Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - whether earlier unfair dismissal Form F2 filed in error - no error - general protections application filed out of time -circumstances not exceptional - application dismissed.

[1] Ms Gibbons (Applicant) alleges that Advan Pty Ltd (Respondent) contravened the 'general protections' provisions of the Fair Work Act 2009 (Act). On its face, her application (the Application) was out of time. However, her application followed an earlier application (within time) for an unfair dismissal remedy. This decision addresses two matters:

• First, did the Applicant file her unfair dismissal application "in error", such that her application under s.365 was within time; and, if necessary
• If her general protections dispute was filed outside of the 21-day time frame, should the Applicant be granted an extension of time to make that application?

[2] Upon the matter being allocated to me, I issued directions for the filing of evidence and submissions. After conferring with the parties, I resolved to conduct the matter by way of a determinative conference. I also granted the Respondent permission to be represented, being satisfied that there was sufficient factual and legal complexity that a practitioner would assist in the more efficient conduct of the matter.

[3] The Applicant filed a witness statement with supporting documents, and a statutory declaration, in addition to her 'Form F8' application. She was cross-examined. The Respondent called no witnesses but relied on an outline of submissions it filed. In addition to these items, and prior to the hearing, I also sent to the parties various documents in the Commission's record's regarding the Applicant's unfair dismissal application. I refer to these documents below.

Was the application made within time - the "error"?

[4] The Applicant states in her witness statement that the date of dismissal was 30 November 2022. The Respondent did not challenge that date and I am satisfied it reflects the day the Applicant was notified that her employment was terminated.

[5] On 20 December 2022, the Applicant made an application for an unfair dismissal remedy, by filing a Form F2. That application was made within time.

[6] In Hambridge v Spotless Facilities Services Pty Ltd [2017] FWCFB 2811 (Hambridge), the Full Bench considered circumstances where the applicant filed a wrong form by mistake. Mr Hambridge intended to make an unfair dismissal application but instead he erroneously made his application using the form for a general protections application, which was the wrong form. There was a factual finding of error at first instance and undisturbed on appeal.

[7] I respectfully agree with the Full Bench's observation that:

"Mr Hambridge's error in using the wrong form for his first application, in non-compliance with s.585, could have been dealt with in any one of three ways: by correction, amendment or waiver by the Commission under s.586, by dismissal of the application under s.587(1)(a), or by Mr Hambridge discontinuing the application under s.588."[1]

1. By contrast, where there is no error, it would not be appropriate (or permissible) to allow s.586 to 'convert' what was in truth an unfair dismissal application to an application of a "fundamentally different" character, namely a general protections application: Ioannou v Northern Belting Services Pty Ltd (Ioannou).[2]

[9] In the case before me, Ms Gibbons' initiating application (to use a neutral term) filed on 20 December 2022 was a Form F2 "Unfair Dismissal Application". Her application was completed by hand in hard copy, which she signed and dated on 20 December 2022.

[10] The allegations against the Respondent in the Form F2 were not extensively detailed. I do not consider that the nature of the allegations point clearly to an intention to file an unfair dismissal application, as opposed to a general protections claim. For example, in the section of the form where she was asked to explain why the dismissal was unfair, Ms Gibbons refers (among other matters) to her dismissal arising because (on her account) the employer said "I was unreliable when I was sick and couldn't come to work." At least conceptually, that is an allegation capable of being reflected in an adverse action pleading in a general protections claim.

[11] However, factors telling in favour of the fact that Ms Gibbons intended to - and did - make an unfair dismissal application is the fact that she used the form for unfair dismissal. This is not a flippant observation of the obvious, but the form submitted by Ms Gibbons was clearly labelled "Form F2 - Unfair dismissal application".

[12] The cover sheet to the Form F2 (which was not included in the document lodged by Ms Gibbons but is part of the form that an applicant must download before filing) is headed "About the F2 application" and then immediately "Unfair dismissal application". It then provides the following information:

To make an unfair dismissal application to the Fair Work Commission (the Commission), you must be covered by the national unfair dismissal laws and must be eligible to make an application.

To be eligible to make an application, you must have worked for the minimum employment period and, in some cases, have earned less than the high income threshold.

