The attached document replaces the document previously issued with the above code on 18 July 2019.

[2019] FWC 5009

Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - application made out of time - request for an extension of time

[1] Ms Deewan (the Applicant) lodged an Application (Application) pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) alleging that she was dismissed by BCentral Constructions Pty T/A BCentral (the Respondent) in contravention of the Act's general protections provisions.

[2] Section 366(1) of the Act provides that an Application made pursuant to section 365 of the Act must be lodged within 21 days after the dismissal took effect. The 21 day period commences on the day following the date of dismissal.

[3] The dismissal date was initially in dispute. The Applicant stated in her Application that her dismissal took effect on 8 March 2019. However, the Respondent initially disputed this by stating the Applicant was dismissed on 21 February 2019. In their more recent submissions the Respondent has conceded that the Applicant's last day of employment was

8 March 2019. As the Application was lodged on 4 April 2019, the Application was filed 6 days outside of the statutory 21 day period.

[4] Therefore it must be determined whether exceptional circumstances existed for the Fair Work Commission (FWC) to allow a further period for filing under section 366(2) of the Act.

[5] The Respondent did not consent to participate in a conciliation prior to the determination of whether the Applicant should be granted a further period in which to make her application. Directions were issued requiring the Applicant to file a statement setting out the basis for the submission that there were exceptional circumstances justifying the grant of a further period in which to make her application, by 4:00pm on Tuesday, 21 May 2019. The Respondent was directed to file and serve any material in relation to the matter by 4:00pm on Tuesday, 28 May 2019. The Applicant and Respondent were directed to the FWC's guidance material for "Applicant's outline of argument: Extension of time" and "Respondent's outline of argument: Extension of time".

[6] The matter was listed for a jurisdictional hearing on Tuesday, 11 June 2019 by telephone.

[7] The Applicant commenced employment with the Respondent on 14 March 2018 as a Development Manager.

[8] The Applicant submits she noticed a change in the Respondent's attitude towards her following another employee of the Respondent returning from parental leave in December 2018. The Applicant submits that the Respondent:

• began demanding increasing volumes of work within an unrealistic timetable;

• began asking the Applicant to do tasks that had no relationship to her job description and became irritated when the Applicant objected; and

• ceased providing the Applicant with her payslips from 29 January 2019.

[9] On 21 February 2019 the Applicant was notified via email (the termination email) that her employment was terminated with two weeks' notice, with the dismissal taking effect on

8 March 2019. The Applicant confirmed receipt of the termination email.

[10] The termination email outlined an agreement for the Applicant to take off the week commencing 25 February 2019 and return to the office for the week commencing

4 March 2019.

[11] On 4 March 2019, the Applicant advised the Respondent via email that she would be taking the week commencing 4 March 2019 as carers leave.

[12] The Respondent advised the Application that they had expected the Applicant to be at work that week, and they were unsure if the Applicant had any leave owing. The Applicant did not attend work for the week beginning 4 March 2019 and the Respondent has submitted that it treated the week as unpaid carers leave.

[13] The Applicant submits that her dismissal constituted adverse action taken by the Respondent on the basis that the Applicant exercised her workplace right to request her pay slips, to make inquiries in relation to tasks she had been asked to perform outside of her job role, and to request and take personal leave to care for her ill father

[14] The termination email states that the Applicant's position was made redundant. The Respondent has submitted that issues regarding the Applicant's work performance were omitted from the termination email "out of kindness," though maintains that such issues contributed to the "workload issues."

[15] In determining whether the FWC is satisfied that there are exceptional circumstances to allow a further period of time it refers to the relevant statutory provisions and to matters of precedent before the courts and the FWC to determine whether there are exceptional circumstances in the Applicant's case.

[16] Section 366(1) of the Act provides that an application under s.365 (a general protections application) must be made:

"(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2)."

[17] Section 366(2) of the Act sets out the circumstances in which the FWC may grant an extension of time as follows:

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

[18] The Full Bench of the then Fair Work Australia in the matter of Nulty v Blue Star Group considered the meaning of exceptional circumstances as follows:

"In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare...

