Fair Work Act 2009

s.365 - General protections

Application to deal with a general protections dispute involving dismissal - extension of time - circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Mr Craig Matthews under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366 requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2).

[2] The date that Mr Matthews' dismissal took effect was 7 August 2018, but he did not lodge his application until 1 October 2018. The period of 21 days ended at midnight on 28 August 2018, and his application was therefore lodged 34 days out of time. He asks the Commission to allow a further period for the application to be made. His former employer, Roy Morgan Interviewing Services Pty Ltd (Roy Morgan), opposes the grant of an extension of time.

[3] Mr Matthews' application for an extension of time was heard before me by recorded telephone conference on 5 December 2018. Mr Matthews appeared for himself and gave evidence. Roy Morgan's general counsel, Mr Yeatman, appeared and gave evidence for the company.

[4] Before I deal with the specific matters that the Act requires me to take into account, I will make some brief observations about the principles that are to be applied in considering whether I should exercise my discretion to extend time. The Act allows me to extend the period within which an application under s 365 must be made only if I am satisfied that there are 'exceptional circumstances'. The test of 'exceptional circumstances' establishes a high hurdle for an applicant.[1] The meaning of this expression in the context of s 366 of the Act was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),[2] where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.[3]

[5] In order for Mr Matthews' general protections application to proceed, it is necessary for him to obtain an extension of time under s 366(2) to make the application. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

• (a) the reason for the delay; and

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

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

• (d) the merits of the application; and

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

[6] I will deal with these matters in turn.

[7] The 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[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd a Full Bench noted that the absence of an 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.[6] The period of the delay is the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[7]

[8] Mr Matthews submitted that there were various reasons for the delay in filing his application. He said that he was very distressed about losing his job, and that he had to look for work and also new accommodation, as he could no longer afford his rent. He submitted that his dismissal had an adverse effect on his health. He said that he is new to Melbourne. He submitted that he did not know about the timeframes associated with bringing a general protections application in the Commission. Mr Matthews said that he had tried to obtain legal advice, but was unable to get an appointment at the Fitzroy Legal Service.

[9] In my opinion, the matters referred to by Mr Matthews do not provide a convincing explanation for the delay. I accept that Mr Matthews was very distressed about losing his job, but this is both an understandable and very common reaction. Similarly, the need to look for new work is a commonplace circumstance associated with dismissal. I take into account that Mr Matthews had to look for new accommodation, which is a more unusual feature of his circumstances, however, Mr Matthews did not substantiate that this prevented or seriously impeded him filing the application within the 21 day period.

[10] Although Mr Matthews contended that his dismissal had an adverse effect on his health, he did not lead any medical evidence in support of this contention. As to being new to Melbourne, I do not find this relevant. An application under the Act is a federal, not a state proceeding, and there is no reason why being new to Melbourne should have affected his ability to file an application within the time limit. I accept that Mr Matthews did not know about the 21 day time limit however in Nulty the Full Bench noted that ignorance of the statutory time limit is not an exceptional circumstance.[8] Further, although he was not able to get an appointment at the Fitzroy Legal Service, Mr Matthews could have sought legal advice elsewhere. I note that there is information on the Commission's website about how to lodge general protections and other applications, including the timeframes associated with filing.

[11] The lack of an acceptable or reasonable explanation for Mr Matthews' delay in lodging his unfair dismissal application weighs against the granting of an extension of time.

[12] Mr Matthews said that he told Mr Yeatman that he would be contesting the dismissal in a tribunal. Mr Yeatman did not dispute this, although he stated that he did not understand what Mr Matthews meant by 'tribunal'. I accept that by making this statement to Mr Yeatman, Mr Matthews took action to dispute his dismissal. This is a factor that weighs in favour of an extension of time.

[13] I cannot identify any particular prejudice that would accrue to Roy Morgan if an extension of time were to be granted. However, the mere absence of prejudice is not itself a factor that would warrant the grant of an extension of time, nor is it exceptional. It is commonly the case that an extension of time would not occasion prejudice to the employer. I consider this to be a neutral factor in the present case.

[14] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. There is insufficient material before me to make any detailed assessment of the merits.

[15] Mr Matthews submits that he was dismissed in contravention of s 340 of the Act. This section provides, among other things, that a person must not take adverse action against another person because the other person has a workplace right, or has, or has not exercised a workplace right. 'Adverse action' is defined in s 342 and includes dismissal. Section 341 provides that a person has a workplace right if, among other things, the person is able to make a complaint or inquiry in relation to his or her employment. Mr Matthews also contended in his application that he had been subjected to coercion and undue influence for the purposes of section 343 and 344 of the Act.

[16] Mr Matthews had worked for Roy Morgan as a casual door-to-door interviewer for a period of some six weeks. He says that he was dismissed because he made inquiries or complaints about his employment. In particular, he inquired or complained about not receiving his pay on time, and told the company that he thought it unreasonable to expect him to complete interviews within an hour. Mr Matthews further contended that his pay was deliberately withheld and his complaint was not dealt with properly. He also says that he was denied access to his computer, which prevented him from working, and that this constituted further adverse action. He says that he was subjected to bullying conduct, and that there was no fair process in relation to his dismissal. He says that, when the company unreasonably required him to undergo training before providing him with further work, he reluctantly agreed, but was then dismissed because the company did not like his demeanour, and because he sent too many emails.

[17] The company accepts that it dismissed Mr Matthews but denies that the dismissal occurred because Mr Matthews had, or had exercised, a workplace right. Mr Yeatman said that Mr Matthews was dismissed because the company concluded that he did not have the necessary people skills to do the job. Mr Yeatman said that in a meeting on 3 August 2018 he told Mr Matthews about concerns that had been raised by his supervisor, but that Mr Matthews was resistant to criticism and his manner was aggressive. Mr Yeatman said that the company thought that Mr Matthews needed further training, as it expected him to be able to complete interviews in roughly an hour, and undertake six interviews per assignment like other employees. He said that the company initially offered to provide the training to Mr Matthews, but decided to terminate his employment. Mr Yeatman acknowledged that there had been a delay in Mr Matthews receiving his pay, that he regretted this, and that he did not know why it had occurred. Mr Yeatman said that after the payroll problem, Mr Matthews became aggressive in his dealings with the company, sending various people numerous emails. Mr Matthews does not accept Mr Yeatman's characterisation of events, and in various respects there are factual contests between the parties.

[18] In my view, Mr Matthews' application makes out at least a prima facie claim under s 340. He contends that he was dismissed because he made a complaint or inquiry in relation to his employment and thereafter was dismissed for this reason. Equally however, Mr Yeatman's evidence makes out a prima facie defence, namely that Mr Matthews was dismissed because he did not have the right people skills, not because of his complaint or inquiry. It is not clear to me how sections 343 and 344 are said to have been contravened. Nevertheless, these matters, and the merits of the application more generally, would need to be tested if an extension of time were granted, and the matter were to proceed. Much would depend on findings of fact. Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case to tell for or against an extension of time.

[19] In the circumstances I consider the merits of the case to be a neutral consideration.

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

[20] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Mr Matthews and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[21] The time limit that applies to the exercise of a person's right to bring an application under s 365 reflects the Parliament's intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[22] Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. Save for Mr Matthews disputing the dismissal by telling Mr Yeatman that he would be contesting the dismissal in a tribunal, no factors weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[23] I decline to grant an extension of time under s 366(2). Accordingly, Mr Matthews' application under s 365 of the Act is dismissed.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [14]

[2] [2011] FWAFB 975

[4] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, per Gostencnik DP at [9]

[5] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP, at [16]

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

[7] See Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; See also Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963

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