Fair Work Act 2009

s.365 - General protections

Application to deal with a general protections dispute involving dismissal; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to allow a further period within which application may be made should be exercised; extension of time granted.

[1] On 17 August 2018, Mr Andrew Green (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant said that he commenced employment with Bilco Group Pty Ltd (the Respondent) on 5 March 2018 and his employment had been terminated by the Respondent on 21 July 2018.[1]

[2] On 25 October 2018, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge his application. I have determined that the Applicant should be allowed a further period within which to lodge his application. These are the reasons for that decision.

[3] General protections applications involving dismissal must be made within 21 days after a dismissal took effect or in such further time as the Fair Work Commission (Commission) may allow.[2] As the dismissal took effect on 21 July 2018, an application for a remedy should have been lodged by no later than 11 August 2018. The application was therefore lodged outside of the time prescribed and was, in effect, lodged 7 days after the last day on which such an application could have been made.

[4] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are contained in s.366(2) of the Act:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

[5] It is clear from the structure of s.366(2) that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[6] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) that there are exceptional circumstances.

[7] I will turn then to the particular matters to which regard must be had.

[8] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay, will usually weigh against an Applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the Applicant's favour, though it is ultimately a question of degree and insight. Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[3]

[9] The Applicant addressed the reason for delay in his submissions as follows:

"1. I had initially filed an unfair dismissal claim well within the required 21 day period.

2. At that time I had not consider filing a claim under General Protections Rules believing that the one claim, in my case would be no different from the other in spirit.

3. I had requested the commission consider in discretion the fact that my employment fell short of the 6 month qualifying period for a casual employee to lodge a claim by only a few weeks.

4. This request was denied, respectfully, as the commission had no jurisdiction to continue.

5. On seeking further legal advice regarding the general Protections claim via the contacts supplied by the commission, it was indicated that the same qualifying period would apply to either application, so, with respect, I gave up attempting to seek just intervention via the commission.

6. It was not until 12:12pm on the 14th of August, when contacted by the commission regarding discontinuance of the unfair dismissal claim, that I was informed that in fact the 6 month qualifying period that denied the initial unfair dismissal claim, factually did not apply to a General Protections claim.

7. With this new information, I immediately discontinued the Unfair dismissal claim and now wish to lodge this claim under General Protection Rules

8. The content and substance of either claim, remains the same, I have been unfairly treated and suffer unjustly because of the action taken by my ex employer BILCO.[sic]"[4]

[10] The Commission's records reflect that on 3 August 2018, the Applicant lodged an unfair dismissal application pursuant to s.394 of the Act (UD Application). The UD Application was lodged just 13 days after the Applicant's dismissal. Following the receipt of the UD Application staff of the Commission sent the Applicant a letter explaining that his application indicated that he had not been employed for the minimum employment period required under the Act. The letter said that based on the information he had provided, the Commission did not have jurisdiction to deal with his application. The letter also attached contact details for Community Legal Centres should the Applicant wish to obtain legal advice. This letter was sent by both email and post on 3 August 2018.[5]

[11] On 6 August 2018, staff of the Commission received email correspondence from the Applicant regarding his UD Application. In the email the Applicant asked "does the [Commission] have any discretionary powers to allow the claim to proceed, if the 6 month period is not satisfied in full".[6] On the same day, staff of the Commission attempted to contact the Applicant by telephone to discuss the email, however the Applicant did not answer and there was no option to leave a voicemail message. Staff of the Commission then sent an email advising the Applicant that the Commission does not have any discretion regarding the minimum employment period. Further, it said that if an employee cannot show they have satisfied the minimum employment period, the application will be dismissed as the Commission has no jurisdiction to proceed.[7] No response was received to this email.

