FWC looks at issue of 'exceptional circumstances'
The Fair Work Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect. However, the Fair Work Commission (FWC) allows a degree of leniency if an application was filed beyond the said period under “exceptional circumstances.”
In this case, the worker’s application was late because she said she was unaware that her application remained in her email’s “drafts” folder.
The worker worked casually in a cafe in Gatton in the Lockyer Valley in regional Queensland.
The cafe is a small business employing three people. One day, the business owner told the worker that she was “dissatisfied” with her “reliability and performance,” and so the employer said “she would not be offered further shifts, with immediate effect.”
The worker argued that the employer’s decision was wrong but received an Employment Separation Certificate by email.
The worker said she “did not notice the email on her device.” Around the second week after dismissal, the worker visited the FWC’s website and read that an unfair dismissal application must be made within twenty-one days after a dismissal takes effect.
She downloaded the unfair dismissal application because she still had time to file.
She said she “started filling out the application but did not finish doing so as she was waiting for the Employment Separation Certificate (which she had, in fact, received but was unaware of).”
She saved the application on her device but did not send it because she “wanted to speak to a lawyer before submitting it.”
On the deadline of her application, she decided to send it on her device. However, she did not know that it remained “saved in her draft folder.”
According to records, the worker “did not check whether the application had transferred to her ‘sent items’ nor did she check if an acknowledgement was received from the commission.”
She was unaware that an email acknowledgement would be routinely sent to the sender of an emailed application.
Two days later, she emailed the commission and said: “Please find my unfair dismissal form attached to this email. I sent it through to meet the deadline, but I’ve just seen it didn’t send properly and has saved as a draft for some reason. I really hope you may take this into consideration.”
Was it an ‘exceptional circumstance’?
“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,” the Fair Work Commission explained.
“The reason for the delay is because [her attempt to send the email] failed, resulting in her application remaining in her draft folder rather than having been sent.”
“To her credit, [there are] occasional problems with internet coverage arise [in her area], but there [seemed to be] no internet coverage problem when she intended to send her application,” the FWC found.
“While she intended to send her application, she failed to do so by error on her part, and that error was a lack of attention to the process of sending the application to the Commission’s electronic address,” it said.
“The error was not the result of system error or conduct by any person other than the worker,” the commission added, saying that it was not an exceptional circumstance.
“While human error in using electronic devices is understandable it is not uncommon,” the FWC said. Thus, it likewise dismissed the worker’s late application.