Theodora Olympia Zevgolis v MaxNetwork Pty Ltd T/A Max Employment
[2010] FWA 4246
•10 JUNE 2010
[2010] FWA 4246 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Theodora Olympia Zevgolis
v
MaxNetwork Pty Ltd T/A Max Employment
(U2010/6303)
Vanessa Dique
v
MaxNetwork Pty Ltd T/A Max Employment
(U2010/6320)
DEPUTY PRESIDENT SAMS | SYDNEY, 10 JUNE 2010 |
Application for extension of time for filing of unfair dismissal applications.
[1] On 22 January 2010, Ms Theodora Zevgolis and Ms Vanessa Dique (‘the applicants’) were dismissed from their employment as Employment Consultants with Max Network Pty Ltd t/as Max Employment (‘the respondent’). The circumstances leading to the applicants’ dismissals are not strictly relevant for the purposes of these proceedings; suffice to observe that they were both dismissed for misconduct, having been found by the respondent to have acted fraudulently through reverse marketing activities.
[2] Both applicants filed applications, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), on 19 February 2010, seeking unfair dismissal relief pursuant to ss 390 to 392 of the Act. A conciliation of the applicants’ claims on 15 March 2010, did not result in any settlement, and, accordingly, the matters were remitted to me for arbitration.
[3] At the outset of the proceedings, Mr P Coady, of Counsel for the applicants, and Ms S Wellard, Solicitor from Australian Business Lawyers, for the respondent, both agreed that the matters should be joined and heard concurrently; with the evidence in one application being the evidence in the other. I accepted this proposition and ruled accordingly.
[4] It will be immediately apparent that the applications were filed outside of the 14 day time limit prescribed by s 394(2) of the Act, albeit that the applications were only 13 days late. The applicants seek the exercise of Fair Work Australia’s (FWA) discretion to extend the time for filing, such as to bring their applications within the unfair dismissal jurisdiction of the Tribunal.
[5] The applicants’ statements and evidence were therefore directed to the principle requirement in s 394(3) of the Act, for the Tribunal to be satisfied that there are ‘exceptional circumstances’ which warrant the exercise of the Tribunal’s discretion in their favour.
THE EVIDENCE
[6] The evidence in the proceedings was relatively straight forward and uncontroversial. The respondent’s business is a job network agency that assists unemployed workers to obtain employment. The respondent receives reimbursement through the Australian Government to undertake this work. Part of the revenue received by the respondent is through reverse marketing, whereby employees of the respondent are required to contact potential employers, in an attempt to secure work for the unemployed.
[7] Both applicants acknowledged that they were told they were to be instantly dismissed during a meeting with Management on 22 January 2010. Both applicants subsequently received (9 February 2010) dismissal letters dated 8 February 2010, in identical terms as follows:
I refer to discussions held with you on 21st January, 2010.
As indicated, MAX Employment has decided to terminate your employment on the grounds of fraudulent claims on Reverse Marketing. This action is taken in accordance with the terms and conditions of the Employment Agreement between MAX Employment and yourself.
As discussed your termination is effective as at close of business 22nd January, 2010. In accordance with the Employment Collective Agreement your final pay will comprise of the hours worked till 22nd January, 2010, any annual leave entitlements earned and we will pay you 1 weeks pay in lieu of notice. A separation certificate will be arranged for you.
[8] Ms Zevgolis gave the following reasons for the delay in filing her unfair dismissal application:
• During the dismissal meeting of 22 January 2010, Management (Ms Karen Cooper, Area Manager) told her the Department of Education, Employment and Workplace Relations (DEEWR) would be contacting the Federal Police in respect to the allegations of fraud. She was very upset, confused and frightened about this and on 27 January 2010, she met with a Senior Investigator at DEEWR, Mr Neil Stewart, to try and understand what had happened.
• On 5 February 2010, Mr Stewart contacted her and requested she provide a formal statement of what had occurred. He had assured her that she was not under investigation. This was confirmed in an email from him of the same day. As she was concerned with the legal effect of giving such a statement, she contacted the Marrickville Legal Centre the same day, for advice.
• After receiving the dismissal letter on 9 February 2010, Ms Zevgolis contacted a solicitor, Mr Alan Rigas, who told her not to bother pursuing an unfair dismissal claim, because the 14 days time limit under the Act had passed. About this time, she attempted to make an appointment with the Inner City Legal Centre, but could not do so until 17 February 2010.
