The Fair Work Commission (FWC) recently held that a general protections application submitted seven minutes late warranted an extension of time because of exceptional circumstances.

Background

Ms Santina Volpe lodged an out-of-time application with the FWC alleging that her dismissal by Virgin Australia Airlines Pty Ltd (Virgin) was in breach of general protections provisions in the FW Act.

The Applicant offered four reasons for the seven-minute delay in lodging her application:

• First, the Applicant was unsure about whether to make an unfair dismissal or general protections application and needed to research how to complete her application, causing delay (the first reason).

• Second, the Applicant experienced distress as a result of receiving her dismissal letter from Virgin, and claimed that losing her job was equivalent to losing a part of her identity, self worth and independence (the second reason).

• Third, the Applicant provided a letter from her treating psychologist claiming that the circumstances aggravated her bipolar disorder and borderline personality disorder which then caused her to miscalculate the application deadline (the third reason).

• Last, the Applicant claimed her de-facto partner was emotionally abusive and made her feel like a ‘prisoner in her own home’. She claimed her partner only allowed her time on the computer in the late evening when her children were asleep. Ms Volpe further claimed she was unable to think logically, given her psychological state of mind and that she was receiving abusive messages during the relevant period (the fourth reason).

Virgin opposed the application for an extension of time, arguing that medical conditions such as those experienced by Ms Volpe were not unusual and that distress was not unusual in circumstances of dismissal.

Finding

Deputy President Lake reiterated that the ‘exceptional circumstances’ requirement in section 366(2) of the FW Act establishes a high bar. The Deputy President cited the case of Nulty v Blue Star Group Pty Ltd, in which the phrase ‘exceptional circumstances’ was defined to have its ordinary meaning and required consideration of all circumstances. Key observations regarding exceptional circumstances included the following:

• Exceptional circumstances must be out of the ordinary course, or unusual, special, or uncommon but they do not need to be unique, unprecedented, or very rare.

• Circumstances will not be exceptional if they are regularly, routinely, or normally encountered.

• Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, taken together, are exceptional.

The FWC confirmed that the relevant period of the delay requiring explanation is that commencing immediately after time to lodge the application expires and ending on the day the application is lodged. Also relevant are circumstances occurring from the date the dismissal took effect.

In reaching a decision, the Deputy President held that Ms Volpe’s first three reasons were not exceptional, taken alone or together. The FWC doubted the ability of the psychologist to accurately determine Ms Volpe’s state of mind given that the letter from the psychologist was sent more than one month after the dismissal.

The Deputy President accepted Ms Volpe’s evidence regarding the fourth reason and held that this established exceptional circumstances. The FWC found that the other factors weighed neutrally, except that Ms Volpe did not dispute her dismissal, and granted an extension of time. 

Lessons for employers

• A high bar remains for employees to establish exceptional circumstances regarding out-of-time applications under the FW Act.

• Uncertainty and general distress due to being dismissed will not establish exceptional circumstances.

• Evidence of mental health impairment as a reason for delay will be scrutinised.

• Letters or reports from treating health professionals must be contemporaneous with the relevant period to lodge an application under the FW Act.

• Domestic violence is an exceptional circumstance that can justify granting an extension of time.

For more information please contact:

Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au

Stephan Hill 
Lawyer
T +61 9611 0165
E shill@sladen.com.au