[12] On 14 August 2018, staff of the Commission contacted the Applicant by telephone to discuss his UD Application, confirming that unless the Applicant believed he had an argument that may extend the employment period beyond six months, the Commission would not have jurisdiction to hear the matter. The Commission's records show that the Applicant requested to discontinue his UD application and asked whether a general protections application had a minimum employment period requirement. Staff of the Commission confirmed that general protections applications do not have a minimum employment period, however the Applicant was advised that the dismissal must infringe the general protections provisions of the Act. The Applicant said that he intended to make general protections application and he was advised that his application would be out of time and that he would need to establish exceptional circumstances to obtain an extension of time.[8]

[13] The Applicant subsequently lodged his general protections application on 17 August 2018. It is worth noting that the Applicant lodged his general protections application by post and this caused further delay in its lodgment. The post mark on the envelope confirmed that the application was received by the postal service on 15 August 2018 (5 days out of time), however it was not received by the Commission until 17 August 2018.[9]

[14] On review of the two applications, they are substantially the same in content. The Applicant has provided the same 22 page annexure that details the merits of his application with only minor amendments which go to the change of application type and the addition of one further paragraph relating to what the Applicant says are further pay issues with the Respondent.[10]

[15] As to the Applicant's contention that he sought further legal advice regarding a general protections claim from the contacts supplied by the Commission, and was told that the same qualifying period would apply to either application[11], the Applicant has not provided any evidence beyond his assertion to support this contention and he could not recall which organisation he contacted, when he had made contact nor could he identify the person with whom he had spoken.

[16] At the hearing the Applicant said that he may have contacted the Employment Law Centre of Western Australia[12], but the Applicant conceded that he may have misunderstood the advice he received.[13] On the basis of the material before me I am not persuaded that there has been anything akin to representational error for the purposes of providing an explanation for the delay. However, the Applicant stated that he was not relying solely on representative error in his request for an extension of time.[14]

[17] The differences between an unfair dismissal remedy application and an application for the Commission to deal with a dismissal related general protections dispute may, it must be acknowledged, confuse an unrepresented person seeking to dispute a dismissal. The Applicant acted promptly in challenging his dismissal by lodging an application he was not entitled to make. Thereafter he sought some advice and following consultation with staff of the Commission, he acted reasonably promptly to lodge the application subject of this decision. This is not a case where the Applicant sought to test the jurisdictional limits of his UD application. Rather, once he was advised that his UD application was beyond jurisdiction he took steps to discontinue that application and to make an appropriate application. The UD application in substance alleged a breach of the general protections provisions of the Act. The delay in bringing this application was principally because the Applicant made the wrong application in respect of that which was in substance the same complaint. Whilst the period of delay would have been shorter had the Applicant made the general protections application by email instead of post, he nonetheless acted promptly once told that the UD application was beyond jurisdiction. In the circumstances I am persuaded there is an acceptable explanation for the delay and this weighs in the Applicant's favour.

Action taken by the person to dispute the dismissal

[18] Turning next to the question of the action taken by the Applicant to dispute his dismissal. The Applicant submits that in addition to lodging his UD application on 3 August 2018, he also attempted to immediately dispute his dismissal.[15] The Applicant says that on the "brief" telephone call with the Respondent during which he was dismissed, he attempted to dispute the dismissal, but he says he "argued [the] facts to no avail".[16] He said that following this, the Respondent refused to engage in any further conversation regarding the dismissal.[17] This is further supposed by the Respondent's submission that the Applicant attempted to dispute his dismissal through "phone calls, abusive email and texts".[18] I accept the Applicant took steps to dispute his dismissal before making this application.

[19] That he did so, weighs in his favour.

[20] The Applicant submits that the Respondent has in no way been prejudiced by his application being filed late because it was aware that he intended to file a claim from as early as 21 July 2018.[19] The Applicant said that on 21 July 2018 he advised the Respondent that he would be seeking the intervention of the Commission.[20] Further, the Applicant provided copy of a text message sent to the Respondent on 21 July 2018 at 12.15pm following the dismissal phone call stating:

"That's completely wrong Dean and I will be filing an unfair dismissal claim"[21]

[21] It is noted that the Respondent did not receive the Applicant's UD Application filed on 3 August 2018 because it had not been served by the staff of the Commission. As the Applicant did not meet the minimum requirements to make the application, the staff of the Commission sought to contact the Applicant prior to the application being served on the Respondent. The Applicant subsequently discontinued his UD application prior to the Respondent receiving any notification of it. At the hearing the Respondent confirmed that it never received the UD Application.[22]

[22] In any event, the period of delay is short and the Respondent was on notice of a prospective claim on the date of the Applicant's dismissal. Further, the Respondent does not contend there is any prejudice and says the application has not caused any disadvantage or unfairness to the business.[23] I consider this to weigh in favour of the Applicant.

