The recent Fair Work Commission decision of Christopher Benetti v Fortsecue Metal Groups Limited  FWC 8488 illustrates the strict interpretation by the Fair Work Commission in granting an extension of time to an unfair dismissal claim over 21 days.
Mr Benetti was an employee of Fortescue Metal Group Limited (FMG) who was dismissed after failing to board a flight to his remote workplace having been given a previous warning regarding his behaviour.
The dismissal was confirmed in writing to Mr Benetti together with FMG’s obligation to provide 3 weeks payment in lieu of notice.
An application was lodged under s 394 of the Fair Work Act 2009 however, FMG responded claiming that the application was lodged out of the 21 day time limit.
The Commissioner found the application was made 24 days after the date of termination. Mr Benetti claimed he did not understand the meaning of the given information and confirmed he had not taken steps to contest the dismissal apart from lodging the application.
The key issue before the Commissioner was whether this amounted to an exceptional circumstance under s 394 (3) of the Fair Work Act taking into account:
- The reason for the delay; and
- Whether the person first became aware of the dismissal after it had taken effect; and
- Any action taken by the person to dispute the dismissal; and
- Prejudice to the employer (including prejudice caused by the delay) and
- The merits of the application; and
- Fairness as between the person and other persons in a similar position.
The Commissioner was unable to accept Mr Benetti’s proposition that he was unaware that his employment had terminated and had mistakenly believed that termination took place at the end of the 3 week notice period.
In considering whether this current situation was an exceptional circumstance, the Commissioner referred to Cheval Properties Pty Ltd v Smithers  FWAFB 7251 where the full bench of the Fair Work Act held the word ‘exceptional’ was interpreted as ‘forming an exception or unusual instance, unusual and extraordinary’.
In Griffith v The Queen (1989) 167 CLF 372, Brennan and Dawson JJ (at 379) regarded that a combination of factors could amount to exceptional circumstances, despite no one factor being exceptional. The Commissioner held that the meaning of exceptional was a combination of factors, that when viewed together may be seen as producing a situation which is out of the ordinary course or uncommon.
Further, the Commissioner referred to R v Kelly (Edward)  QB 198 at 208; where Lord Bingham construed that exceptional ‘need not be unique, unprecedented or very rare, but it cannot be one that is regularly or routinely or normally encountered’.
In summary, the Commissioner was neither satisfied of the merits of the application, nor was he satisfied that the reason given demonstrated an exceptional circumstance to grant an extension of time.
This decision demonstrates the strict approach by the Fair Work Commission to grant an extension of time for an overdue unfair dismissal claim.
Exceptional circumstances under s 394 (3) are construed narrowly and parties in this situation bear the onus of proving strong merits of their case and the lengths which they have gone to contest the dismissal in the time period.