• Ms Zevgolis said she did not understand the unfair dismissal process or the strict time limits for the filing of applications. She did not have money to pay a private solicitor for advice. As she had never been in this position before, her priority was the fraud allegations.
• Ms Zevgolis said she had taken steps to challenge her dismissal by contacting DEEWR.
[9] In oral evidence, Ms Zevgolis said that at the meeting on 21 January 2010, with Ms Lee Johnson (Acting Business Manager), Ms Tamara Kennedy (Regional Manager) and Ms Karen Cooper, she was told of the allegations, that her employment might be terminated and that she would be informed the next day of Management’s decision. She accepted that the next day she was told of the reason for her instant dismissal; that it was as a result of a DEEWR audit which had found that she had incorrectly completed reverse marketing.
[10] Ms Zevgolis said she did not discuss challenging her dismissal with the Marrickville Legal Centre because her priority was the allegations of fraud and whether she should provide a statement to the DEEWR Investigator.
[11] Ms Zevgolis accepted that the solicitor, Mr Rigas, did not actually tell her not to make an unfair dismissal claim; just that it was unlikely to be accepted.
[12] Ms Zevgolis said that on 17 February 2010, she met a solicitor at the Inner City Legal Centre between 5:00pm and 6:00pm. As she needed a day to construct and complete her application, it was filed the next day.
[13] Ms Dique gave the same reasons for the delay in filing her application as Ms Zevgolis, although she had met with Mr Stewart on 15 January 2010. She also noted that it was Ms Zevgolis who had contacted Mr Rigas. She also gave similar oral evidence to Ms Zevgolis in cross-examination.
Respondent’s Evidence
[14] Ms Karen Cooper attended both meetings with the applicants on 21 and 22 January 2010. Ms Cooper recalled that in the first meeting she told both applicants that the matter was serious and could result in the termination of their employment. She gave them an opportunity to respond. They had done so in both meetings. Ms Cooper said that following the applicants’ terminations, she had not received any communication, from either of them, disputing their dismissals.
[15] Ms Cooper said that at the meeting of 22 January, Ms Dique had said that she had not received adequate training on reverse marketing and that she had been following her Manager’s instructions.
[16] Ms Zevgolis sent an email to Ms Cooper on 24 February 2010, in the following terms:
I received my termination of employment on the 9th February. I also requested on the 22nd January (the day of my dismissal) if I could obtain a copy of the conversation that took place on the 21st and 22nd January. I have not reviewed this yet.
Could you please do this as soon as possible and send it to me.
[17] The applicants’ supervisor, Ms Tamara Kennedy, corroborated Ms Cooper’s version of events at the disciplinary meetings and added that it was not true that the applicants did not have an opportunity to respond to the allegations. Ms Kennedy also described the role performed by the applicants and the process of reverse marketing. Ms Lee Johnson’s evidence was also corroborative of Ms Cooper’s and Ms Kennedy’s evidence.
[18] In cross-examination, Ms Cooper acknowledged that she had not recorded in her statement the full extent of the conversation in the meetings with the applicants. The allegations arose from an ongoing and standard DEEWR audit. She said that at the time of the meetings, there was no investigation by DEEWR. Ms Cooper advised the applicants of the steps in the process and that it was up to the Department as to whether the Federal Police became involved. Ms Cooper denied telling the applicants they were under investigation by DEEWR at that time, because they were not. Ms Cooper conceded that Ms Zevgolis appeared shocked when she was told of the allegations.
[19] In Ms Kennedy’s cross-examination, she also accepted that not everything, which was said in the meetings, was recorded in her statement. She said Ms Zevgolis looked shocked when told of the allegations. However, she had been given an opportunity to respond.
[20] Ms Johnson, in cross-examination, said the Federal Police was mentioned in the second meeting. Both applicants looked shocked, but they were both given an opportunity to dispute the allegations. Ms Johnson deposed that the applicants were not told they were under investigation by DEEWR; rather, that an audit had identified certain irregularities.
SUBMISSIONS
For the applicants
[21] Mr Coady submitted that it was clear from the chronology of events, that immediate steps were taken by the applicants in respect to the allegations after 22 January 2010. They had sought a meeting with the DEEWR Investigator and had been assured they were not under investigation. They then took steps to contact the Marrickville Legal Centre. It was clear their energies were focussed on the fraud allegations. He conceded that perhaps they should have sought advice as to their unfair dismissal rights. After the threat of investigation had been removed by 5 February 2010, they had taken immediate steps to arrange a meeting with the Inner City Legal Centre. Mr Coady described these events as ‘exceptional circumstances’. Mr Coady argued that the potential investigation by DEEWR and the Federal Police was a ‘defect’ in the process and that it was open for FWA to find that the actual terminations were on 9 February 2010; thereby making their applications within time. Mr Coady submitted that the applicants were too shocked, upset and frightened to immediately contest their dismissals.
