Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal.

[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that Mr Damon Thompson-Jackson (Applicant) did not file within the statutory timeframe and should not be allowed a further period within which to lodge his application. The reasons for that decision follow.

[3] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[4] It was not disputed that the Applicant was dismissed from his employment as a telephone advisor (principally responsible for taking telephone bets) with Hillside (Australia New Media) Pty Limited trading as bet365 (Respondent) effective 20 October 2020.[1] The Applicant did not lodge his application until 11 November 2020. Accordingly, the period of 21 days ended at midnight on 10 November 2020 and the application was lodged one day out of time.

[5] The Applicant asks that the Commission allow a further period for the application to be made. The Respondent strongly opposes.

[6] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are "exceptional circumstances". The matters of which I must be satisfied are set out in s.366(2) of the Act.

[7] The exceptional circumstances test establishes a high hurdle for an applicant.[2] In this context, 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.[3] 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.[4]

[8] My consideration of the matters set out at s.366(2) follows.

Reason for the delay - s.366(2)(a)

[9] 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" or "reasonable" or "credible" explanation.[5] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant's favour.[6] Ultimately, it is a question of degree and insight.[7]

[10] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay.[8]

[11] The Applicant explained the reason for his delay was because he was experiencing acute mania, stress and mental anguish. In support, the Applicant filed a Work Health Workers Compensation Medical Certificate which certified that the Applicant was assessed on 9 November 2020 and unfit for work from 9 November 2020 to 7 December 2020. He also filed a referral letter from a doctor (general practitioner) dated 9 November 2020, which stated that the Applicant was "suffering with mixed anxiety and depression" and at that time was not on any medication. Other documents were filed by the Applicant regarding his condition and postdate the filing the application in this matter.

[12] The Applicant also gave evidence that he obtained the assistance of a friend to finalise the application paperwork. On 10 November 2020, being the last day on which he could file within the statutory timeframe, the Applicant found that he did not understand one question on the application form. By that time, it was outside of Commission business hours, and the Applicant decided to wait until the following morning to enquire about how to complete that question before submitting this application.

[13] The Respondent asked the Commission to have regard to the evidence of the Applicant's activities during the 21 day period after his dismissal. It contends that by the following activity the Applicant was clearly functional during this period, both physically and mentally, and therefore his medical condition could not have prevented him from filing this claim within the statutory timeframe. The Respondent's evidence, of a Mr David Smith (Head of Telephone Betting in Bet365's Darwin Office and person in charge of the Darwin office), was that the Applicant's activities included:

1. On 21 October 2020, and again on 25 October 2020, the Applicant proactively followed up Mr Smith by email so that he could return the Respondent's property (a copy of that email exchange was filed with the Commission);

2. On 27 October 2020, the Applicant met with Mr Smith at a café for the purpose of returning the Respondent's property;

3. On 20 October 2020 to 10 November 2020, the Applicant was active on social media (a bundle of screenshots of facebook posts by "Damon Jackson" were filed with the Commission); and

4. On and not before 9 November 2020, the Applicant attended a medical centre and obtained a referral to a specialist (the medical record of which was filed by the Applicant with the Commission).

[14] In evidence before the Commission, the Applicant accepted that the facebook screenshots were of his own posts, that he had made to his personal facebook account. The Applicant's facebook posts included the following:

1. On 31 October 2020, Damon Jackson changed his profile picture. The photograph subject of the profile picture is said by Mr Smith to be of an employee of the Respondent, a Ms Jacki Duturbure, who had reported feeling threatened and intimidated by Mr Thompson-Jackson prior to his dismissal.

2. Also on 31 October 2020, a series of posts by Damon Jackson referencing "Jaki" such as: "Wonder how much Jaki masks would cost to mass produce for next Halloween [emoji]".

3. Also on 31 October 2020, the following posts by Damon Jackson: "The rest of you I tried to keep it in house. When we go to court it all comes out. I'm not sorry" and "These people owe me 2.3mil my wages till I'm 70 One day I'll tell you what my dad made me do to someone over $15... So no mercy Everything happens for a reason".

4. On 3 November 2020, a post by Damon Jackson which said "Adverse Action No limit on claims If unresolved we go to the Federal Court [love heart emoji] Jaki get you stack right Defamation Case coming your way [fire emoji x 3] this ain't going to be cheap", with a photograph of an office reception desk with the sign "De Silva Hebron Barristers & Solicitors".

5. Also on 3 November 2020, a long post by Damon Jackson which included the following: "First lawyers meeting at 10am today another at 4pm. Letter to NTRC to drop off. And a not so secret tip off to the Tax people. Then it's Human Rights. Discrimination is a big deal where people are going to learn the gravity of there actions. I'm here doing this because my habits allow me to be me. Ive worked for years to be able to be the person I am. And I'm proud of the job I've done. It wasn't easy but nothing worthwhile ever is."

6. On 6 November 2020, a post by Damon Jackson: "Fucking empowering Honestly if anyone ever needs help with this process and it's super hard on purpose I'll write more about that later. But knowing people like I do I doubt 70% can get themselves right in the 21 days while dealing with the loss of job and having been dealing with months and years of discrimination. I bent but you'll never break me", with a screen shot of one (part completed) section of a general protections application form.

