s.365 - Application to deal with contraventions involving dismissal

Application for a general protections remedy - extension of time - application dismissed

• [1] Ms Cassandra Thong (the Applicant) has applied pursuant to s 365 of the Fair Work Act 2009 (Cth) for the Commission to deal with a general protections dispute involving her dismissal from Ryker Capital Pty Ltd (the Respondent).

• [2] The Applicant's dismissal took effect on 1 April 2025 and this application was lodged on 23 April 2025.

• [3] Section 366(1) of the Act requires that a general protections application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). This application was filed 1 day outside the 21-day period and so the application can only proceed if the Commission grants a further period for it to be made.

• [4] The matter was listed for hearing on 5 June 2025. The Applicant was represented by Mr Law and the Respondent was represented by Ms Johnston.

• [5] For the reasons set out below, I find that the circumstances for the delay in filing the application are not exceptional and will dismiss the application.

• [6] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [7] The onus rests with the Applicant to demonstrate that there are exceptional circumstances, and this is a high hurdle to overcome.

• [8] Section 366 of the Act requires that the Commission must take into account the following matters when deciding whether to extend time:

(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.

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

• [10] The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[3]

• [11] The reason for the delay proffered by the Applicant was representative error.

• [12] Mr Gaffney, the Applicant's representative, gave evidence in the form of a witness statement that he is employed by Unfair Dismissal Experts Pty Ltd. He said part of his role is to prepare the final drafts of applications and lodge them with the Commission. On 22 April he was assigned to review and lodge the Applicant's Form F8 which was due to be submitted that day. That day, while he was working from home, he experienced an unexpected and severe migraine and nausea which he said related to ongoing medical complications from long covid. He said he fainted unexpectedly and was incapacitated. Mr Gaffney also gave evidence that the long weekend and the need to obtain further information from the Applicant meant the application was not ready to lodge before 22 April. As a result of the medical incident, Mr Gaffney was unable to lodge the application until the following day, making it outside the 21 day time limit.

• [13] The Applicant's evidence was that she engaged Unfair Dismissal Experts Pty Ltd on around 14 April 2025, and provided documents requested by her representative on either 20 or 21 April 2025, being the day or so prior to the expiry of the 21-day time period (and on the Easter long weekend). She said the delay in lodging the application was completely outside her control.

• [14] The Respondent submitted that the reason for the delay was not exceptional, and the Applicant was not blameless because she did not provide the information her representatives required until a day or two before the deadline.

• [15] In Jordan and MacLeod v Multiplex Australasia Pty Ltd,[4] the Full Bench said:

"[33].... It has been said that "the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application". However, the conduct of the applicant will be relevant only to the extent that it contributed to or explains the delay. That is the relevance of the observation of the Full Bench in Clark v Ringwood Private Hospital that "a distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant".

[34] The conduct of an applicant might have contributed to a delay in the filing of an

unfair dismissal application notwithstanding that the delay was also contributed to by

representative error. That might be the case if, for example, the applicant only consults the representative shortly before the expiry of the time limit, the applicant entrusts his or her application to a representative who is obviously unqualified or unwilling or unable to assist, the applicant fails to cooperate with the representative by providing the information or assistance necessary to prepare the application or the applicant leaves the application in the hands of his or her representative for a extended period without receiving any communication from the representative and without taking steps to ascertain the status of the application.

[37] We consider that the facts of the present cases raise similar considerations to those dealt with in Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; (2011) 211 IR 347 where the Full Bench concluded:

[30] Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative's requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application."

[31] As noted by a Full Bench in La Rosa v Motor One Group Pty Ltd, in the context of s 170CE of the WR Act:

As is evident from Clarke, little might be required to satisfy the Commission that the applicant was blameless in the delay. In the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge [in this case] a Notice of Election and thereafter left matters in the hands of his or her representative. ...

[36] We find that there was an acceptable explanation of the reason for the delay in lodgement of the application - representative error resulting from the oversight of Mr Robinson's original representative of the electronic reminder whilst the filing of the application was within his care and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his clear instructions to file an application and was blameless for the delay in lodgement of the application." (footnotes omitted).

• [16] I accept that Mr Gaffney was unable to lodge the application on 22 April because of the medical condition he suffered that day. However, I am not satisfied that the Applicant is blameless in terms of the delay in lodging his application because it is clear that the Applicant only provided documents requested of her representative, which were needed to complete the application, sometime over the Easter long weekend. Given the Applicant is not blameless, this criterion weighs only slightly in favour of granting an extension of time.

• [17] There is no evidence that the Applicant took any action to dispute her dismissal other than making this application. This weighs against an extension of time.

• [18] The delay is short and I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [19] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.

• [20] While both the Applicant and the Respondent included certain information about the circumstances leading to the Applicant's dismissal in their Form F8 and Form F8A respectively, neither party called any evidence as to the merits of the application.

• [21] Given the absence of any evidence, I am unable to make any determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

• [22] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to this kind of application. However, cases of this kind will generally turn on their own facts.

• [23] Again, neither party made any submission as to this criterion and as a result is a neutral consideration in the present matter.

• [24] As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and the test of 'exceptional circumstances' establishes a high hurdle.

• [25] Having regard to the matters I am required to take into account, I am not satisfied that the Applicant has demonstrated there are exceptional circumstances, either when the various circumstances are considered individually or together. While Mr Gaffney's illness explains the delay in part, the Applicant is not blameless given she did not provide material necessary for her representatives to complete her application in a timely manner. This contributed to the delay in filing the application. None of the other criterion support a finding of exceptional circumstances, given the lack of evidence and/or submissions about those other matters.

• [26] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time. Accordingly, the application is dismissed.

Mr J. Law, Paid Agent from Unfair Dismissal Experts Pty Ltd, for the Applicant

Ms T. Johnston, legal representative from Australian Presence Legal.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

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

[4] [2024] FWCFB 440.

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