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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation."[1]

[19] The test of exceptional circumstances establishes a 'high hurdle' for an applicant to overcome for an extension to be granted.[2]

[20] A decision to extend time under s.366(2) involves the exercise of discretion by the FWC.[3]

[21] Whether exceptional circumstances exist requires consideration of all the relevant circumstances.[4] I will consider each of these matters in turn.

s.366(2)(a) - The reason for the delay

[22] The FWC must consider the reason for the delay. An absence of an explanation for part of the delay may weigh against an extension being granted, while a credible explanation for the entirety of the delay may weigh in favour of an extension being granted. It is important to note that while reason for delay is a factor that must be considered, it is not determinative and consideration must be given to all relevant factors and assigning appropriate weight to each.[5]

1. Lack of knowledge of workplace rights due to the Respondent's failure to provide such information or provide a written contract of employment

[23] On the evidence before the FWC, I am satisfied that the Applicant was provided with and signed a letter of engagement setting out the terms and conditions of the Applicant's employment on 8 March 2018, prior to commencing employment with the Respondent.

[24] The Applicant submits that the Respondent failed to give her the Fair Work Information Statement when she commenced employment. As per the s.125 of the Act, employers are required to give every new employee a copy of the Fair Work Information Statement before, or as soon as possible after, they start a new job.

[25] However I do not accept that, even if the Respondent failed to provide the Applicant with a copy of the Fair Work Information Statement, this alone supports a finding that there are exceptional circumstances to grant an extension of time.[6] Ignorance of the statutory timeframes in which to lodge an application with the FWC in itself is not sufficient to justify an extension of time.[7]

[26] I am not satisfied that this is an acceptable reason for the delay, but this is otherwise a neutral consideration in the overall assessment of this criterion.

1. Caring for father overseas

[27] The Applicant claims that she was required to care for her father overseas from

4 March 2019 to 12 March 2019.

[28] In Shah v Little Devils Childcare Pty Ltd T/A Dorothy Avenue Childcare Centre,[8] the Applicant lodged an unfair dismissal application 13 days outside of the statutory timeframe. In considering the reasons for the delay, the presiding Deputy President considered the Applicant's submission that one of the reasons for the delay was because she was overseas caring for her mother and had very limited access to the internet.[9] The Deputy President considered that this was not an acceptable or credible explanation for the delay, noting that the Applicant had access to family members with smart phones and computers, had access to a home phone, accessed Facebook on a number of occasions while overseas and could have asked her husband in Australia to lodge an application on her behalf.[10] The Deputy President found that the Applicant made no effort to try to lodge her application while she was in India, provided no acceptable explanation for the failure to lodge her application immediately upon her return to Australia and did not provide an acceptable explanation for the whole period of delay.[11]

[29] Again, based on this authority, I am not satisfied that this is an acceptable reason for the delay, but this is otherwise a neutral consideration in the overall assessment of this criterion.

1. Lack of funds due to Respondent's failure to pay entitlements on termination and to provide a Separation Certificate

[30] The Applicant has submitted that she had an unexpected lack of funds due to the Respondent's failure to pay her entitlements on termination and provide a Separation Certificate. The Separation Certificate was subsequently provided by the Respondent on

13 March 2019.

[31] On 28 March 2019, the Applicant sent a letter of demand to the Respondent seeking payment for the first week of the notification period from 25 February to 1 March 2019, and payment for personal leave taken from 4 March 2019 to 8 March 2019.

[32] On 8 April 2019, the Respondent replied to the letter of demand agreeing to pay one week of paid leave in good faith for the period 25 February 2019 to 3 March 2019 and annual leave owing (a total of $1,751.50). The Respondent did not agree to pay personal leave for 4 March 2019 to 8 March 2019 on the basis that the Applicant did not provide prior notification, make an application or obtain approval for this leave in circumstances where the Applicant had exhausted her personal leave entitlement and did not provide any supporting documentation for the purposes of taking carers leave. The Respondent remitted this final payment to the Applicant in May 2019.

