Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - application made out of time - request for an extension of time

[1] The Applicant alleged that the termination of his employment by the Respondent was in contravention of the general protections provisions under the Fair Work Act 2009 (Cth) (the Act).

[2] The Applicant's application to deal with contraventions involving dismissal (the Application) lodged on 16 January 2019 was not made within the requisite 21 days after the date of the dismissal.

[3] The Fair Work Commission (FWC) may allow a further period for lodging an application if it is satisfied that there are exceptional circumstances.

[4] In assessing whether there are exceptional circumstances the FWC must have regard to the matters under section 366(2) of the Act.

[5] Section 366(1) of the Act sets out that an application under section 365 (a general protections application) must be made:

"(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2)."

[6] Section 366(2) of the Act sets out the circumstances in which the FWC may grant an extension of time as follows:

"(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."

[7] The Full Bench of the then Fair Work Australia (FWAFB) in the matter of Nulty v Blue Star Group considered the meaning of exceptional circumstances as follows:

"the expression "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..."[1]

[8] Exceptional circumstances 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.[2]

[9] It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be.[3]

[10] The test of exceptional circumstances establishes a 'high hurdle' for an applicant to overcome for an extension to be granted.[4]

[11] A decision to extend time under section 366(2) involves the exercise of discretion by the FWC.[5]

[12] Whether exceptional circumstances exist requires consideration of all the relevant circumstances.[6] I will consider each of these matters in turn.

s.366(2)(a) - The reason for the delay

[13] On 3 October 2018 the Applicant was terminated by the Respondent.

[14] On 10 October 2018, within the relevant 21 day statutory time frame, the Applicant lodged an unfair dismissal application at the FWC.

[15] The Respondent submitted a jurisdictional objection to the Applicant's unfair dismissal application on the basis that the Respondent's business is a small business, and the dismissal was consistent with the Small Business Fair Dismissal Code.

[16] On 6 November 2018 a conciliation conference was conducted by a staff conciliator at the FWC with respect to the Applicant's unfair dismissal application. The matter did not settle.

[17] On 21 December 2018 a further conciliation conference was conducted by a member of the FWC. Again, the matter did not settle.

[18] During the course of the second conciliation conference convened on 21 December 2018 the Applicant submitted that he became aware that a general protections application was a more appropriate action to take against the Respondent given the jurisdictional objection.

[19] Following this conference the Applicant submitted that they immediately booked an appointment with a solicitor on the evening of 14 January 2019 for the purposes of filing a general protections application. The Applicant submitted that the earliest possible appointment that he could book with a solicitor as the solicitor's office was shut over the holiday period.

[20] Following a meeting with the Applicant's solicitor on 14 January 2019, the Applicant lodged the Application on 16 January 2019.

[21] At the time of filing the Application, the Applicant's unfair dismissal claim was still on foot. The Applicant discontinued his unfair dismissal application on 18 January 2019 after lodging the Application.

[22] The Applicant submitted that the reason for the delay in lodging the Application was that he filed the inappropriate application at first instance, which was done within the statutory time frame. Once he became aware of a more appropriate application, he sought legal advice as to how to lodge this application. Shortly after the obtaining this legal advice the Applicant filed the Application.

[23] The Applicant has an explanation for reasons for the delay during the entire period of the delay. With respect to allowing an extension of time this criterion weighs in the Applicant's favour.

s.366(2)(b) - Any action taken by the person to dispute the dismissal

[24] Action taken by an applicant to contest the termination, other than by virtue of the Application, will be relevant and may weigh in favour of granting an extension of time.[7]

[25] According to the Applicant at Hearing, the Applicant did dispute his dismissal at the time of termination.

[26] Within a week after the Applicant's dismissal, the Applicant lodged an unfair dismissal application. The Respondent was therefore aware that the Applicant disputed the termination and took action very shortly after the Applicant's last day of employment to formalise this dispute.

[27] Two conciliation conferences were conducted at the FWC on the basis of the Applicant disputing his dismissal.

[28] In these circumstances this is a factor which supports the granting an extension of time for the Applicant.

s.366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

[29] Prejudice to the employer will go against the granting of an extension of time. Mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[8]

[30] The Applicant lodged an unfair dismissal application seven days after his dismissal. The Respondent was therefore ready to contest this matter and developed submissions and gathered evidence in support of its response to this matter.

[31] Whilst there is a different legal matrix between an unfair dismissal claim and a general protections matter, the facts that are relied on will generally be the same irrespective of the type of claim.

[32] Therefore, in relation to this matter, there is not sufficient evidence before the Commission that there would be undue prejudice to the Respondent should an extension of time be granted.

[33] With respect to the merits of an application for an extension of time, the FWC is not generally in a position to make findings of fact on a contested factual matrix and where evidence from both parties is yet to be fully adduced.

[34] The Applicant alleged that because of him taking leave due to illness, a workplace right, adverse action was taken against him.

[35] The Respondent denied these allegations.

[36] Without closer examination as to the exact allegations of the Applicant and the response of the Respondent to those allegations, this is considered a neutral factor.

s.366(2)(e) - Fairness as between the person and other persons in a like position

[37] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past.[9]

[38] No submissions were made on this matter by the parties and this is therefore a neutral matter in this case.

[39] On the evidence provided to the Commission, the Applicant has been able to establish extraordinary circumstances pursuant to the relevant legislative provisions.

[40] The Applicant has provided reasons as to the reason for the delay and took clear actions to dispute the dismissal. These are factors in favour of allowing an extension of time. As the Respondent knew that the Applicant would be contesting this matter, there is no basis to say that it would sustain prejudice should an extension of time be allowed. The merits of the application are a neutral consideration, as is the fairness between the person and other persons in a like position.

[41] On balance therefore and pursuant to section 366(2) of the Act an extension of time is allowed. The matter will be re-allocated back to the General Protections Team at the FWC and will be listed at a date to be determined. I Order accordingly.

[1] Nulty v Blue Star Group [2011] FWAFB 975.

[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[5] Halls v McCardle and Ors [2014] FCCA 316.

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38].

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [300].

[9] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].

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