s.365 - General protections

Application to deal with contraventions involving dismissal

[1] This decision concerns an application by Ms Catherine Kennedy (Kennedy/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (General Protections Application).

[2] In the General Protections Application, Ms Kennedy states her employment with Reece Australia Pty Ltd (Respondent) commenced on 23 January 2023 and that her dismissal took effect on 13 February 2023. The General Protections Application was lodged on 10 March 2023.

[3] Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.366(2). The period of 21 days ended at midnight on 6 March 2023. The General Protections Application was therefore filed 4 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.366(2). The Respondent opposes this request and objects to the General Protections Application on the basis that it did not dismiss the Applicant.

[4] In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant's application for an extension of time.

[5] The matter was heard via Microsoft Teams on 3 May 2023. Neither party filed any witness statements and the matter proceeded on the basis of the written submissions filed, supplemented by oral submissions during the hearing. Documents that were attached to the submissions or filed as part of the General Protections Application were admitted into evidence.

[6] For the reasons that follow, I decline an extension of time under s.366(2).

• [7] The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute 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]

[8] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

[9] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

[10] 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.

• [11] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3]

[12] I now consider these matters in the context of the General Protections Application.

• [13] The FW Act does not specify what reason for 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 an applicant's favour, however all of the circumstances must be considered.[4]

• [14] The General Protections Application was lodged by email at 3:34pm on 10 March 2023. The covering email stated[5]:

I have just spoken to Russell from the Fair Work Commission customer service enquiry line, who advised that I have wrongly completed FWC's Form F2 and submitted (U2023/1876) instead of Form F8.

Please find attached Application completed using the FWC's Form 8, where I have also included advice that I am now lodging three days outside of the 21‐day deadline for lodgement, because I have today found that I lodged my application previously within 21 days, but used the wrong form.

Due to my financial situation ongoing and not yet commencing new paid employment, I completed an Application to waive lodgement fee, following my submission of Application using the incorrect Form 2 on Tuesday, 7.3.2023.

My apologies in wasting staffs' time by completing and submitting the incorrect FWC Form.

[15] In response to question 1.4 of the General Protections Application, which seeks an explanation of the reason for delay for an application not made within 21 days of dismissal, the Applicant stated:

I wrongly completed and lodged this Application on 7.3.2023 using FWC Form 2 instead of FWC Form 8, within 21 days of dismissal on false grounds, after reporting misconduct to abusive misconduct by existing staff towards myself and other staff and also misrepresentation to the employer's customers of the quality of goods and services.

Today, 10.3.2023 I was advised by Fair Work Commission customer service staff that I had to resubmit my Application using the Fair Work Commission's Form 8, and today being the third day outside the 21-day Application deadline.

[16] During the proceedings, the Applicant submitted that this is simply a case of her filing the wrong application form. The Applicant submitted that on 10 March 2023, the Commission advised her in writing and in a telephone call that she had filed the wrong application form, and that she corrected this by filing the General Protections Application within a few hours of her discussion with the Commission.

[17] In response to my observation that an application made on 7 March 2023 was not made within 21 days of 13 February 2023, the Applicant accepted that she had made an error in calculating the 21 days but submitted it was a difficult time and she had limited knowledge of the Commission's procedures.

• [18] The Respondent referred to correspondence sent by the Applicant on 16 February 2023 in which she had stated that the issue between her and the Respondent "is now with the Fair Work Commission."[6]

[19] The Respondent submitted that this correspondence, sent three days after the Applicant's dismissal, demonstrated she was aware that she could commence an application in the Commission, but did not so within the applicable timeframe. The Respondent submitted that the General Protections Application be dismissed.

[20] In reply, the Applicant submitted the wording in her correspondence was to indicate that the next step would be to refer the matter to the Commission and at that stage she had not sought any advice in relation to the options available to her. The Applicant submitted that it was a difficult and stressful time and that she was looking for alternative employment and new rental accommodation due to the expiry of her lease.

[21] It is not in dispute that the Applicant's dismissal took effect on 13 February 2023. It is also not in dispute that the Applicant filed an unfair dismissal application on 7 March 2023, before filing the General Protections Application on 10 March 2023.

[22] The primary reason advanced by the Applicant for the delay in making the General Protections Application was that she had used the wrong application form and that she corrected this by filing the General Protections Application within a few hours of her discussing this with the Commission on 10 March 2023.