[33] Regardless, I note that it was open to the Applicant to request a waiver for the application fee and in fact the Applicant did request a waiver for the general protections application which was granted by the FWC.

[34] In Du v University of Ballarat,[12] the Full Bench considered that "it is not out of the ordinary course, unusual, special or uncommon for employees whose employment has ceased to not be aware of the law and to be unable to pay for advice or afford legal costs." The Full Bench noted that there are resources available to employees, including on the FWC's website, regarding making an application and obtaining a waiver of the filing fee.[13]

[35] This is again a neutral consideration under this criterion.

1. Misunderstanding of advice received regarding which form to be lodged with the FWC

[36] On 28 March 2019, the Applicant lodged an unfair dismissal application at the FWC. At some point prior to the application being lodged, the Applicant sought advice from JobWatch, a telephone information service providing advice to employees about their rights at work. However the Applicant submits that the advice received did not specify which form she should lodge.

[37] I accept that the Applicant filed an unfair dismissal application with the FWC within the relevant 21 days statutory timeframe.

[38] The Applicant has referred to the case of Lane v Kangaroo Island Dive & Adventures Pty Ltd.[14] In that matter, the Applicant lodged an application under s.773 of the Act within time. The Applicant subsequently became aware that s.773 was not available in the Applicant's situation during a conference held on 15 April 2010.[15] The parties noted that the statutory timeframe for lodging an application under s.365 expired on 9 April 2010. The Respondent agreed not to oppose an extension of time on the basis that any s.365 application would be made on or before 19 or 20 April 2010.[16] The Applicant then sought to lodge an application under s.365 on 21 April 2010.[17]

[39] Senior Deputy President O'Callaghan considered that the Applicant presented acceptable reasons for the delay, noting that he did not become aware that the incorrect application had been lodged until 15 April 2010, and that the period from 15 April 2010 to either 19 or 20 April 2010, and the additional one day period to 21 April 2010, was acceptable in that the Applicant should reasonably be allowed an opportunity to access legal advice before filing the second application.[18]

[40] In Pellicaan v Cooper Civil,[19] the Applicant lodged an unfair dismissal application within the relevant statutory timeframe, having been terminated on 3 October 2018 and lodging the application on 10 October 2018. During a conciliation conference on 21 December 2018, the Applicant submitted that he became aware that a general protections application was a more appropriate action.[20] The Applicant submitted that he immediately booked an appointment with a solicitor on 14 January 2019 for the purpose of filing a general protections application and that this was the earliest possible appointment due to the holiday period.[21] The Applicant lodged his general protections application on 16 January 2019.[22] In that matter, I found that the Applicant had an explanation for reasons for the delay during the entire period of the delay.[23]

[41] Applying the reasoning of the above authorities, this would weigh in favour of allowing the Applicant an extension of time to file her application.

1. Delay by JobWatch in advising that the wrong form had been lodged and belief that the unfair dismissal application could be substituted with the correct form

[42] The Applicant submits that she forwarded a copy of the application lodged with the FWC to JobWatch on 28 March 2019.

[43] On 2 April 2019, the Applicant submits JobWatch advised her that she had used the incorrect form. It was the Applicant's understanding of JobWatch's advice that she could substitute the unfair dismissal application for a general protections application because the unfair dismissal application was filed within 21 days of her dismissal.

[44] The Applicant submits that she telephoned the FWC on 2 April 2019 and was advised that she could lodge the second application and discontinue the unfair dismissal application.

[45] On 4 April 2019, the Applicant withdrew her unfair dismissal application and lodged an application for a general protections claim involving dismissal. This application was lodged six days outside of the 21 day statutory timeframe.

[46] The Applicant submits that, as she believed her application could simply be substituted for the unfair dismissal application that had been filed, she was not aware of any potential issues if she did not file it on the same day that she had been advised that the wrong form had been lodged. Representational error is generally an established reason for allowing an extension of time.

