'Unfortunate but not exceptional,' says Commission
The Fair Work Commission (FWC) recently dealt with a request for an extension from a worker who said his mother was “in and out of the hospital,” contributing to further stress and pressure to comply with the deadlines. He also said he didn’t have access to emails or a proper phone since losing his income.
Glenn William Briggs sought an unfair dismissal remedy concerning the termination of his employment by Raw GTO Pty Ltd. The application was submitted on October 18, 2023.
Briggs was the employer's apprentice for over a year. He faced an oral application from the employer during a case management conference on November 15, 2023, requesting dismissal based on non-compliance.
On October 25, 2023, both parties received the FWC's directives and notices for the case management conference and hearing via email. Briggs failed to comply with the given directions, not filing the required materials by November 7, 2023.
On November 8, 2023, the FWC emailed Briggs, notifying him of the non-compliance and granting a short extension until the end of that day to submit the necessary materials. Briggs did not submit any materials by the deadline or at any subsequent time.
During the case management conference on November 15, 2023, Briggs did not participate. An associate of the FWC attempted to contact Briggs four times before and during the conference, but there was no response. Later, Briggs finally attended the hearing on November 22, 2023.
Worker's reasons for non-compliance
According to records, Briggs said that he had not been aware of the case management conference nor directions until around the time of the case management conference itself.
He said that he had not been able to access his emails or phone messages regularly since early July 2023, when he stopped working. His mobile phone was not working consistently. Before the FWC, he demonstrated "that his phone was being held together with tape."
Also, since he did not have an income, he could not fix his mobile phone or keep credit on it. Briggs said that he accessed emails and voice mail messages whenever he could add credit or use Wi-Fi at friends’ homes and publicly available free Wi-Fi.
Briggs also said that the main reason for the non-compliance was that he was caring for his mother, who was in and out of hospital. After the hearing, Briggs supplied a medical certificate covering this period.
Fair Work’s 21-day period
Under the Fair Work Act, an unfair dismissal application must be made within 21 days after the dismissal took effect or within an allowable period.
The Commission can extend the period under “exceptional circumstances,” defined as “out of the ordinary course, unusual, special, or uncommon.” However, it clarified the circumstances “do not need to be unique, unprecedented, or even very rare.”
The FWC must consider the following:
- the reason for the delay
- whether the person first became aware of the dismissal after it had taken effect
- any action taken by the person to dispute the dismissal
- prejudice to the employer (including prejudice caused by the delay)
- the merits of the application
- fairness as between the person and other persons in a similar position.
Were there exceptional circumstances?
The FWC found that Briggs’s evidence and submission about the delay in lodging his application was the same as the reasons for his non-compliance, namely:
“He was taking care of his mother, who was in and out of hospital; and-he did not have an income and was unable to regularly access his emails and voicemail messages. Briggs also said that he was shocked and depressed, and unfamiliar with what his rights were.”
In light of this, the FWC said that there “were not exceptional circumstances such as to allow a discretion to extend time.”
‘Unfortunate but not exceptional’
“The whole of the circumstances for Briggs was unfortunate but not necessarily exceptional,” the FWC said.
“Briggs contacted his employer during the statutory time limit but made no attempt to challenge his dismissal, despite being aware of his dismissal at the time that it occurred. Also, Briggs was aware prior to the dismissal that his employment was at risk.”
“He had not attended work and was informed in person of the reasons why he was prevented from attending work around mid-July 2023. The fact that he was unaware of his rights is not exceptional.”
“While he had difficulty accessing his phone and emails, he did succeed in doing so. His difficulties, taken together with caring for his mother, who was in the hospital, could have made the whole of his circumstances exceptional.”
“Despite the further opportunity, the only evidence provided of hospital attendance was for the time of the case management conference, not for the time around the statutory limit,” the FWC added. Consequently, the FWC dismissed Briggs’ application for an unfair dismissal remedy.
