Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time allowed.

[1] On 5 December 2019, Mr Glenn Charles Baughen lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Bawinanga Aboriginal Corporation (BAC). BAC denies that Mr Baughen was dismissed; it is alleged that Mr Baughen's 1-year fixed term contract came to an end. However, Mr Baughen submits that he was engaged on a 2-year fixed term contract and his employment was terminated on 28 October 2019. BAC also state that the application is out of time by 20 days and should be dismissed.

[2] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

[3] The period of delay in filing the application is contentious because the Respondent submits the termination occurred on the day the Applicant received his letter of termination, the Applicant submits his termination occurred on the following Monday when he was instructed to leave the premises, yet both parties agree that the Applicant was subject to a fixed term contract, albeit the period of that fixed term contract is in dispute.

[4] BAC sought leave for legal representation, Mr Baughen did not object to the request for representation, and following consideration of the arguments, I permitted the representation.

[5] Mr Baughen submits that he began working for BAC on 16 November 2018 on a 2-year contract. On 25 October 2019 he was informed that his contract would not be renewed resulting in his termination of employment on 28 October 2019.

[6] Mr Baughen submits he filed an unfair dismissal application on 12 November 2019, within the 21 statutory time frame and withdrew that application at the time this application was made.[1]

[7] Mr Baughen submits he exercised his workplace rights on a number of occasions between 16 November 2018 and 4 October 2019.

[8] On or before 24 May 2019, Mr Baughen submits that he raised concerns with his supervisor regarding correct rates of pay, including pay for public holidays, and on 2 October 2019, while driving a company vehicle Mr Baughen submits he received an infringement for driving an unregistered and uninsured vehicle. Mr Baughen followed up with his employer seeking re-imbursement of the fine. Mr Boughen contends that the contravention of the Act by the Respondent relates to:

• s.340 protection of workplace rights[2]

[9] Mr Baughen alleges the adverse actions for exercising his workplace rights include:

• denial of a pay rise and correction to the payment of public holidays which he submits is inconsistent with his contract of employment;

• on 25 October 2019, Mr Baughen was advised that his fixed term contract would not be renewed and that he would be paid until 12 November 2019. Further, he submits that this decision is allegedly unlawful because he was engaged under a 2-year fixed term contract.

[10] BAC denies the termination is due to a contravention of workplace rights. BAC submits that Mr Baughen was not dismissed from his employment and there was no adverse action taken by BAC.

[11] BAC submits Mr Baughen was engaged subject to a fixed 1-year contract of employment and it came to an end.

[12] In or about late October 2018 BAC offered to Mr Baughen a 2-year fixed term contract as a plumber. On 3 November 2018 BAC received a number of questions regarding the offer of employment including whether BAC would consider a 1-year contract.

[13] On 5 November 2018 BAC's Human Resources Manager responded that a 1-year contract could be agreed, but BAC would only pay for fuel for vehicle relocation and no additional charges. BAC submits that Mr Baughen accepted the 1-year offer via telephone call with Mr Conway Jones, an employee of BAC. It also submits that on 24 November 2018, Mr Baughen provided to Mr Jones his signed contract of employment which had a handwritten notation "1 year" next to an arrow alongside the sentence referring to the term of the agreement.

[14] BAC submits that on 7 December 2018, Mr Baughen met with the HR Manager to complete paperwork and she asked him if he was sure that he wanted a 1-year contract. It is submitted that Mr Baughen confirmed the position because he and his partner were unsure as to whether they wanted to stay in Maningrida, because he thought the pay was low relative to what he could earn in the mines. BAC submits the HR Manager had Mr Baughen initial the contract where it was amended to 1 year.[3]

[15] In relation to the pay rise, BAC submit clause 7 of the contract of employment specifies that increases in remuneration are at the sole discretion of the CEO. On 4 June 2019, Mr Baughen emailed his supervisor requesting a pay review. Late on 4 June 2019, the supervisor responded advising that as the role had not changed there would be no increase at that time. The HR Manager who was copied into the email also responded that the salary was appropriate for the role and that a 2% increase would be processed in July. BAC submit that the decision of the CEO not to review the salary in June was not an injury as contemplated by s.342(1) of the Act.[4]

[16] BAC contend that enquiring about correct rates of pay is a workplace right, however, the failure to review Mr Baughen's salary is not related to his inquiry regarding correct rates of pay. BAC also submit that failure to review Mr Baughen's salary and the request to pay a traffic infringement are unrelated to the decision not to extend the period of employment and unrelated to his workplace right to inquire into his correct rates of pay.

