s.365 - General protections

Application to deal with contraventions involving dismissal - whether earlier unfair dismissal Form F2 filed by mistake - no mistake - general protections application filed out of time -circumstances not exceptional - application dismissed.

[1] On 21 June 2023, Ms Danuta Jordan (Applicant) applied under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal.

[2] On 3 July 2023, Arrow Worldwide Pty Ltd (Respondent) filed its F8A Response to the general protections application, raising a jurisdictional objection to the application on the ground that that it was made outside the 21-day time limit set out in s.366(1) of the Act.

[3] Section 366(1) requires an application under s.365 to be made within 21 days after the dismissal took effect. The Commission must therefore determine in the first instance whether a further time for lodgement of the application is required and, if so, whether it should be granted.

[4] Upon the matter being allocated to me, I issued directions for the filing of evidence and submissions. After conferring with the parties, I resolved to conduct the matter by way of a determinative conference.

[5] Ms Jordan filed a witness statement with supporting documents, in addition to her 'Form F8' application. She was briefly cross-examined. The Respondent called no witnesses but relied on the Form F8A Response it filed.

[6] There does not appear to be any dispute, and I am satisfied, that Ms Jordan was dismissed from her employment, effective on 30 May 2023.

[7] For completeness, in her Form F8, filed for her general protections claim, Ms Jordan stated she was notified of her dismissal on 30 May 2023 and that it also took effect on the same day. The employer, in its Form F8A Response, also stated that the date of dismissal was 30 May 2023. While the letter of termination, which was dated 30 May 2023, was not received until 31 May 2023 (due to an inadvertent emailing error), the date of 30 May 2023 was confirmed in oral evidence as being the actual date of dismissal.

Was the application made within time - the "mistake"?

[8] On 16 June 2023, Ms Jordan made an application for an unfair dismissal remedy, by filing a Form F2. That application was made within time and was completed online.

[9] While not appreciated by Ms Jordan at the time, her unfair dismissal application was likely to fail because she had not completed the six month 'minimum employment period' required by s.386(2)(a) of the Act by the time she was given notice of her dismissal.

[10] On 21 June 2023, Ms Jordan received a letter (by email) and a telephone call from Registry staff of the Commission, alerting her to the fact that she might not have worked for the minimum employment period. In the telephone conversation, Ms Jordan says that she was told to the effect that, if she wanted to continue her action against her former employer, she would instead need to complete a general protections application. In response, and by about 2pm on the same day, Ms Jordan had completed and lodged her current application, namely her claim for a general protections claim.

[11] In Ms Jordan's witness statement, she states she filed the "incorrect document" on 16 June 2023 and that it was a "mistake".

[12] Ms Jordan briefly gave further oral evidence, in response to questions asked of her. I record my view that Ms Jordan gave her answers honestly and candidly. My impression was that she was a sincere person. Nonetheless, in respect of her mistake, Ms Jordan acknowledged that the mistake was more in the nature of knowing what she has learnt since 21 June 2023 about unfair dismissals and the minimum employment period, she would have done things differently.

[13] In Hambridge v Spotless Facilities Services Pty Ltd [2017] FWCFB 2811 (Hambridge), the Full Bench considered circumstances where the applicant filed a wrong form by mistake. Mr Hambridge intended to make an unfair dismissal application but instead he erroneously made his application using the form for a general protections application, which was the wrong form. There was a positive factual finding of error to this effect at first instance that was undisturbed on appeal.

[14] I respectfully agree with the Full Bench's observation that:

"Mr Hambridge's error in using the wrong form for his first application, in non-compliance with s.585, could have been dealt with in any one of three ways: by correction, amendment or waiver by the Commission under s.586, by dismissal of the application under s.587(1)(a), or by Mr Hambridge discontinuing the application under s.588."[1]

• [15] By contrast, where there is no error, it would not be appropriate (or permissible) to allow s.586 to 'convert' what was in truth an unfair dismissal application to an application of a "fundamentally different" character, namely a general protections application: Ioannou v Northern Belting Services Pty Ltd (Ioannou).[2]

[16] In the present case, there is not a mistake of a kind that allows me to conclude that Ms Jordan's general protections claim was, in truth, filed or intended to be filed on 16 June 2023 (albeit using the wrong form).

[17] I conclude that Ms Jordan's application for a general protections claim was made on 21 June 2023.

[18] On this basis, her application should have been filed by 20 June 2023 and was, in the circumstances, one day late.

Was the application made within such further period as the Commission allows?

[19] Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

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

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

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

• [20] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3] I set out my consideration of each matter below.

