Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

[1] This decision concerns an application by Mr Cedric Kato (Kato/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) (Application).

• [2] In the Application, Mr Kato stated his employment with Hub24 Management Services Pty Ltd (Respondent) commenced on 19 April 2022 and that his dismissal took effect from 14 December 2022.[1] The Application was made at 12:01am on 5 January 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 4 January 2023. The Application was therefore filed 1 minute 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 objected to the Application on the ground that it was not made within 21 days after the dismissal took effect.

[4] The matter was allocated to my Chambers to determine whether an extension of time should be granted under s.366(2).

[5] 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.

[6] The Applicant filed written submissions, as well as a range of emails and other documentary material. The Applicant's materials were collated in the Hearing Book (Exhibit 1) and a Supplementary Hearing Book (Exhibit 2).

[7] The Respondent filed written submissions and a witness statement of Ms Ruth Hope-Jones, the Respondent's Head of People Experience (Exhibit 3).

[8] The matter was heard as a determinative conference on 30 May 2023. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Mr G Jolly.

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

• [10] 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.[2] 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.[3]

[11] 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.

[12] 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.

[13] 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.

• [14] 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.[4]

[15] I now consider these matters in the context of the Application.

• [16] 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.[5]

[17] The primary reason advanced by the Applicant was that he experienced technical difficulties with lodging the Application online and paying the application fee.

• [18] By way of background, on 23 December 2022, the Applicant contacted an employee advocacy firm to seek advice and representation. Despite exchanging email correspondence with this firm on 30 and 31 December 2022,[6] the Applicant submits there were difficulties in arranging a consultation with this firm.

• [19] At approximately 1.06pm on 4 January 2023, the Applicant contacted a law firm seeking advice and representation.[7] The Applicant submits that later that day the law firm advised him that it would not be able to provide advice or representation.

[20] The Applicant submits that he then attempted to lodge the Application online through the Commission's website on the evening of 4 January 2023. The Applicant submits he experienced technical difficulties with the online payment function, necessitating converting the Application to a PDF File and lodging by email.

[21] The Applicant submitted that the technical difficulties were the reason for the delay in filing the Application.

[22] The period of delay is 1 minute. I accept that the Application was filed out of time by the smallest of margins. However, the Commission can only extend the period within which an application to deal with a dismissal dispute it is satisfied that there are 'exceptional circumstances'.

[23] The Applicant has not provided any evidence beyond the bare assertion that he experienced technical difficulties attempting to the lodge the Application online on the evening of 4 January 2023.

• [24] Where an applicant is seeking to establish exceptional circumstances on the basis of technical difficulties in lodging an application before the Commission, that party will bear the evidentiary onus to adduce evidence of the nature and extent of those difficulties.[8]

• [25] In Giles v Coal Train Australia Pty Ltd[9], Deputy President Asbury (as the Vice President then was) stated:

[38] Notwithstanding this I accept that an Applicant seeking to establish exceptional circumstances on the basis of technical difficulties associated with lodging the application, is required to provide evidence to establish the nature and the impact of those difficulties. At very least, an Applicant assertion such difficulties should provide evidence about when attempts were made and what those attempts consisted of including documentary evidence where it is available. For example, in Arch v Insurance Australia Group Services Pty Limited there was evidence of technical issue associated with a maintenance closure of the Commission's portal at or around the time that the Applicant established that he was attempting to lodge his application. The Applicant provided sufficient evidence of the time at which his attempts were made including copies of a partially completed application sufficient to establish that he did attempt to lodge it a time when he reasonably believed that the Commission's portal was not functioning and that this was the only way to lodge his application.

[39] In the present case there is insufficient evidence about the attempts made by the Applicant to file her material and when she made those attempts. The incomplete application, while being validly made, does not contain information to enable conclusion to be reached or inference to be drawn as to when it was prepared, to support the Applicant's assertions that she attempted to lodge it on 23 or 24 January 2020. As a result, there is no credible explanation for the delay in lodging the application. The lack of a credible explanation for the delay in filing the application is a matter that weighs against the exercise of the discretion to grant a further period for the application to be made.

[26] As stated above, the Applicant has not provided any evidence of the technical difficulties, in chief or in reply.

[27] The test of 'exceptional circumstances' establishes a 'high hurdle'. To accept the Applicant's submissions in the absence of any evidence, would make it all too easy for applicants to circumvent the high hurdle that the test of exceptional circumstances establishes.

[28] Furthermore, there was no reason why the Applicant needed to seek advice prior to the filing of the Application. The Applicant could have filed the Application and continued to seek to engage a lawyer or employee advocate. Accordingly, I do not accept that the technical difficulties asserted by the Applicant is 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

• [29] Following his dismissal, the Applicant corresponded by email with Ms Hope-Jones in relation to returning the Respondent's property and requesting a separation certificate.[10] This correspondence does not dispute the dismissal or refer to the making of an application contesting the dismissal.

[30] Accordingly, I find the Applicant did not take any action to dispute the dismissal prior to making the Application on 5 January 2023. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

[31] Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

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

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

[33] The Respondent submitted that the Application was lacking in merit. The Respondent submitted that the Applicant was dismissed for serious misconduct and that during the course of investigation, the Applicant admitted to the alleged conduct.

[34] The Applicant agreed that he had engaged in some of the alleged conduct but submits that he was treated inconsistently compared to other employees who also engaged in the same conduct or similar conduct in the past. The Applicant contends the decision to terminate his employment was motivated by his race and sex.

[35] It is evident to me that the merits of the 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

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

[37] The test of 'exceptional circumstances' establishes a 'high hurdle'. 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.

[38] 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).

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

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

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

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

[8] Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan [2019] FWCFB 5104 at [43].

[9] [2020] FWC 2274 at [38]- [39].

[10] Exhibit 3 at [10]-[12], Annexures D and E.

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