1. Lack of proficiency in formal legal proceedings and related written English

[47] The Applicant has submitted that her lack of proficiency in formal legal proceedings and related written English was a reason for the delay.

[48] The Respondent submits that the Applicant presented herself to the company as being proficient in English during her interview.

[49] From evidence available to the FWC including a copy of the Applicant's curriculum vitae, I am satisfied that, though the Applicant may not have had experience in legal proceedings, her English skills are capable. Regardless, I do not consider that this factor alone constitutes exceptional circumstances to grant an extension of time.[24]

1. Offer of part time work by the Respondent

[50] The Applicant submits that the Respondent represented to her that she would have ongoing part time work. The Applicant submits that, by the time she realised that the Respondent did not intend to offer her part time work; time to file an application had almost expired. The Applicant has not indicated when she purported to realise that the Respondent would not offer her any ongoing work.

[51] The Respondent has conceded that a verbal offer of causal part time work was made to the Applicant, however this offer was withdrawn after the Applicant failed to fulfil her work obligations during the notice period. It is not clear on the information provided by the Respondent whether withdrawal of this offer was communicated to the Applicant.

[52] Regardless, I consider that it would have been apparent to the Applicant reasonably soon after the date her dismissal took effect that the Respondent no longer intended to offer her any ongoing work. I do not accept that this is an acceptable reason alone for allowing an extension of time.

1. Applicant's health following notice of termination

[53] The Applicant has submitted that she became distressed and unwell upon receiving written notice of termination of her employment, and sought 'psychological counselling'. The Applicant has not provided any evidence of any medical treatment received.

[54] In Ms Susan Rose v BMD Constructions Pty Ltd,[25] the Applicant stated that she was shocked and traumatised and provided a medical certificate which stated that the Applicant "tells me she was dismissed from her job in September 2010 and has reported to me this has produced anxiety/depression".[26] Commissioner Roe held that "it is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time."[27]

[55] In the absence of any supporting medical advice, I do not consider that the Applicant has provided sufficient evidence to establish that she was unable to lodge an application due to a decline in health following notice of termination.

[56] On the evidence before the FWC, I am not satisfied that the Applicant's lack of knowledge of her workplace rights, lack of funds, lack of proficiency in formal legal proceedings and related written English, the Respondent's initial offer of part time work, and the Applicant's health following notice of termination are acceptable reasons for the delay. These submissions, I consider, are neutral ones for the Applicant in proving her case under this criterion.

[57] However, on the basis that the Applicant did lodge an unfair dismissal application in time and on the basis that her legal representation was remiss in not filing the general protections application immediately after it realised that it was the incorrect application to file, I accept that the Applicant did have a valid reason for the delay. On this basis, I can conclude that this criterion overall weighs in favour of granting an extension of time.

s.366(2)(b) - Any action taken by the person to dispute the dismissal

[58] Action taken by an applicant to contest the termination, other than by virtue of the Application will be relevant and may weight in favour of granting an extension of time.[28]

[59] According to the Applicant, when advised of the Respondent's decision to terminate her employment, she complained that she had been treated unfairly and that there was no valid reason for her termination as she had not been counselled about her performance or given any warning. The Applicant submits that, after she objected, the Respondent offered her part time employment and the Applicant considered this a reasonable compromise.

[60] The Applicant has referred to the decision of Senior Deputy President Richards in Wilson v Woolworths.[29] The Applicant in that matter attempted to address matters by way of direct communication with the Respondent after his employment had been terminated.[30] Senior Deputy President Richards considered that displayed "an intention to contest the application and to demonstrate to the Respondent that despite the decision to terminate his employment, the issues in contest had not reached finality and the Respondent was therefore on notice that the matters would be contested in the future."[31]

[61] Insufficient information has been provided to the FWC to determine when the Applicant first sought advice from JobWatch, however I accept that the Applicant lodged an unfair dismissal application with the FWC on 28 March 2019, which was within the requisite time period.