Section 366(2)(a) - Reason for the delay

• [21] For the general protections application to have been made within 21 days after the dismissal took effect, it needed to have been made by 20 June 2023. The delay is the period commencing immediately after that time until the date the application was lodged on 21 June 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

• [22] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]

• [23] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]

[24] As noted above, Ms Jordan was dismissed on 30 May 2023. By this stage, she had only been in the role since 30 March 2023.

[25] Ms Jordan's application records that the reason for her dismissal was that the business had taken a slump and that her role was no longer required. In her application, she has queried whether this was the case or not. While it is not a matter that I need to decide, I would record that, from Ms Jordan's perspective, the dismissal left her feeling "depleted", particularly in circumstances where she had left her old job - that she otherwise enjoyed - to start with her new employer only to find herself now searching for employment months later. In her application, she stated "I worked hard, showed empathy and courtesy to my work colleagues, brought new ideas to the role and really don't know why I was dismissed this way."

[26] In the employer's Form F8A Response, it does not dispute Ms Jordan was a diligent worker. Indeed, it stated "Due to the applicant's previous good work performance, the respondent is open to entertaining the idea of re-hiring the applicant in a suitable position on agreed terms. However, the role previously held by the applicant which was made redundant no longer exists in the business and the business has no intention of re-instating this role."

[27] While I accept that the dismissal certainly impacted upon Ms Jordan, the impact did not prevent her from pursuing her claim. She did so, at least initially, by commencing an unfair dismissal application on 16 June 2023.

[28] The reason why Ms Jordan did not commence a general protections claim (instead of an unfair dismissal claim) largely overlaps with my conclusions in the previous section, above.

[29] I find that the reason for delay was because Ms Jordan had made an application for an unfair dismissal remedy and, until she realised that application was likely to fail (due to the minimum employment period requirement), she was content to proceed with that application to challenge her dismissal.

[30] Ms Jordan was unaware of, or did not fully appreciate, there was a six month minimum employment period that needed to be met for her unfair dismissal claim. With the benefit of hindsight, she is now aware of such matters and, it was with that benefit, she commenced her current general protections claim.

[31] The delay in the present case was one day. While that delay is not of itself long, that does not alter the overall requirement that there be a finding of exceptional circumstances before a late application can proceed.

[32] The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances.

• [33] Mere ignorance of the statutory time limit is not an exceptional circumstance.[7] I would make the same observation as to ignorance regarding the cause of action itself.

[34] In this particular case, the delay in commencing the general protections claim was due to a belated realisation that the Applicant's unfair dismissal claim was likely to fail because of a jurisdictional requirement. That itself is not exceptional nor, in my view, even particularly remarkable. That is not a criticism of Ms Jordan, who is not legally trained, let alone in the nuance of the types of application that might be made to challenge a dismissal. More generally, there are many cases run before the Commission where a dismissal claim fails for a jurisdictional issue but this does not mean that (in the absence of exceptional circumstances) an Applicant can commence a different claim on the basis that, had they have known of the jurisdictional difficulties earlier, a different approach would have been taken.

[35] I do not consider that the reasons for the delay in commencing her application are factors supportive of a finding of "exceptional" circumstances.

Section 366(2)(b) - action taken by the Applicant to dispute the dismissal

• [36] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the Applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[8]

[37] Ms Jordan commenced an unfair dismissal action and did so within time. I am satisfied that she had taken action to dispute her dismissal, although her challenge was not (until 21 June 2023) reliant on the general protections provisions of the Act. Due to the time required by the Commission to process the initial unfair dismissal claim prior to its withdrawal, the employer was not alerted to the fact of that claim until the general protections claim was commenced, however.

[38] Ms Jordan's initial challenge to her dismissal is a factor that points slightly in her favour, although it is not a factor that I consider exceptional, whether on its own or with any other factor.

Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)

[39] In all the circumstances, I do not find that any material prejudice would be suffered by the employer if an extension of time were granted.

Section 366(2)(d) - the merits of the application

[40] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.

• [41] It is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)"[9].

[42] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.

[43] I consider that the merits of the application tend against a finding of 'exceptional circumstances' although, noting that the Applicant is unrepresented and at the early stage of her claim, it is not a matter I place great weight upon.

Section 366(2)(e) - fairness as between the Applicant and other persons in a similar position

[44] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances?

[45] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [46] 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.[10] 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.[11]

[47] I have already set above my observations in respect of the specific factors that I must take into account. When having regard to all of the matters listed at s.366(2) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute, whether taken individually or in combination. There are no other matters that I am aware of that would otherwise point to a conclusion of "exceptional circumstances".

• [48] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. Ms Jordan's application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[12] to this effect will be issued in conjunction with this decision.

[2] [2014] FWCFB 6660 at [22]; see also Hambridge at [32] - [33].

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

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

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

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[12] PR764880.

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