[23] The Applicant submits that he was dismissed in contravention of s.340 of the Act[24]:

(1) A person must not take adverse action against another person:

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4-1)."

[24] The Applicant submits that the Respondent dismissed him because he made numerous enquiries regarding his pay and other operational and safety issues "thus making [him] a liability"[25]. Furthermore, the Applicant says that the Respondent's claim that he was dismissed due to his conduct during an argument with a colleague on 19 May 2018 is false.[26]

[25] The Applicant contends that on 19 July 2018, he had an argument with the Respondent's administration officer regarding his pay. He says that this was one of a number of enquiries he had made regarding his pay, stating that it was often paid late or the amount was incorrect. The Applicant says when he made this enquiry, an argument ensued with between him and the administration officer and he was asked to leave the office. The Applicant says he then contacted the Respondent's general manager, Mr Dean Chappell, to advise him of the incident. He says he apologised for his actions and Mr Chappell warned him of the possible consequences of unprofessional conduct in the future.[27]

[26] The Applicant says that on 20 July 2018, he attended work without further issue and that it was a "regular non eventful day"[28]. The Applicant says that on 21 July 2018 he was due to depart the island where the worksite was located and the administration officer had contacted him via text message to confirm his ferry transfer.[29] At 7.48am she sent him a text message that read:

"Ferry tickets have been changed to 830am, time sheet has been changed to w e 22/07 47hrs-5 days meal allowance Have a great break ☺[sic]"[30]

[27] The Applicant says that on the same day, he received a message at 11.44am asking him to call Mr Chappell and when he did he was advised that his employment had been terminated. Following this call, the Applicant sent the Respondent the text message reproduced at [20] foreshadowing his UD application.[31]

[28] The Applicant contends that he had raised numerous other concerns throughout his employment with the Respondent, these issues included the lack of available tools and equipment, and the lack of clear safety or operational instructions regarding traffic control, smoking restrictions, unsafe equipment and paperwork deficiencies. The Applicant contends that these enquiries are the underlying reason for his dismissal.[32]

[29] The Respondent's response to the application is that the Applicant was dismissed for "[t]hreating and abusive language to management staff".[33] It says that it will not be retracting the allegations it made and that the Applicant had received verbal warnings relating to his conduct and attitude towards management on prior occasions.[34] Further, it says that there was no ongoing issue with pays and that any issues were rectified, with enquiries being handled in a timely manner.[35] At the hearing, the Respondent contended that the application has no merit, that the Applicant had been warned about his language, and that there were no issues with pay, further submitting that the Applicant may have been confused about his pay.[36]

[30] It is plain from the above there are disputed factual issues which will need to be resolved during a contested hearing. At this very early interlocutory stage is not appropriate to attempt to resolve those issues particularly as in this case neither party gave evidence. However it must be remembered that this is a general protections claim. In order to maintain such a claim the Applicant will need to show that adverse action was taken. There is no dispute that adverse action in the form of dismissal has been taken by the Respondent. The Applicant will also need to point relevantly to a workplace right that he has exercised. The Applicant maintains, and the Respondent does not dispute, that before his dismissal the Applicant made a complaint or enquiry in relation to his employment. The Applicant also alleges that the Respondent took the adverse action by dismissing him because or for reasons that included that he had made the complaint or enquiry. Assuming these things can be established at a trial the Respondent will be required to show that the reason alleged was not the reason for the dismissal. In these circumstances it cannot be said the application is without merit. It seems to me that there will be little difficulty in the Applicant establishing the elements of the contravention that he is required to establish. That is that there was adverse action taken, that he exercised a workplace right and that he alleges that adverse action was taken because he had exercised that workplace right. In these circumstances question of the merits of the application weigh in favour of the Applicant.