• [23] The correspondence sent by the Commission to the Applicant on 10 March 2023 referred to the Applicant's unfair dismissal application and that it appeared from the information contained therein that the Applicant had not completed a period of employment of at least the minimum employment period.[7] Furthermore, a file note on the Commission's file relevant to the telephone call referred to by the Applicant in matter U2023/1876 states:

Telephone call from Applicant re MEP. Ms Catherine Kennedy advised employment dates on application form are correct. Client Services informed Ms Kennedy she does not meet MEP. Ms Kennedy did not wish to discontinue over phone but will reply to 'MEP not met' email. Ms Kennedy further advised she will lodge F8 general protections dismissal.

[24] The issue raised by the Commission was that the Applicant had not completed a period of employment of at least the minimum employment period which is a jurisdictional prerequisite to the determination of an unfair dismissal application. Neither the Commission's correspondence or the file note refers to a wrong or incorrect application being made.

[25] Having regard to the materials before me, the Applicant's explanation that the Commission unilaterally determined that she had filed the wrong application and requested that she resubmit the correct application form is rejected.

[26] It is abundantly clear, and I so find, that in response to becoming aware that it was highly likely that her unfair dismissal application would fail on jurisdictional grounds, the Applicant withdrew it and filed the General Protections Application.

[27] I also do not consider that the Applicant initially filed the unfair dismissal application before filing the General Protections Application constitutes an acceptable or reasonable explanation for the delay for two reasons.

• [28] First, there is nothing unusual about an applicant choosing to challenge a dismissal by first filing an unfair dismissal application before withdrawing it and filing a general protections application instead.[8] In those circumstances, the filing of the later application will remain subject to any applicable time limits imposed by the FW Act.

• [29] Second, the unfair dismissal application was filed 1 day outside the 21 day period permitted under s.394 of the FW Act. The Applicant's explanation for this delay was that she had miscalculated the 21 days. It is well established that a lack of knowledge, ignorance or miscalculation of the applicable time limits for the filing of general protections or unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[9]

[30] As noted above, in submissions in reply, the Applicant submitted that during the 21 day period she was also seeking new employment, looking for alternate accommodation and that it was a difficult and stressful time.

• [31] In relation to the Applicant searching for new employment, I do not consider this to be an acceptable explanation for the delay. While that is a common and understandable response by an employee losing their job, it is not out of the ordinary, unusual, special or uncommon.[10]

• [32] In relation to the Applicant looking for alternate accommodation and that it was a difficult and stressful time, the Applicant has not produced any evidence as to how those matters prevented her from filing the General Protections Application within the 21 day timeframe.[11] Indeed, there is no evidence before the Commission as to when her lease expires or expired.

[33] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

s.366(2)(b) - Action taken to dispute the dismissal

• [34] It is clear in the email correspondence sent by the Applicant on 16 February 2023 that she disputes her dismissal.[12] This circumstance weighs in favour of a conclusion that there are exceptional circumstances.

[35] The Respondent accepted that it has not suffered any significant prejudice as a result of the delay in making the General Protections Application, and I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted.

[36] However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of an extension of time. I consider this to be a neutral consideration.

s.366(2)(d) - Merits of the General Protections Application

[37] The FW Act requires me to take into account the merits of the General Protections Application in considering whether to extend time.

[38] The competing contentions of the parties in relation to the merits of the General Protections Application are set out in the filed materials.

[39] It is evident to me that the merits of the General Protections Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

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

[40] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [41] The test of 'exceptional circumstances' establishes a 'high hurdle'.[13] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

[42] 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 under s.366(2).

[43] Accordingly, the General Protections Application must be dismissed. An order to that effect will be issued with this decision.

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

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

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

[8] GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38 at [10], [46], [77]-[78].

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]; Sandra Mueller v Coles supermarkets Australia Pty Ltd [2022] FWC 1852 at [13]; Ciaran Ryan v Finney Pty Limited T/A Cutprice Car Rentals [2020] FWC 1273 at [25]- [31]; Michael Harvey v Compass-Group (Australia) Pty Ltd [2021] FWC1375 at [57].

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

[11] See Victor Blanco v White Bathroom [2021] FWC 4694 at [44]- [51].

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