When you make your application, you will need to show that:

• you were an employee covered by the national unfair dismissal laws and
• you are eligible to make an application and
• you have been dismissed and
• the dismissal was harsh, unjust or unreasonable.

A dismissal will not be unfair if it was a case of genuine redundancy, or if the employer was a small business (employing fewer than 15 people) and the employer complied with the Small Business Fair Dismissal Code.

For more information about unfair dismissals and eligibility to make an application see the Commission's unfair dismissal guides and Unfair Dismissal Benchbook.

• were an employee covered by the national unfair dismissal laws and
• are eligible to make an unfair dismissal application and
• believe you have been unfairly dismissed."

[13] Ms Gibbons could not specifically recall the cover sheet but says that, after downloading the form from the Commission's website, she printed off the pages she needed. She accepts she would have read the form first to determine which pages needed printing. I am satisfied that Ms Gibbons downloaded the form (with cover sheet) and had an opportunity to read it and, at the time, did read it at least for the purpose of determining if she needed to print it or not.

[14] Section 1.7 of the Form F2 asked as follows, and included an explanatory note (original emphasis):

"1.7 Have you made another claim to the Commission or to any other organisation regarding your dismissal (eg a general protections application)?

The Commission cannot consider your unfair dismissal application if you have made another claim in relation to the dismissal, for example if you have made a general protections application in relation to the dismissal or a complaint to the Human Rights Commission in relation to the dismissal. If you answer yes to this question, you will need to decide which claim is the most appropriate one. If you are unsure which is the best option for you, read the where to get help section in the cover sheet of this form."

[15] The above section has a checkbox option for Yes or No. Ms Gibbons hand-checked the option 'No'. Ms Gibbons cannot now specifically recall that section of the form. However, I am satisfied that she read it at the time and checked the form 'no' based upon what she read.

[16] Ms Gibbons submitted her Form F2 by email at 10.57pm on 20 December 2022. At the time she filed that application, Ms Gibbons confirmed in cross-examination that she was not aware that an unfair dismissal application would most likely be barred by the "minimum employment period" requirement in ss.382(a) and 383 of the Act. She also did not conduct any research before filing her unfair dismissal application but believed that her dismissal met the criteria of an unfair dismissal.

[17] On 29 December 2022, Ms Gibbons was contacted by the Commission registry. There was a text message, a telephone call attempt and an email with a letter. The letter stated that Ms Gibbons may not have worked the minimum employment period. It also stated: "To continue with your case, you need to show that you worked for the minimum employment period."

[18] Ms Gibbons then called the Commission on the number provided. According to Ms Gibbons, she was "advised" to commence a general protections claim (which did not have a minimum employment period threshold requirement). She then promptly filed a Form F8A application for a general protections claim that day.

[19] On 5 January 2023, Ms Gibbons was again contacted by Commission registry staff, who indicated that she could not proceed with both her unfair dismissal application and her general protections claim. Shortly after on the same day, Ms Gibbons discontinued her unfair dismissal application.

[20] Having regard to the above matters and having observed Ms Gibbons' evidence, I am not satisfied that, on 20 December 2022, she mistakenly used the Form F2 (for an unfair dismissal application) when intending to make a general protections claim.

[21] I am not satisfied I should depart from the objective evidence, as reflected in her Form F2, specifically at 1.7. To Ms Gibbons' credit, I did not understand her to urge me to find otherwise.

[22] I consider that the closest the evidence could satisfy me that there was an error of that nature was that, at the time Ms Gibbons filed the Form F2, she was unaware of the minimum employment period requirement for an unfair dismissal application and, had she been aware that she was unlikely to comply with it, she probably would have filed a general protections claim at the time.

[23] However, she believed that her dismissal met the criteria of an unfair dismissal and she was seeking to challenge that dismissal on that basis. I find that the state of awareness I have just described was operative throughout the 21-day period following her dismissal, and then also up until when contacted by the Commission on 29 December 2022.

Was the application made within such further period as the Commission allows?

[24] On this basis the Application should have been filed by 21 December 2022 and was, in the circumstances, approximately 8 days late.

[25] Under s.366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

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

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

(e) fairness as between the Applicant and other persons in a similar position.

• [26] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3] I set out my consideration of each matter below.