[15] I accept that the Applicant experienced difficulties after his dismissal and, at least as of 9 November 2020, was experiencing anxiety and depression. However unfortunate, this is not uncommon or unusual and does not weigh in favour of a finding of exceptional circumstances in this case.

[16] Neither is ignorance or a lack of understanding of the statutory requirements an acceptable explanation. On the materials before the Commission, the Applicant has demonstrated that he was able to access and comprehend publicly available information about his options. As of 31 October 2020, the Applicant was aware of the statutory timeframe for filing and by 6 November 2020 had commenced completing his application materials. He simply did not do so until after the statutory timeframe had already expired. That he waited until the last day to seek the assistance of a friend and even then chose to wait until after the statutory timeframe had expired to make further enquiries about completion of the form does not reasonably explain the delay.

[17] I consider the absence of an acceptable, reasonable or credible explanation for the delay weighs against a conclusion that there were exceptional circumstances in this case.

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

[18] In respect of s.366(2)(b), I am required to take into account any action taken by the Applicant to dispute his dismissal.

[19] The Applicant's evidence was that at or around the time he was stood down from employment, and prior to his dismissal, he said words to his employer to the effect that he "looked forward to raising the matter with the adults" which he said was intended to be a reference to referring the matters in dispute to an independent body like the Commission.

[20] After the Applicant's dismissal, on 25 October 2020, the Applicant emailed Mr Smith regarding the return of company property in which he said (among other things) "I can't wait to share this process with you" which was said to also be a reference to taking the dismissal further in a court or tribunal. There is also the matter of the Applicant's various facebook posts on his personal facebook account, whereby the Applicant sought to broadcast what appears to be at least a contemplation if not intent to take action to challenge his dismissal in a court or tribunal. Whilst not directly communicated to the Respondent, it is plain that the Respondent was informed of these facebook posts and their content.

[21] There is no evidence of direct action taken to dispute or challenge the dismissal itself until this claim was filed, which is after the statutory timeframe had expired. However, I am satisfied that the Respondent was at least indirectly on notice and aware of the Applicant's intention to take the matter further.

[22] This weighs only slightly in favour of a finding of exceptional circumstances.

[23] It was not argued and I am not able to identify any particular prejudice which the Respondent would suffer. However, even an absence of prejudice is not of itself a factor that would warrant an extension of time, nor is it exceptional.

[24] I consider this to be a neutral factor in the present case.

[25] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[26] On the evidence before the Commission, the Applicant made a complaint about a co-worker (Ms Duturbure) in which he alleged that he was bullied and discriminated against and an investigation was commenced. The Applicant was then subject of various complaints alleging threats of violence and intimidation towards co-workers, which he claims were false complaints and a response to his complaint. The Applicant contends that his complaint was covered up and he was ultimately dismissed because he made the complaint.

[27] For its part, the Respondent strongly denies that it has contravened the general protections provisions of the Act. Mr Smith gave evidence that the Applicant's complaint was taken seriously but that he was terminated by reason of his serious threats of violence towards other employees and for no other reason. Mr Smith claims to have witnessed at least one such threat made in terms to the effect that the Applicant would "knock down" another employee of the Respondent. Immediately following this incident, on 5 October 2020, the Applicant was "suspended" from his employment and on 20 October 2020 the Applicant was notified of his dismissal by letter delivered to him by courier. The Respondent's written reasons for ending the Applicant's employment were:

"I am writing to advise as to the outcome of the investigation.

The investigation established that you did engage in threatening and intimidating behaviour towards other employees of bet365.

Having regard to the seriousness of the misconduct engaged in by you, the decision has been made to terminate your employment. As bet365 has elected to pay out your 4 weeks' notice period, your last working day with bet365 will be today."

[28] The Applicant acknowledges that he made the facebook posts produced to the Commission, and that he produced an application for a gun licence at work, however strongly denies that he threatened other employees of the Respondent. The Applicant contends that he was stood down over a "false complaint" and that the Respondent had only produced part of the relevant records to the Commission.

[29] Having examined the evidence before the Commission, 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. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time.

[30] Accordingly, I consider the merits to be a neutral consideration.

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

[31] Applications to extend time generally turn on their own facts. The parties did not draw to my attention any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position.

[32] I consider this to be a neutral consideration in the present matter.

[33] 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.

[34] 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. That there is no acceptable, reasonable or credible explanation for the delay in filing the application weighs strongly against the grant of an extension in this case. The action taken to dispute the dismissal weighs only slightly in favour, and the remaining factors weigh neutrally. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

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

[1] Item 1.3 of Form F8 Application filed 11 November 2020 and paragraph 3 of Respondent's Outline of Submissions filed 20 January 2021.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 (Perry) at [21].

[5] Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd [2018] FWC 7355 at [7].

[7] Green v Bilco Group Pty Ltd [2018] FWC 6818 at [8].

[8] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]- [33]; Perry at [23].

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