision).
[2] [2018] FWCFB 901
[3] Decision at [6]-[10]
[4] Ibid at [13]-[14]
[5] Ibid at [15]-[17]
[6] Ibid at [18]-[20]
[7] Ibid at [21]
[8] Ibid at [22]
[9] Ibid at [23]-[27]
[10] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.
[11] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 [43] (Buchanan, Marshall and Cowdroy JJ).
[12] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[13] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[14] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[15] [2010] FWAFB 5343.
[16] Ibid at [27].
[17] Wan v AIRC [2001] FCA 1803, 116 FCR 481 [30].
[18] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[19] [2011] FWAFB 975.
[20] (1995) 67 IR 298.
[21] 55 CLR 499 at pp 504-505
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