• [27] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by 21 December 2022. The delay is the period commencing immediately after that time until the date the current application was lodged on 29 December 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

• [28] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]

• [29] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]

[30] I have described the circumstances explaining the delay in the section above regarding "error". I find that the reason for delay was because the Applicant had made an application for an unfair dismissal remedy and, until she realised that application was likely to fail (due to the minimum employment period requirement), she was content to proceed with that application to challenge her dismissal.

[31] While I have also found that the Applicant did not specifically turn her mind to the differences between an unfair dismissal claim and a general protections claim, she at least appeared to recognise (as her Form F2 attested) that she could not make an unfair dismissal claim and a general protections claim at the same time. She chose the former.

[32] Having decided to challenge her dismissal, the Applicant was faced with a potential choice when deciding which remedy for a dismissal she wanted to pursue. This is not uncommon. By s.725 of the Act, a person "must not" make an application or complaint of a kind in any one of ss.726 to 732 in relation to the dismissal if any of those other sections apply.

• [33] The statutory scheme means an "employee is faced with an election"[7] in choosing which action to pursue. The choice must be made even if the employee does not fully understand or appreciate the differences between the various types of claim that could potentially be made.

[34] Section 727 addresses "general protections FWC applications", which is an application under s.365. Section 729 addresses an "unfair dismissal application". Suffice to say, until the Applicant's unfair dismissal application was "withdrawn" or "failed for want of jurisdiction" (s.729(1)(b)(i) - (ii)), the Applicant was prohibited from subsequently pursuing an application under s.365.

[35] Regardless of the mandatory effect that s.725 had on the Applicant's ability to pursue a general protections action while the unfair dismissal action was on foot, it is clear that the Applicant was willing for her unfair dismissal action to be the vehicle in which the core relief she was seeking would be pursued.

Section 366(2)(b) - action taken by the Applicant to dispute the dismissal

• [36] Where an Applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[8]

[37] The Applicant commenced an unfair dismissal action and did so within time. I am satisfied that she had taken action to dispute her dismissal, although her challenge was not (until 29 December 2022) reliant on the general protections provisions of the Act.

Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)

[38] In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.

Section 366(2)(d) - the merits of the application

[39] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.

• [40] It is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)"[9]. With that having been noted, the Applicant's claim is expressed at a high level of generality and it would appear that significant work would be required for it to clearly conform with, or at least articulate, a general protections claim. While those steps might be capable of being addressed in the future, the initial picture is not compelling.

[41] I consider that the merits of the Application tend against a finding of 'exceptional circumstances' although, noting that the Applicant is unrepresented and the early stage of her claim, it is not a matter I place great weight upon.

Section 366(2)(e) - fairness as between the Applicant and other persons in a similar position

[42] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[43] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [44] 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 nor unprecedented, nor even very rare.[10] Exceptional circumstances may 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 can be considered exceptional.[11]

[45] The delay in the present case was 8 days, being a delay comfortably beyond the 21-day requirement. The reason for the delay is, at its heart, due to a belated realisation that the Applicant's unfair dismissal claim was likely to fail because of a jurisdictional requirement. That itself is not exceptional nor, in my view, even particularly remarkable. There are many cases run before the Commission where a dismissal claim fails for a jurisdictional issue but this does not mean that an applicant can commence a different claim on the basis that, had they have known of the jurisdictional difficulties earlier, a different approach would have been taken. Where an applicant seeks to do so, he or she will have to establish 'exceptional circumstances' (in the case of a belated unfair dismissal application or belated general protections claim).

[46] The Applicant's initial challenge to her dismissal is a factor that points slightly in her favour, although it is not a factor that I consider exceptional, whether on its own or with any other factor. I similarly do not consider that the merits of the Application point to a finding of exceptional circumstances, even if this was a factor I was prepared to treat neutrally between the parties. The factors concerning prejudice and fairness between other persons are neutral considerations.

[47] Having regard to all of the matters listed at s.366(2) of the Act, I am not satisfied that there are exceptional circumstances.

• [48] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant's application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[12] to this effect will be issued in conjunction with this decision.

1. [1] Hambridge, [31].
2. [2] [2014] FWCFB 6660 at [22]; see also Hambridge at [32] - [33].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[7] Cook v Australian Postal Corporation [2018] FCA 81 at [76].

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[12] PR760448

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