[17] BAC further raised the jurisdictional objection on the basis that the application was lodged outside the statutory time limit.

[18] On 23 June 2020, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

[19] On 25 October 2019, Mr Baughen was handed a letter by the HR Manager which was signed by the CEO. This letter provides Mr Baughen with 2 weeks of notice which he is not required to complete. The letter further confirms his final day of employment is 11 November 2019, which is consistent with the argument that the contract is a 1-year fixed term. The letter also details arrangements for payment of outstanding entitlements, basic repatriation costs to Darwin and instructions on vacating BAC housing.

[20] I am satisfied that Mr Baughen's final day of employment was 11 November 2019.

[21] Mr Baughen's fixed term contract of employment stipulates the commencement date is 12 November 2018. Bringing Mr Baughen's employment to an end on 11 November 2019 is a satisfaction of his fixed term contract, should it be a 1-year contract as submitted by BAC. As already stated, Mr Baughen challenges that he signed a 1-year fixed term contract and submits he signed a 2-year contract.

[22] I also note that Mr Baughen did not commence his fixed term contract on 12 November 2018. In email correspondence filed by BAC, there was a request by Mr Baughen to amend the commencement date to Monday 19 November 2018. Correspondence from BAC confirms the change of date and a commitment to amend the contract. The contract submitted by BAC does not contain the agreed amended commencement date.

[23] I am satisfied that Mr Baughen's employment was terminated on 11 November 2019, he filed his general protections application on 5 December 2019, therefore this application was filed 3 days after the 21-day statutory obligation to file applications.

[24] General protections applications involving dismissal must be made within 21 days.

[25] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(e) Fairness between the person and other persons in a like position

[26] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[5] where it was held that:

"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. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[6]

[27] I now turn to the Applicant's arguments for an extension of time in relation to each of the considerations of s.366(2).

[28] The general protection involving dismissal application was lodged with the Commission on 5 December 2019.

[29] Mr Baughen contends that his legal counsel advised him to withdraw his unfair dismissal application, which was filed within the 21 day time limit, and instead file a general protections application.

[30] Mr Baughen provided no explanation why the application was wrongly filed as an unfair dismissal application, its subsequent withdrawal, or the filing of the general protections' application. The remedy sought and the matters identified in the general protections' application are almost identical to those in the unfair dismissal application.[7]

[31] Mr Baughen's legal representative withdrew the unfair dismissal application on 2 December 2019 and filed the general protection application on 5 December 2019.

[32] The general protections application was signed by Mr Baughen's legal representative on 2 December 2019 but filed on 5 December 2019. There was no explanation for the late filing of an application even after signing on 2 December 2019. Had the application been filed on the same day it would have met the 21 statutory time limit.

[33] Mr Baughen submits he relied on legal advice for the withdrawal of the unfair dismissal and filing of the general protection application. It appears that Mr Baughen understood the difference between the 2 applications, and this is further evident by his statement "most employees are not well versed like myself with the runnings of the Fairwork commissions processes, and different jurisdictions".[8]

[34] In response, BAC disputed that the explanation satisfied exceptional circumstances. It further submitted that Mr Baughen's legal representative informed the Commission at the conference before Commissioner Spencer on 2 December 2019, that Mr Baughen was considering withdrawing the unfair dismissal application and filing a general protection application. It is submitted that Mr Baughen was given 48 hours to consider whether he intended to pursue the unfair dismissal application. BAC submit it did not consent to a late filing of a general protection application.[9]

[35] Mr Baughen relied on the advice of his legal adviser. Had his adviser filed the application on 2 December when it was completed and signed, the application would have been on time.

[36] It is also evident that the withdrawal of the unfair dismissal and late lodgement of the general protection application is attributable to the actions of Mr Baughen's legal representative. There is no evidence that Mr Baughen is to blame for its late filing.

[37] In this matter I find the reason for the delay is due to the failure of the legal representative to file the application on time. I note that Mr Baughen, instructed the Commission that he would represent himself at the extension of time hearing. It is also evident that Mr Baughen instructed his legal representative to cease to act on his behalf.

