In two separate decisions, the Full Bench of the Fair Work Commission rejects appeals by workers for relatively ‘minor’ late applications.
In Dennis Obel v Central Desert Regional Council, the Commission at first instance refused an application to extend time for Mr Obel to file his general protection dismissal application which was only one day late. In Daniel Tracey v Diamond Protection Pty Ltd, permission to appeal was refused after the Commission refused an application to extend time for an employee who lodged his unfair dismissal application six days late. Both decisions affirm the high hurdle employees must meet to establish exceptional circumstances under the Fair Work Act.
In Obel’s case, Mr Obel lodged a general protection dismissal claim one day outside of the 21 day time period. He argued that the reason for the delay was that he was abruptly dismissed; had to find alternative accommodation and due to the remoteness of his location and internet and mobile telephone connectivity, was unable to lodge his application on time. Mr Obel also started preparing his application on 19 May 2020 (the day it was due) but when attempting to file the application, received an error message.
The Commissioner found that Mr Obel did not take any steps to challenge the termination ofhis employment when he first became aware of the dismissal until he filed his application on the very last day it was due to be filed. The Commissioner also considered any prejudice to the employer and merits of Mr Obel’s substantive application to determine whether an extension of time should be granted.
Although the Commissioner considered prejudice to the employer to be a “neutral factor”, Mr Obel’s application did not appear to have merit as he was “unable to properly articulate an argument that the termination of his employment was due to any workplace right” (as part of his general protections claim).
Interestingly, the Commissioner stated while the evidence tended by the parties was contested, and could not be tested at an extension of time hearing, she was nonetheless unable to conclude on balance that Mr Obel demonstrated a meritorious application.
The issue of fairness between the person and other persons in a like position was not a factor.
On appeal to the Full Bench, the Bench refused Mr Obel’s appeal noting that he admitted to taking his first step in filing his application on the deadline.
In Tracey, Mr Tracey alleged during the extension of time hearing that his employment was terminated by an email on 21 August 2020. Mr Tracey alleged that he did not become aware of his dismissal until 31 August 2020 when he received the termination letter by post. Whereas the employer argued that the effective date of termination was 21 August 2020, Mr Tracey argued that the effective date of termination was 31 August 2020. Mr Tracey’s unfair dismissal application was filed on 17 September 2020. After considering that Mr Tracey had previously used his work and personal email accounts, the Commissioner found that Mr Tracey in fact opened the email attaching the termination letter on 21 August 2020. The Commissioner found his simple refusal to read the employer’s email did not operate to delay the effective day of dismissal. Mr Tracey was 6 days out of time.
The above 2 cases demonstrate a few matters: –
- The “exceptional circumstances” test in relation to extension of time applications affirms established case authority setting a “high hurdle” for employees to successfully obtain extensions of time, to file their applications late.
- Employees seeking extensions of time should, amongst other matters, be ready to prove they took immediate steps to challenge any dismissal as soon as they become aware of the termination.
- A Full Bench hearing any application to appeal the Commission’s decision to refuse an extension of time application, is unlikely to disturb the decision at first instance where no appealable error is demonstrated, including where the Member has applied their discretion in relation to the factors that need to be considered under the Fair Work Act. As the Full Bench stated in Obel’s case, the fact that “the Commissioner took a different view to the Applicant on the determination of the various facts for determination, and their application to the considerations (under the Act) is not a factor that enlightens the public interest” – (i.e for leave to appeal the decision to be granted).
- As always, employees should act quickly as soon as they are aware of a dismissal to obtain prompt legal advice about the merits of their application and choice of application (or jurisdiction).
  FWC 4740, per Yilmaz, C. The Appeal  FWCFB 167.
 Appeal decision –  FWC FB 271 and decision first instance  FWC 5438, per Deputy President Millhouse.
 Ibid, paragraphs 34 – 39.
  FWCFB 167 at paragraph 11.