[22] Mr Coady further put that there would be no prejudice to the respondent if FWA granted this application and he believed their cases had merit. Mr Coady relied on the decision of Swan DP in Daniel Clarence McIntyre v Bechtel Australia Proprietary Limited[2010] FWA 3011, and its reference to the relevant principles in Brodie-Hanns v MTV Publishing (1995) 67 IR 298 (‘Brodie-Hanns’).
For the respondent
[23] Ms Wellard submitted that, although the applicants claimed they were shocked by the allegations and fearful of an investigation, the facts were that there was no investigation and they had known this, at least on 5 February 2010.
[24] As to ‘shock’ constituting ‘exceptional circumstances’, Ms Wellard relied on Atefeh Heydari-Torshizi v B 4 Kids Pty Ltd T/A B 4 Kids[2010] FWA 1536, as authority for the proposition to the contrary, particularly when no medical evidence was provided. In any event, this ‘shock’ had not seemed to hinder the applicants’ other inquiries with DEEWR and other legal advisers. Even so, ‘shock’ would not ordinarily constitute ‘exceptional circumstances’ in unfair dismissal matters. Ms Wellard noted that both employees were treated equally. Ms Wellard relied on Christopher Johnson v Jay Manufacturing Co Pty Ltd t/as Mining Machinery[2010] FWA 1394, for the principles of what constitutes the test of ‘exceptional circumstances’. She said that there was nothing in this case which fell within the ordinary meaning of the term.
[25] Ms Wellard also relied on a decision of Cargill C in Dahi Bakour v Fresh Poultry Pty Ltd[2010] FWA 1436, in which an applicant had pursued claims with the Fair Work Ombudsman (FWO), but had not otherwise taken action to dispute his dismissal. This case was very similar and should have the same result; namely, that the s 394 applications should be dismissed.
[26] Ms Wellard said the Tribunal would reject entirely the proposition advanced by Mr Coady that the real date of dismissal was the 9 February 2010. The applicants knew, unreservedly, that they had been dismissed on 22 January 2010.
CONSIDERATION
Statutory framework and relevant principles
[27] Section 394(3) is the governing section of the Act relevant to these applications. That section is expressed as follows:
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.
[28] The overarching consideration in cases such as this, is whether the applicants have satisfied FWA that ‘exceptional circumstances’ exist for the grant of an extension of time for the filing of their late applications. I recently discussed the meaning of ‘exceptional circumstances’ in this context inAttracta Gallagher v Kidz Biz Pty Ltd t/as Kidz Biz Pre-School & Long Day Care [2010] FWA 3778, where I said at paras [13] and [14]:
[13]It is an unassailable proposition that the inclusion of the expression ‘exceptional circumstances’ in s 394(3) of the Act represents a substantially higher bar to the exercise of the Tribunal’s discretion than when the test was ‘special circumstances’ under the Workplace Relations Act: See note to s 643. In this respect, I have had occasion to consider the recent decision of Lawler, Vice-President in Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, and I respectfully agree with his Honour’s conclusions at paras [25] to [28], as follows:
[25] There have only been a handful of decided cases on extension of time, under the FW Act. In only two of those cases has there been any consideration of what is meant by “exceptional circumstances”.
[26] In Shields v Warringarri Aboriginal Corporation 2 Kaufman SDP said:3
“The requirement that there be exceptional circumstances was not found in the Workplace Relations Act 1996 (the WR Act), the Act that preceded and was repealed by this Act. [FW Act]. Time for making an application under the Act [FW Act] is also shorter than it was under the WR Act: 21 days under the WR Act and 14 days under the Act [FW Act]. It seems to me that the alterations between the two acts evince an intention by the parliament that applications for relief should be confined to 14 days, except in rare cases; cases where there are exceptional circumstances. The use of the word "exceptional" also, in my view, evinces an intention that the hurdle for extensions of time is higher under the Act [FW Act] than it was under the WR Act.”
[27] In Parker v Department of Human Services 4, Whelan C addressed the issue as follows:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression 'exceptional circumstances' as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
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.”
