In this matter, the Fair Work Commission granted a one day extension for lodgement of an application for an unfair dismissal remedy on the basis that the applicant’s technological issues amounted to an exceptional circumstance warranting the extension.
The applicant, Mr James Wolfgang, was dismissed by the respondent on 14 April 2016. Mr Wolfgang prepared his unfair dismissal application in accordance with section 394 of the Fair Work Act 2009 (Cth) (“the Act”) and attempted to lodge it online on 5 May 2016 (the very last day of his 21 day statutory time limitation as per the Act). The application itself included the required form F2 as well as 9 attachments.
At the time of lodgement, the applicant believed that all documents had been successfully uploaded via the FWC online lodgement page. It wasn’t until the next day, 6 May 2016, that the applicant received a phone call from an FWC representative advising him that lodgement of the application had failed.
As soon as he had been advised of the malfunction, the applicant immediately went home to re-attempt lodgement. Lodgement on this occasion was successful, however it was 1 day late.
The applicant further noted that his reason for submitting the application on the very last day of the 21 day statutory time limitation was because of the significant care and detail he had undertaken in compiling his case and relevant evidence.
In making his decision, Senior Deputy President Drake requested that the applicant provide a statement addressing the matters to be considered when granting an extension of time in accordance with the Act. It was in this response that the applicant explained the circumstances that lead to his late lodgement, including his initial belief that the application had been properly lodged within the time limit.
After receiving the applicant’s statement, Senior Deputy President Drake allowed the respondent to provide a submission in opposition to the proposed extension. The respondent argued that the one day extension should not be granted on the following grounds:
- The applicant’s circumstances for delay did not amount to “exceptional circumstances” under s 394 of the Act. Representative for the respondent stated,
“The cases are clear that circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Boeing submits that errors with uploading of documents are routinely encountered and not special.”
- The applicant knowingly had the full 21 days available to him to lodge the application;
- The applicant was not represented and therefore could not blame the error on his representative;
- There was otherwise no substantive merit to the application.
Senior Deputy President Drake rejected these submissions and went on to examine the legislative framework set out in section 394(3) for exercising the FWC’s discretion to grant an extension of this kind, and what constitutes “exceptional circumstances”.
His Honour cited the Full Bench in Nulty v Blue Star Group Pty Ltd  FWAFB 975. Notably, the Full Bench drew the following conclusion regarding “exceptional circumstances” [at 13]:
“In summary, 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. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.”
Having been also satisfied that each of the factors in s394(3) were appropriately met, in particular, that the applicant’s technological difficulties were out of the ordinary, unusual or uncommon, and that there were no greater prejudice to the respondent should the extension be granted, Senior Deputy President Drake granted a one day extension in favour of the applicant.
This case serves as an important reminder that statutory time limitations are strictly observed by the FWC, and that extensions will not be granted without grounds of considerable merit. However, it is also reassuring to note that the FWC will take into consideration technological malfunctions, where the applicant has made a conceded effort to adhere to legislative provisions.