[62] The Respondent submitted that the Applicant did not dispute the dismissal and accepted the terms on 21 February 2019.

[63] On the evidence before the FWC, I find that, the Applicant did take some limited action to dispute the dismissal. This criterion is a neutral consideration.

s.366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

[64] Prejudice to the employer will go against the granting of an extension of time. Mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[32]

[65] The delay in filing was six (6) days.

[66] The Applicant submits that there is no prejudice to the Respondent by reason of the delay. The Applicant has sought to rely on Hartig v Form 2000 Sheetmetal Pty Ltd.[33] In that case, the Respondent sought to argue that the general protection application lodged out of time raised new issues that were not relied on in the earlier unfair dismissal application.[34] Commissioner Ryan held that "prejudice cannot be considered to flow against the employer merely because the grounds of an application under s.363 are different from the grounds relied upon in an application under s.394."[35]

[67] The Applicant has also sort to distinguish Burke v Department of Agriculture, Fisheries and Forestry - Australian Quarantine and Inspection Service,[36] and submitted that there was not a lengthy delay in the present matter as there was in that case (where the application was filed 377 days out of time and Commissioner Simpson accepted that there was prejudice to the employer due to the significant delay).[37]

[68] The Respondent has conceded that, other than disruption to its business, there was no prejudice to the Respondent, including prejudice caused by the delay.

[69] I am satisfied that there would be no undue prejudice to the Respondent should I be of the mind to allow an extension of time.

s.366(2)(d) - The merits of the application

[70] With respect to the merits of an application for an extension of time, the FWC is not generally in a position to make findings of fact on a contested factual matrix and where evidence from both parties is yet to be fully adduced.

[71] The Applicant submitted that Respondent took adverse action against her in terminating her employment, amongst other things, because she exercised her workplace right to request her pay slips, to make inquiries in relation to tasks she had been asked to perform outside of her job role, and to request and take personal leave to care for her ill father.

[72] The Respondent submitted that the Applicant was employed in a permanent full time position and that her employment was terminated on the basis of redundancy contributed to by her poor performance.

[73] On balance therefore and without the possibility at this stage of closer examination as to the exact allegations of the Applicant and the response of the Respondent to those allegations, this is considered a neutral factor.

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

[74] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past.[38]

[75] Submissions made by both the Applicant and the Respondent in relation to this factor appear to have misunderstood the criterion.

[76] This criterion may relate to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past.[39] I do not understand the Applicant to assert that there are any other cases currently before the FWC of a similar kind, or past cases of a similar kind that have been decided. This is a neutral factor in my determination.

[77] For the reasons given above, I am satisfied, on balance, that there are exceptional circumstances taking into account the matters in s. 366(2) of the Act such that an extension of time should be granted. The matter will be referred back to the General Protections Team at the FWC for further allocation. I so order.

[1] Nulty v Blue Star Group [2011] FWAFB 975

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

[3] Halls v McCardle and Ors [2014] FCCA 316.

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [39].

[6] Annear v Centaurus Investments Pty Ltd t/a Bayside Day Procedure Centre [2015] FWCFB 5263 at [20].

[7] Rose v BMD Constructions Pty Ltd [2011] FWA 673 (Roe C, 1 February 2011).

[8] [2017] FWC 1887

[12] [2011] FWAFB 5225.

[14] [2010] FWA 3939 (unreported, O'Callaghan SDP, 25 May 2010).

[19] [2019] FWC 2553.

[24] Tolj v Assetlink Services Pty Ltd T/A Assetlink [2012] FWA 5979.

[25] [2011] FWA 673

[28] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [300].

[29] Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP< 15 April 2010) at [24] to [29].

[33] [2010] FWA 7836 (unreported, Ryan C, 8 October 2010).

[36] [2011] FWA 1386 (unreported, Simpson C, 4 March 2011).

[38] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].

[39] Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP< 15 April 2010) at [24] to [29].

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