[Mann v Minister for Immigration and Citizenship [2009] FACFC 150]
[28] While I agree with Kaufman SDP that the introduction of the requirement that there be “exceptional circumstances” means that “the hurdle for extensions of time is higher under the [FW Act] than it was under the WR Act.” However, with respect, I prefer the analysis of Whelan C in relation to what constitutes “exceptional circumstances” and I adopt it. The articulation of the meaning of the word “exceptional” relied upon by the Full Court in the judgment cited by Whelan C was directed at the ordinary English meaning of the word and, in the absence of any indication to the contrary in the FW Act, that is the meaning to be given to the word “exceptional” in s. 394(3).
[14]I have also had regard for the general principles underpinning the waiver of time limits for the initiation of civil proceedings. These principles are encapsulated in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, where McHugh J said at p 551:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"…
And at p 552:
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)…
And at 553:
…In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
[29] From the quotation I have just referred to, it will be seen that I do not agree with Mr Coady’s submission that the principles to be applied in this case are necessarily those found in Brodie-Hanns. That case was determined under a less stringent legislative test that now applies under the Fair Work Act. In addition, I note that unlike the former Act (Workplace Relations Act 1996), the reference to Brodie-Hanns is not a note to the corresponding section in the Fair Work Act. In my view, the Brodie-Hanns principles are conceptually different to the new, more constraining test of what constitutes ‘exceptional circumstances’ and any application under s 394(3) of the current Act must be viewed against that higher test.
[30] I will now deal with the courageous submission of Mr Coady that the real and effective date of the applicants’ dismissals was when they received their letters of dismissal (dated 8 February and received on 9 February 2010). He put that this was because the process was infected by their concerns with dealing with the fraud allegations. It seems patently clear the applicants knew, without doubt, that they had been dismissed on 22 January 2010. In their originating applications, their statements in these proceedings, their oral evidence and in Ms Zevgolis’ email of 24 January 2010, it was said unequivocally that they were instantly dismissed on that day and that they knew the reason for their dismissals. In my assessment, the letter dated 8 February 2010, did no more than confirm their dismissals. It did not raise any new allegations or additional information about which the applicants were unaware. Consequently, I have no trouble in concluding that the applicants were dismissed on 22 January 2010, and that they knew the reasons why. That finding satisfies s 394(3)(b) of the Act.
[31] I now deal with each of the other matters FWA is required to take into account when satisfying itself that ‘exceptional circumstances’ do or do not exist in this case.
Reasons for Delay (s 394(3)(a))
[32] At the outset, I can well understand and sympathise with the applicants that they were shocked, upset and frightened when told of the allegations. After all, it was a serious matter, with potentially, very serious consequences. Nevertheless, it must be said that the applicants’ shock did not hinder or restrict their inquiries and activities in contacting and meeting the DEEWR Investigator and contacting the Marrickville Legal Centre about their rights as to providing a statement to DEEWR. Moreover, it seems to me that it would be a very unusual reaction for an employee, when confronted with serious allegations resulting in dismissal, not to be shocked and upset by such allegations. The applicants here were hardly ‘Robinson Crusoe’ in that respect. In my opinion, this reason can not be considered to be an ‘exceptional circumstance’ for the purposes of s 394(3) of the Act. In addition, I respectfully agree with what SDP Richards said in Atefeh Heydari-Torshizi v B 4 Kids Pty Ltd T/A B 4 Kids, at par [7] and [8]:
[7]The Applicant reasons for delay in lodging her application are that she was in shock from having her employment terminated and she was unaware of the role of FWA in relation to a remedy. The Applicant was inactive, as it were, because of these reasons for some 16 days on her own evidence.
[8]These reasons do not assist me in finding that there were exceptional circumstances attending the late application. The extent of the apparent shock was not made out in any medical sense. In any event, the Applicant’s state of mind and degree of composure was not a hindrance to attending three service providers (the Townsville Community Legal Service Inc; the State Department offices and the Fair Work Ombudsman) and write a letter in clear and amenable terms to her former employer (on 20 November 2009).
[33] In addition, it should be steadily borne in mind that the applicants were not actually under investigation by DEEWR or the Federal Police, at the relevant times (or at all), and were expressly told so by the Investigator on 5 February 2010. I accept the respondent’s evidence that they were told of an audit and the possibility of an investigation. In my view, once having that burden lifted from their minds on 5 February 2010, it was incumbent on them to quickly lodge their applications, even though they had been advised their applications may not be accepted outside the 14 day time limit.
