Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 24 January 2023, Miss Emma Hames (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect,[1] or within such further period as the Commission allows.[2] The Respondent, IWM (PBH) Pty Ltd, objected to the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act.

[2] In her application, the Applicant says her dismissal took effect on 16 December 2022. The Respondent says the Applicant commenced work on 15 November 2022 and her dismissal took effect on 14 December 2022. However, the letter of termination referred to a termination date of 16 December 2022, and at hearing the Respondent revised its position and confirmed that this was the case.

[3] Having noted that the Act requires the application to have been made within 21 days of the dismissal taking effect, s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 366(2)(a)-(e) are considered.

[4] Before the hearing, directions were issued to the parties providing detailed information of what was required of both. The parties filed bare responses, with little to no evidence addressing the factors in s 366(2)(a)-(e). In light of the Applicant indicating in the materials filed that she had limited accessibility to file documents electronically, I decided it was appropriate to conduct a hearing. In the absence of witness statements and a paucity of evidential material before me, I allowed both parties to provide viva voce evidence.

[5] Briefly stated, I have found that the Applicant's employment ended on 16 December 2022. It follows that the Applicant's application was made 18 days outside of the statutory period. To have satisfied s 366(1)(a) of the Act, the application was due on 6 January 2023.

[6] Having considered the factors in s 366(2) of the Act, I have found that the circumstances are exceptional, and I consider it fair and equitable that time should be extended. I therefore grant an extension of time under s 366(1)(b) to 24 January 2023.

• [7] As observed, the Applicant commenced employment with the Respondent on 15 November 2022,[3] and her employment was terminated on 16 December 2022, within the probationary period.[4]

[8] The letter of termination of 16 December 2022, set out:

This letter confirms the termination of your employment with Perth Bin Hire as per our discussion on 16th December 2022. You agreed the termination of your employment is effective from 16th December 2022. Your final pay includes the hours worked for the week ended on 16th December 2022, and any unused annual leave. Also included is one week's pay in lieu of notice period. It will be processed on Monday 19 December 2022.

[9] The Respondent submitted that in the first month of the Applicant's employment, she attended work 13 days out of the 24 work days. The Respondent further submitted that it made regular contact over the phone or by text to ascertain whether the Applicant was going to come into work.

[10] According to the Respondent, on 14 December 2022, the Applicant did not present for work, so her Manager called, and she informed the Respondent that she was not coming back to work and hung up. The Respondent asserts that the Applicant rang the office on 16 December 2022, requesting to speak to the Payroll Department. The Respondent submits that the Payroll Department spoke to the General Manager and discussed that the Respondent would accept the Applicant's resignation and would end the employment relationship. It would appear that as a gesture of good will, the Respondent paid the Applicant in lieu of a notice period of one week's pay.

[11] The Applicant denies that she resigned from her position. The Applicant states that she brought up a safety concern about the soundness of a truck. The Applicant says that on a Wednesday morning, she refused to work if required to drive that same truck. After raising the safety complaint, the Applicant says she had no communication from work.

[12] The Respondent denies that the Applicant's complaint about safety gave rise to the end of the employment relationship.

[13] At hearing, the Applicant contended that she had initially made her application within time, but the forms filed showed as blank pages on their receipt. The Applicant was unable to direct the Commission to those forms as part of her evidential case - noting that she had difficulty attaching documents to emails when using her phone. However, in her written submissions to the Commission, the Applicant referred to the following:

As you can see im doing this myself on my phone and i do not have a way to attach said emails. I have limited tech knowledge.

[14] Enquires were made with the Commission's registry in respect of the Applicant's assertion. The following business records were uncovered by the Client Services Manager of the Commission:

a) confirmation of Application Submission - Form F2 - reference number QQQ3LJ | received 11 January 2023 | online lodgement where s 394 was selected however blank F8 & F80 were attached;

b) confirmation of Application Submission - Form F2 - reference number QQQ3LJ | sent 13 January 2023 | advising that the online lodgement attempt failed;

c) application | received 21 January 2023 | blank versions of the F8 & F80 received;

d) RE Application | sent 24 January 2023 | advising that the blank versions of F8 & F80 should be completed and returned ASAP; and

e) Emma Hames | received 24 January 2023 | F8 & F80 via JPEG.

[15] By email dated 13 January 2023, Client Services of the Commission informed the Applicant:

The Fair Work Commission received the attached online lodgement from you on Wednesday 11 January 2023.

There was not a completed application form attached to your lodgement, both documents were blank.

The Fair Work Commission can only start dealing with a case after we receive a completed application on an approved form (as per Rule 14 of the Fair Work Commission Rules 2013).

To make an application to the Commission you need to complete the relevant form and lodge it by email, fax or by post.

There are strict time limits for some application types. Some applications are dismissed if they aren't lodged within the time limits.

You can contact us for help by return email or on 1300 799 675.

[16] In respect of paragraph [14(c)] above, the email dated 21 January 2023 from the Applicant to the Commission, read as follows:

Attached is a copy of my F8 form and my application for financial hardship.

Before Christmas I contacted fairwotk ombudsman who advised me to contact Circle Green, I did I went thru the form with them, asked if I needed to anything they said no, someone will contact me if they needed any extra info.

Due to public and Christmas holidays I could not get in contact with circle green until Monday 9 January 2023 they made phone appointment 11 Jan 2023,

I was then told that they didn't lodge application and I have to end of the day to lodge claim myself.

