Delay costs worker: FWC denies Application filed 60 seconds late
In a decision confirming the strict application of filing deadlines in the Fair Work Commission (Commission), a worker has had her general protections claim rejected for filing her application at 12:01am on 1 May 2024, just 1 minute after the deadline of midnight on 30 April 2024.
Background to the case
In February 2024, whilst employed at a liquor retailer, the worker had interacted with a suspected shoplifter. The company’s policy is for employees not to engage with suspected shoplifters, and following this incident the worker received coaching regarding the policy. The employer found that the worker again breached this policy in March 2024, leading to their dismissal.
In making the general protections claim, the worker asserted that her employer contravened sections 340 (workplace rights protections), 343 (workplace rights coercion), 346 (industrial activities protections), 348 (industrial activities coercion), 351 (discrimination (the worker identified “disability – ADHD and criminal history” as falling under this protection)), and 352 (temporary absence for illness or injury) of the Fair Work Act 2009 (Cth) (Act).
Exceptional circumstances for extension of deadline
The crux of the matter before the Commission was whether the application fell within the 21-day period as outlined in s366 of the Act and, if it didn’t, whether there would be grounds to extend the deadline.
The worker argued that despite being dismissed on 9 April, they did not receive written notice of termination until 16 April 2024, and therefore the date of application fell within the 21-days. However, communication from the worker indicated that they were aware of the terms of dismissal and that it had occurred on 9 April 2024.
Under s366(2) of the Act, the Commission may allow an extension of the 21-day filing deadline if they are satisfied that there are “exceptional circumstances” that justify doing so.
The worker submitted that there were a number of reasons their application was delayed, and that these supported a finding of “exceptional circumstances”. These reasons included:
- The application was within the 21-day period as they believed the date of dismissal to be 16 April and not 9 April;
- The delay was due to a representative error;
- The worker was still in discussion with the employer and had sought clarification around the termination;
- The worker ran out of time to complete their application due to a familial death;
- The worker’s mental health was impacted due to the loss of employment; and
- An extension of time was warranted because the application was only filed 1 minute past the deadline.
Deputy President Bell addressed each of the statutory factors and found that none of those factors were supportive of a finding of exceptional circumstances in this case.
Specifically considering the worker’s claim that representative error was a cause for the delay in filing, Deputy President Bell found that the SDA representative assisting her did not lie on the application form, as the worker claimed. Evidence showed that on 29 April 2024, the worker had informed the SDA industrial officer that she would not be using the draft Form F8 Application that had been prepared as she did not agree with the content in it. Further evidence indicated that the worker would not file the prepared Form F8 Application that had been drafted by the representative as she alleged that the “SDA had been colluding with [the employer]”. Phone calls on 29 April 2024 documented that the worker was reminded of the 21-day time limit for filing their application, and in the same phone call the worker instructed the representative not to file the Form F8 Application, something the representative confirmed via email at 6:49pm on 30 April 2024. Deputy President Bell found it was clear that the worker had taken the responsibility of filing the Form F8 Application from the representative, and was well aware of the filing deadline.
One minute makes the difference
Addressing the worker’s claim that an extension of time should be allowed due to the application being filed only 1 minute late, Deputy President Bell considered a previous decision where lateness had been a factor. In Ozsoy v Monstamac Industries Pty Ltd , Gostencnik DP stated:[1]
“The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay”
Further to this, the Deputy President reaffirmed the observation of the Full Bench in Johnstone v Scotch College,[2] where it was stated that “the time in which an application may be filed is not a mere technicality. Such time limits are a fundamental part of the statutory framework and must be properly considered by decision makers.”
Deputy President Bell found that accepting an exceptional circumstance be found purely because the delay is short would be ignorant to the statutory framework set by Parliament, and concluded that the worker did not provide an adequate reason for the delay. The application for the Commission to deal with a dismissal dispute was dismissed.
Lessons for employers
The dismissal of the application by Deputy President Bell highlights several key points:
- Where applications are filed outside the 21-day period prescribed by s366 of the Act, exceptional circumstances will need to be shown to allow for an extension of time, even where the filing deadline is missed by a short amount of time.
- Parties must present relevant evidence when alleging grievances or wrongdoing, and must manage their own legal proceedings diligently. The absence of evidence to support the serious allegations of representative error in this case significantly impacted the credibility of the claims.
- Cases lodged out of time that are not well-founded and rational may tend against a finding that there are exceptional circumstances to allow for an extension of time. When assessing the merits of the claim, Deputy President Bell found the application was “far from compelling” and required substantial work to be considered a valid general protections claim.
Samantha Jo Peters v Liquorland (Australia) Pty Ltd [2024] FWC 1867 (20 August 2024)
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