Fairness as between the person and another persons in a like position

[31] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission.

[32] Neither party made any material submission on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case. Consequently, this matter is a neutral consideration in the present circumstances.

[33] As is evident from the analysis above, the preponderance of matters that must be taken into account weigh in favour of a conclusion there are exceptional circumstances. None of the factors weigh against such a conclusion and one factor weighs neutrally. I am persuaded therefore that there are exceptional circumstances. The Respondent did not raise any issue which might persuade me not to exercise my discretion notwithstanding that I have concluded there are exceptional circumstances. Nor am I aware of any persuasive discretionary consideration which would warrant that conclusion.

[34] I therefore propose to allow the Applicant further period within which to lodge his application. The application may therefore be lodged by 17 August 2018.

[35] The application will be progressed by way of a conference at a time and date to be advised.

[1] Applicant's Form F8 - General Protections Application Involving Dismissal filed 17 August 2018; and Applicant's Outline of Argument: Extension of Time filed 25 September 2018.

[3] See Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[4] Applicant's Outline of Argument: Extension of Time filed 25 September 2018 at question 1d.

[5] Letter from the staff of Commission to the Applicant dated 3 August 2018.

[6] Email from the Applicant to the staff of the Commission dated 6 August 2018 received at 11.12am.

[7] Email from the staff of the Commission to the Applicant dated 6 August 2018 sent at 12.20pm.

[8] File note of Applicant's telephone conversation with a staff member of the Commission dated 14 August 2018, filed on 4 October 2018.

[9] Applicant's Form F8 - General Protections Application Involving Dismissal filed 17 August 2018.

[10] Applicant's Form F2 - Unfair Dismissal Application filed 3 August 2018; and Applicant's Form F8 - General Protections Application Involving Dismissal filed 17 August 2018.

[11] Applicant's Outline of Argument: Extension of Time filed 25 September 2018 at question 1d [5].

[12] Transcript of Proceedings dated 25 October 2018 at PN42.

[15] Transcript of Proceedings dated 25 October 2018 at PN121-125.

[16] Applicant's Outline of Argument: Extension of Time filed 25 September 2018 at question 1e [3].

[18] Respondent's Outline of Argument: Extension of Time filed 23 October 2018 at question 1e.

[19] Applicant's Outline of Argument: Extension of Time filed 25 September 2018 at question 1f.

[20] Transcript of Proceedings dated 25 October 2018 at PN136-139.

[21] Annexure to the Applicant's Form F8 - General Protections Application Involving Dismissal filed 17 August 2018, Annexure C - Text message from the Applicant to the Respondent on 21 July 2018 at 12.15pm.

[22] Transcript of Proceedings dated 25 October 2018 at PN128-133.

[23] Respondent's Outline of Argument: Extension of Time filed 23 October 2018 at question 1g.

[24] Applicant's Outline of Argument: Extension of Time filed 25 September 2018 at question 1h.

[27] Annexure to the Applicant's Form F8 - General Protections Application Involving Dismissal filed 17 August 2018, document titled "Work period and allegation".

[30] Annexure to the Applicant's Form F8 - General Protections Application Involving Dismissal filed 17 August 2018, Annexure B - Text message from Respondent's administration officer to the Applicant on 21 July 2018 at 7.48am.

[31] Annexure to the Applicant's Form F8 - General Protections Application Involving Dismissal filed 17 August 2018, Annexure C - Text message from the Applicant to the Respondent on 21 July 2018 at 12.15pm.

[32] Annexure to the Applicant's Form F8 - General Protections Application Involving Dismissal filed 17 August 2018, document titled "Work period and allegation"; and Applicant's Outline of Argument: Extension of Time filed 25 September 2018 at question 1h.

[33] Respondent's Form F8A - Response to General Protections Application at question 2.2.

[36] Transcript of Proceedings dated 25 October 2018 at PN155-156.

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