Will the Fair Work Commission consider circumstances as 'exceptional'?
The Fair Work Commission recently received a request from a worker to extend her dismissal claim beyond the required period, alleging that she was a non-citizen who had to face “immigration concerns” after dealing with her grandmother’s death. She said she was overwhelmed with traveling to her home country for the funeral and the responsibilities that followed.
On November 8, 2023, the worker, Hannah Cursley, submitted an application for unfair dismissal, seeking redress regarding the termination of her employment with her employer, Worley Services Pty Limited. She said she was terminated on October 12, 2023.
The Fair Work Act 2009 (Cth) provides a 21-day window for filing such applications, and Cursley submitted beyond this timeframe, requiring the Fair Work Commission's approval for an extension.
She filed the application on November 8, 2023, making it 6 days overdue. The employer said her case was a genuine redundancy.
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.
Delayed Fair Work application
According to records, the reasons cited for the delayed submission of the application revolve around the sudden illness and subsequent death of the worker's maternal grandmother in the UK on October 21, 2023.
She said that the unforeseen and swift nature of these events compelled the worker to provide additional care and support to her grandmother, mother, and other family members, followed by arrangements after her grandmother's passing.
The worker said that these circumstances, coupled with the emotional toll on her physical and mental health, made it challenging to prioritise her unfair dismissal application before November 8, 2023.
Furthermore, the worker said she suffered a significant loss because her grandmother played a crucial role in her upbringing during her youth.
She said that her mother required additional support during this period. As a non-citizen in Australia on a visa arrangement, the worker expressed anxiety about her ability to return to Australia after attending her grandmother's funeral.
Seeking immigration advice during this period, she ensured that travel and funeral arrangements were addressed by November 7, 2023, enabling her to submit the unfair dismissal application the following day. The submission included apologies and a request for an exemption, given the circumstances.
The worker provided documentation such as her grandmother's death certificate, records of the memorial service dated November 28, 2023, receipts for psychological support services received, and booking receipts for her return flight from Melbourne Airport to London Heathrow.
‘Clear, documented, and compelling’
The FWC ruled that Cursley “has provided clear, documented, and compelling reasons for the delay in making her application.”
“As soon as possible, after the circumstances confronting her were addressed, she promptly took steps to proceed with and lodge her application.”
The FWC also noted that “while sad and unfortunate, the passing of family members and loved ones is not necessarily uncommon and is an inevitable consequence of life. Each circumstance of the end of life and its impact and ramifications on those of us left behind will be different and need to be considered on its own merits.”
However, it said that in Cursley’s case, “her grandmother was a significant carer for her in her youth, she resided in the UK, and Cursley’s visa status created some legitimate concern as to her ability to return to Australia that needed to be addressed.”
“These circumstances faced by Cursley cannot be considered ordinary, common or regular,” it said. The FWC also said that “it is not necessarily regular, routine and/or common for employees dealing with the passing of family members to have to travel overseas or navigate immigration law.”
Thus, it ruled that there were exceptional circumstances in this case and granted an extension of her application.