[34] It also follows that I do not accept that the applicants were ignorant of the Act’s requirements. They knew of it when Mr Rigas told Ms Zevgolis soon after 9 February 2010. They should have sought clarification of whether they could file the applications, notwithstanding doubt about their validity.
[35] I also find it curious that at least from 5 February 2010 to 17 February 2010, (when the applicants met with the Inner City Legal Centre), and even shortly after 22 January 2010, the applicants did not complete, what I consider to be a relatively simple and straightforward application form. It can be easily downloaded. There were no issues of language or lack of understanding of what was required. For very good public policy reasons, the form does not require legal advice for its completion.
[36] As a consequence, I find that the applicants’ reasons for the delay in filing their applications do not meet the test of what constitutes ‘exceptional circumstances’.
Any action taken by the person to dispute the dismissal (s 394(3)(c))
[37] I agree with Ms Wellard that the circumstances of this case are not dissimilar with what Cargill C considered in Dahi Bakour v Fresh Poultry Pty Ltd, where the Commissioner said at paras [28] to [31]:
[28]I am also prepared to accept that the applicant was unaware of his rights however, in this, he is no different to many other persons in his position.
[29]I note that no explanation has been provided as to why there was a delay of more than two weeks between the date of the letter from the Ombudsman’s office alerting the applicant to the timeframe for making an unfair dismissal claim and the actual lodgement. Even if the applicant’s depression is accepted as attributing to the earlier period of delay it does not account for this further delay when he and his wife were on notice that he was already out of time and should take prompt action.
[30]The applicant became aware of the alleged dismissal on the day it took effect.
[31]Although strictly speaking the applicant did not take other action to dispute the alleged dismissal he clearly took steps to contest surrounding issues by making his complaint to the Ombudsman.
[38] Accordingly, I would reject the proposition that by focussing on whether there was an investigation by DEEWR, or the Federal Police that this amounted to contesting the dismissal for the purposes of s 394(3)(c) of the Act. That said, it would have taken little effort or time to contest the actual dismissal by approaching the employer to reconsider its decision, particularly in light of Mr Stewart’s advice that there was no investigation of the fraud allegations. To my mind, this would have been the perfect trigger to seek a reconsideration of the respondent’s decision. I also note that it was not in dispute that the applicants had no contact with Management, post 22 January 2010, save for Ms Zevgolis’ email of 24 February 2010.
Prejudice to the employer (s 394(3)(d))
[39] Ms Wellard properly conceded that the respondent had not been unduly prejudiced by the delay, save for the usual prejudice of wasted time and costs in defending its case. In any event, I do not consider this to be particularly pertinent issue which would tip the balance in favour of FWA exercising its discretion to extend the time for filing of the applicants’ applications.
Fairness as between the person and other persons in a similar position (s 394(3)(f))
[40] As both applicants were treated in exactly the same way in terms of process and outcome, this factor is not a matter of any relevance to the determination of this case.
Merits of the application (s 394(3)(e))
[41] Ms Wellard also conceded, correctly in my view, that the applicants may well have arguable cases. Of course, the test is whether there is merit in the applications. From the limited information available, and accepting that a jurisdictional challenge of this kind would not ordinarily travel into the substantial merits of the case, it seems, at least arguable, that the applicants’ case may have some merit; for example, the strength of their claims might be related to whether the applicants had sufficient opportunity to consider an appropriate response to the allegations, or whether there had been inadequate training of the reverse marketing process. On the state of the evidence at this stage, I cannot say for certain. That said, I consider that no one single factor FWA is required to take account of under s 394(3) of the Act, should be afforded more weight than any other factor. In other words, the exercise of discretion as to whether ‘exceptional circumstances’ can be found to exist, is very much a balancing exercise after consideration of all of the matters the Tribunal is to have regard for. For these reasons, I am of the view (unfortunately in some respects) that the merit factor cannot weigh in favour of a finding of ‘exceptional circumstances’.
[42] For all of the foregoing reasons, I am not satisfied the applicants have satisfied the onus they bear in convincing FWA to exercise its discretion, pursuant to s 394(3) of the Act, to extend the time for filing of their unfair dismissal applications. Accordingly, the applications must be dismissed. An order giving effect to that finding shall be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr P Coady of Counsel, for the applicants
Ms S Wellard, Solicitor, Australian Business Lawyers, for the respondent
Hearing details:
2010
SYDNEY
7 May
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