FWA Rules “exceptional” Doesn’t Have To Be Rare
24 March 2010
Fair Work Australia (FWA) has ruled that a worker, who brought his unfair dismissal claim late because his attempts to file through the FWA website failed, qualified for the “exceptional circumstances” test for granting an extension of time under s 394(3) of the Fair Work Act 2009 (FW Act).
The worker was dismissed for poor performance on 26 October 2009 and his 14-day period for bringing an unfair dismissal claim ended on 9 November 2009. FWA received his application four days out of time on 13 November. The worker had received initial advice that he had 21 days to bring an unfair dismissal claim. He later found this was incorrect and that he only had 14 days.
On the weekend before the expiration of this period, the worker tried to file his claim through FWA’s website but could not. He sent his claim by post the following Monday, the final day of his 14-day window, and it was received late.
The worker brought a claim for an extension of time and FWA noted that he had made a legitimate attempt to bring his claim within the 14-day period but had been thwarted. FWA ruled that this constituted “exceptional circumstances” within s 394(3) of the FW Act. In doing so, FWA noted that there had only been two judgments to date which looked at “exceptional circumstances”.
In Shields v Warringarri Aboriginal Corporation, FWA ruled that extensions should only be granted “in rare cases”. However, in Parker v Department of Human Services it had cited the decision of Branson J in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd, who ruled that: “To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” FWA preferred the second of these definitions on the basis that it captured the ordinary english meaning of the word.
FWA ruled that the worker’s failure to lodge his application in time was due to circumstances outside of his control and that this was exceptional under its preferred definition. It also noted that it was not satisfied that the worker’s circumstances were unexceptional simply because he could have filed by telephone within the time limit.
Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Machinery  FWA 1394 (25 February 2010).