[38] Having regard to the submissions and evidence, I am satisfied that the Applicant demonstrated exceptional circumstances regarding this consideration. I do consider the reasons given for the delay weigh in the Applicant's favour.

[39] Mr Baughen submits he challenged his termination of employment when he received the letter of termination by advising his supervisors that he was engaged subject to a 2-year contract. His supervisor advised he would look into it. The following week when Mr Baughen came to work, he submits his supervisor informed him that he had to leave. Mr Baughen submits he did not receive any response in relation to the agreed time frame in his contract.

[40] Mr Baughen submitted in evidence copies of emails exchanged concerning the dispute over his contract and its termination.

[41] Based on the evidence by both parties, BAC was aware that Mr Baughen disputed his termination of employment.

[42] Consequently, this consideration weighs in Mr Baughen's favour.

[43] Mr Baughen asserts that granting an extension of time will not cause BAC disadvantage or unfairness because they knew he was disputing his termination of employment from the outset. He submits the departure of the two employees identified by BAC has limited effect on prejudice.

[44] BAC contend that it is prejudiced by the delay because a number of employees had ceased employment that would be required to give evidence concerning Mr Baughen's contract and the circumstances concerning his claims. BAC refer to two employees that had ceased employment.

[45] The two employees referred to by BAC may present some inconvenience, but their absence on my assessment of the individuals involved in the hiring, management and termination of employment is not paramount to this matter, as other employees of BAC including the CEO, HR Manager and other managers were either key decision makers and/or engaged with Mr Baughen directly.

[46] Consequently, I am not satisfied that BAC demonstrated prejudice, and in line with established precedent, even the mere absence of prejudice is an insufficient basis to grant an extension. This consideration does not weigh in BAC's favour.

[47] Mr Baughen submits he was engaged on a 2-year employment contract, and his employment was terminated after having completed 1 year. He further submits his termination of employment is an adverse action because he exercised his workplace rights. Those workplace rights concern inquiries regarding the review of his salary and the request for reimbursement of a traffic infringement because he was instructed to drive a company vehicle which was identified as unregistered by the police officer that issued the infringement.

[48] In addition to the workplace rights that Mr Baughen alleges to have exercised leading to the termination of his employment, he submits he made other complaints regarding his conditions of employment. Those complaints concern the payment of tool allowance, reimbursement of relocation expenses and reimbursement of accommodation expenses.

[49] In dispute is whether Mr Baughen was engaged subject to a 1 or 2-year fixed term contract. Mr Baughen denies the undated signature on the contract tendered by BAC is his. He submits his copy of the contract does not have the signature. The evidence tendered by the parties is in dispute and merit has not been tested.

[50] The contract of employment was not amended to reflect the agreed start date, the signature on the contract tendered by BAC which is undated is disputed by Mr Baughen that it is his. It is also unhelpful that the sentence concerning the fixed term which was allegedly amended was not crossed out. These circumstances relied on by BAC are unsupportive of the Respondent's position.

[51] Provided factual evidence supports Mr Baughen's case that his contract of employment was a 2-year fixed term, he may have an arguable case that his contract was cut short because he raised workplace inquiries.

[52] In relation to the queries raised by Mr Baughen, the validity of those enquiries were not tested as part of these proceedings. However, whether there was any validity in the inquiries, is not necessary if it can be established that the exercise of a workplace right (querying employment conditions) resulted in adverse action. However, during the hearing sufficient submissions were made concerning the traffic infringement. BAC acknowledged that Mr Baughen was entitled to reimbursement because the fine was incurred while driving a company vehicle in the course of his work, which unbeknown to him, was not registered.

[53] On balance having considered the evidence and submissions, I find that merit is arguable and therefore this consideration is in Mr Baughen's favour.

Fairness between the person and other persons in a like position

[54] Both the Applicant and Respondent did not address this consideration satisfactorily. Consequently, I consider this to be a neutral factor in the present matter.

[55] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

[56] On balance of all the considerations, I am persuaded that Mr Baughen has substantiated exceptional circumstances for an extension of time.

[57] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter will be referred to conciliation.

Mr R. Gould and Ms I. Stonhill for the Respondent

[5] [2011] FWAFB 975.

[7] Applicant's Unfair dismissal application at Q 2.1 and general protection application at Q2.1.

[8] Applicant's outline of argument at Q1.

[9] Respondent's outline of argument attachment concerning Q 1d and 1e.

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