Greater than the sum of its parts – an excerpt on exceptional circumstances

In brief 2 min read

The Fair Work Commission (FWC) has confirmed that the convergence of a series of ordinary events can give rise to 'exceptional circumstances' within the meaning of section 366 of the Fair Work Act 2009 (Cth) (Act).

How does it affect you

When considering whether to exercise its discretion to allow an employee further time to make a general protections application, the FWC will take into account:

• the reason for the delay;
• action taken by the employee to dispute the dismissal;
• prejudice to the employer;
• the merits of the application; and
• fairness as between the employee and other persons in a like position.

A combination of factors that are insignificant on their own may be exceptional when viewed collectively. This means that, together, common occurrences may amount to exceptional circumstances for the purpose of s366 of the Act.

Background

Section 366 of the Act requires a general protections application to be made within 21 days after the dismissal took effect.

On 26 December 2019, 23 days after her dismissal took effect, Ms Amy Tickle lodged a general protections application against Tricare Labrador Aged Care Pty Ltd.

Ms Tickle gave several reasons for her late application:

• she suffers from bipolar disorder, and her usual treatment was disrupted causing her symptoms to escalate;
• her dismissal occurred on the anniversary of her mother's death;
• she was preparing to move house;
• the final day for lodging her application was Christmas Eve; and
• she had spent a considerable amount of time attempting to contest, or at least clarify, the reasons for her dismissal with Tricare prior to the statutory deadline.

Decision

The FWC decided there were exceptional circumstances in this case and granted Ms Tickle an extension of time to file her application. While none of the reasons were unusual or uncommon in their own right, it was the totality of the factors occurring simultaneously that the FWC held to be 'out of the ordinary' and amounting to exceptional circumstances. Ms Tickle's constant and consistent effort to contest her dismissal, and the lack of prejudice to the employer caused by the two-day delay in filing the application, were also key considerations in the FWC's decision.