Due to these events I was put into extreme hardship, homelessness, which is another issue as I only have my phone to do this with.

[17] On 24 January 2023, a Case Manager of the Commission emailed the Applicant and informed her of the following:

We note that the attached Applications, F8 Application and the F80 Fee Waiver application, are blank. Please fill in the Applications, and email them back as soon as possible.

If you are unable to physically sign the forms, then it will be sufficient for you to type your name in the signature filed. Please make sure to complete all fields in the signature box.

[18] On that same day, the Applicant emailed the Commission screenshots of her application - the files received by the Commission as 'JPEGs'.

[19] Consideration now turns to whether to extend the 21-day period within which the Application was to be brought.

[20] In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s 366(2). 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:

(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 similar position.

• [21] It has been said that proceedings not commenced in time should not be entertained.[5] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[6]

• [22] In decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[7] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [23] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said 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.[8] 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.[9]

[24] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[10]

• [25] In Pottenger v Department of Caffeine,[11] the Deputy President observed that 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,[12] or a reasonable explanation.[13]

• [26] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[14] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though, it is a question of degree and insight.[15]

[27] I am persuaded in this case that the Applicant was, as she contended, dealing with circumstances of homelessness from the date of her dismissal up until filing her application. In support of her contention that she was experiencing homelessness, the Applicant provided documentation from Centrelink that showed, as of 2 January 2023, that her address was 'No Fixed Address MIDLAND WA 6056'.

[28] In her email to the Commission dated 21 January 2023, the Applicant spoke of having contacted the Fair Work Ombudsman prior to Christmas and having been advised to contact Circle Green Community Legal, a legal provider. At hearing, the Applicant said that she had contacted Circle Green prior to Christmas and had formed the impression that they would submit her application.

[29] The Applicant gave evidence that due to public and Christmas holidays, she could not get in contact with Circle Green until Monday, 9 January 2023. At that time, Circle Green made a telephone appointment for 11 January 2023.

[30] It is evident that having had the appointment with Circle Green on 11 January 2023, the Applicant attempted to file her application online that same day - albeit blank application forms were received. It is thereafter evident that the Applicant made several attempts to file the forms online, albeit the Commission continued to receive blank forms. Further, it is observed that there was a two-day delay (11 January 2023 to 13 January 2023) in the Commission responding to the receipt of blank application forms, followed by a further three-day delay (21 January 2023 to 24 January 2023) in the Commission responding to the further receipt of blank application forms.

[31] On balance, and in the circumstances of this particular case, I find the reason for the delay is an acceptable one - such that it is plausible.

[32] I am of the view that the Applicant spoke candidly in respect of the circumstances surrounding the delay in making her application.

[33] I have found that the Applicant was experiencing homelessness and as such it proved challenging for the Applicant to file her application within the statutory period prescribed. Notwithstanding she had endeavoured to seek legal advice about recourse in a timely manner. Thwarted somewhat by the Christmas period in following up that advice and ascertaining whether her application had been filed, she contacted Circle Green three days outside of the statutory period. There was a delay in securing an appointment with Circle Green until 11 January 2023. On receipt of its advice to file her application, she did so promptly. However, given her issues with technology and her dependency on only a mobile phone, it proved difficult to attach the complete versions of the requisite forms. Direct evidence supports this was the case. Notwithstanding, the Applicant persisted. Further delays fell at the feet of this Commission - which understandably, given the volume of applications, is unlikely to provide a same day turn around in informing applicants about issues with their applications.

[34] The totality of the evidence in this respect weighs toward a finding of there being exceptional circumstances.

[35] There is no evidence before me to suggest that the Applicant took action to dispute the dismissal. However, it appears odd that the letter of termination refers to the parties having agreed to the termination of employment and that there is also an assertion by the Respondent that the Applicant resigned - and the resignation was accepted. The Applicant denies that she resigned. In all the circumstances, I consider the factor neutral.

[36] I cannot identify any particular prejudice that the Respondent would face if an extension of time is granted.

[37] However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. In the present case, I consider this to be a neutral factor.

• [38] In Telstra-Network Technology Group v Kornicki,[16] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[17]

• [39] Evidence on the merits is rarely called at an extension of time hearing. Whilst appreciative of the Respondent's contentions about the Applicant's absences from work, and observing there is disagreement between the parties as to whether there was a resignation or the dismissal was agreed, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[18] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. I therefore consider the factor neutral - observing that the substantive application is not without merit, based on the materials before me.

3.5 Fairness as between the applicant and other persons in a similar position

[40] The parties did not draw my attention to any 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. I consider this to be a neutral consideration in the present matter.

[41] The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.

[42] Having regard to all of the matters that I am required to take into account under s 366(2), and for the reasons provided, I am satisfied that the requisite exceptional circumstances exist. In my view, the circumstances of this case are exceptional when considered together and it follows that I consider it fair and equitable to extend the time in which the Applicant could make her application.

[43] Should the Respondent continue to press its contention that the Applicant resigned or otherwise agreed to end the employment relationship, the matter will be programmed to deal with this jurisdictional objection.

[1] Fair Work Act 2009 (Cth) s 366(1)(a).

[2] Ibid s 366(1)(b).

[3] Form F8 - General protections application involving dismissal, [1.1].

[4] Form F8A - Response to general protections application, [2.2].

[5] Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989, [20].

[7] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[10] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38] (Stogiannidis) (emphasis in original).

[11] [2018] FWC 3403.

[12] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[13] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[16] (1997) 140 IR 1.

[18] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37] - [38].

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