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Is a divorce an ‘exceptional circumstance’ in a late dismissal application?

The Fair Work Commission (FWC) recently dealt with a worker’s request for an extension for his delayed dismissal claim after arguing that he was going through a “fresh divorce,” as well as other technical issues.

Brett Martin started his employment with Alpha Hr Pty Ltd on 4 March 2021 and was notified of his dismissal on 9 June 2023. The dismissal was effective on the same day.

The worker filed his application on 1 July 2023. The application was lodged one day outside the statutory time limit.

The Fair Work Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect.

The FWC allows a degree of leniency. It said that any application filed beyond the said period must be proven to be an “exceptional circumstance.”

What is the nature of an ‘exceptional circumstance’?

In this case, the Commission explained that “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,” the FWC said.

“[These] 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. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be.”

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“Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon,” the Commission noted.

‘Going through a fresh divorce’

When asked about his circumstances, the worker submitted the following:

“I’m responding for leniency on the late reply to my unfair dismissal at Alpha Car Hire. I’m currently going through a fresh divorce which has heightened my mental health 100%.”

“Each day is a massive challenge leaving me not knowing what to do some days. This unfair dismissal has demeaned my self-worth and completely ravaged my reputation in the community.”

“Conclusion: On my behalf, there was certainly no ignorance of the timeframe purely a miss judgement in my life at the moment also finding the money to pay and not having the relevant program on my laptop that the Fair Work Commission needed for me to upload documents. I genuinely hope you allow this to see the justice it deserves. I’m at a breaking point,” the worker said.

Technical problems

According to records, in the hearing, the worker said that he did not have access to a computer and was going through a divorce.

He said that he was aware of the unfair dismissal process four days within the 21-day timeline and had tried to contact 11 companies regarding unfair dismissal but did not accept his matter because of issues surrounding sexual harassment.

The worker showed proof of the call logs and identified the entities he contacted. The call logs indicate that he did contact for legal assistance to at least 5 different firms on 14 June 2023 for assistance.

He also said that his phone was cut off as he did not have enough money for the phone bill and did not have access to a laptop. He said that he was aiming to complete the application as soon as possible once he was able to obtain help from his friend, who said the worker “had extreme depression in filling out his application.”

Should the late claim be accepted?

The Commission noted that the worker’s application was only a day late, saying that: “Considering the Applicant had filed the application 1 day out of time and had endeavoured to get it within the 21-daytime frame taking into account his circumstances, this consideration does weigh in favour of granting an extension of time.”

Ultimately, the FWC said that “there are exceptional circumstances in considering the above factors,” and so, it allowed the extension of the worker’s application.

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