Unfair dismissal; extensions of time

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The vexed issue of when the Fair Work Commission will grant an extension of time for the filing of an unfair dismissal case is difficult, when it should not be, because of the inconsistencies of the Commission decisions on the issue together with the reluctance of the Full Benches to intervene on appeal because of the so-called discretion of the Commission at first instance. Here however is  an extract from a recent decision which, with respect, contains a good analysis of the most important principles.

The merits of the application

For the purpose of determining whether to grant an extension of time for Mr Prasad to file his application, the Commission does not require a detailed consideration of the substantive case. In Kyvelos v Champion Socks Pty Limited 2, the Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 said:

[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application …

In Damien Haining v Deputy President Drake & Ors 3 the Full Court of the Federal Court said:

‘At the end of the day, the person exercising the discretion has to make an overall judgment as to the appropriateness of extending the time. The extent and the cause of the delay will usually be factors relevant to that judgment; so also will other matters included in the summary, to the extent they apply to the instant case; and perhaps other matters as well. The acceptability of the applicant’s explanation for delay cannot be divorced from the effect of that delay on the respondent or other people. If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.’ (emphasis added)

……………………..Consideration

In Stogiannidis v Victorian Frozen Foods Distributors P/L 6, the Full Bench said:

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] … each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and

Having considered all of the matters to which my attention is directed by the Act, I am satisfied that there are exceptional circumstances which would warrant my granting an extension of time. In this case it is a combination of Mr Prasad’s circumstances that support such a finding. Mr Prasad had over 25 years of service with Cordina. The delay is a relatively short period of seven days. There is a lack of prejudice to Cordina. While the evidence as to merits is limited, on the facts not in contest which are set out above, I am satisfied that Mr Prasad has a prima facie case that his dismissal was unfair.”

Prasad v Cordina Chicken Farms Pty Ltd (2019) FWC 4867 delivered 19 July 2019 per Dean DP