Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 18 October 2023, Glenn Murray Jones (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, 4lifeskills Inc, 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] It is uncontroversial that the Applicant's dismissal took effect on 20 September 2023 and that he had, before making his general protections application, made an unfair dismissal application in matter No. U2023/9873 on 10 October 2023[3] and discontinued that application on 13 October 2023.[4] The Applicant's unfair dismissal application was made within the 21-day statutory period. In respect to the Applicant's general protections application, it was made seven days late. It is observed that in the circumstances I considered s 725 of the Act bore no relevance to 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 Applicant requested a hearing and at the commencement of the hearing, the parties were informed of the factors the Commission considers when determining whether an extension of time should be permitted.

• [5] Having considered those factors in s 366(2) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 366(1)(b). Accordingly, the application is dismissed and an Order issues concurrently.[5]

• [6] From the materials provided, it appears that the Applicant commenced employment with the Respondent on 7 August 2023 as a support worker. He was engaged on a casual basis.

• [7] According to the Respondent, the Applicant's employment was terminated following a disciplinary meeting to discuss an incident where he was purportedly late attending a training course and was abusive to the third party training provider.

• [8] By email dated 21 September 2023, subject line 'Glenn Jones unfair dismissal.', the Applicant wrote to Ms Cook, Chief Executive Officer of the Respondent, expressing his concerns about the disciplinary process and ultimately his dismissal. Towards the end of his correspondence to Ms Cook, he wrote:

I do not and will not accept or tolerate this illegal gross display of misconduct and am commencing legal action to rectify this unacceptable situation.

I am sorry to have to do this but I've been left with no other option at this stage, and I have grave concerns about how many other good, honest, support workers have been treated this way in the past, and how many will be treated this way again in the future.

Legal documents will be forwarded to your organisation in due course.

• [9] By email dated 9 October 2023, the Applicant wrote to Ms Cook again advising:

I would just like to advise you that I am lodging my Unfair Unlawful dismissal application with the Fair Work Commission in Perth tomorrow, Tuesday the 10th of October 2023.

I am also considering contacting the NDIS Commission and will be seeking financial compensation through the Insurance Commission of Western Australia for lost income.

I have the support of my Doctor, Psychologist, local members of parliament, staff from APM Disability Support Services and many friends and acquaintances.

I am open to discussion and consideration of an agreeable out of court settlement, which could save us all a lot of time, expense and further stress upon myself.

I will be lodging my Unfair Unlawful dismissal application tomorrow regardless of any decision that you choose to make.[7]

• [10] The Applicant disagreed with the allegations that had been made against him and considered them to be fabricated and untrue.[8]

• [11] Consideration now turns to whether to extend the 21-day period within which the application was to be brought.

• [12] 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.

• [13] It has been said that proceedings not commenced in time should not be entertained.[9] 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.[10]

• [14] In the 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.[11] 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.

• [15] 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.[12] 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.[13]

• [16] 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.[14]

• [17] At the commencement of the hearing, the parties were referred to s 366(2) of the Act and the meaning of 'exceptional circumstances'. Both were invited to make further submissions in relation to the question of whether there were exceptional circumstances.

• [18] In Pottenger v Department of Caffeine,[15] 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,[16] or a reasonable explanation.[17]

• [19] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[18] 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.[19]

• [20] In his correspondence to Ms Cook on 21 September 2023, the Applicant placed the Respondent on notice that he was commencing legal action to rectify what he considered to be an unacceptable situation. The Applicant further informed the Respondent on 9 October 2023 that he would be making an unfair dismissal application the very next day.

• [21] In his Outline of Argument: Extension of Time document, the Applicant states that he made his unfair dismissal application within 21 days of when his dismissal took effect. This is correct, his application having been made on 10 October 2023.

• [22] The Applicant therefore attributed the delay in making his general protections application upon having first submitted the wrong application (the unfair dismissal application). However, the fact that the Applicant picked the wrong application to make does not provide plausible reason for the delay. Ignorance of the relevant legislative provisions and protections is not an exceptional circumstance. Further, the Applicant provides an unconvincing explanation as to why it took from 13 October 2023, the date he discontinued his unfair dismissal application, to 18 October 2023, to file the application now before the Commission for consideration.

• [23] The Applicant also attributes the delay in making his application on having waited for the Respondent to respond to his correspondence of 21 September 2023 and 9 October 2023.

• [24] In his email dated 21 September 2023, the Applicant informed the Respondent that 'legal documents would be forwarded to your organisation in due course'.[20] On that same day, Ms Cook responded, 'I will await the delivery of the legal documents to which you refer'.[21] The Applicant's email dated 9 October 2023, advised the Respondent that he was 'open to discussion and consideration of an agreeable out of court settlement, which could save us all a lot of time, expense and further stress upon myself.'[22] Whilst the Applicant may have been attempting to negotiate an outcome to his dispute that would negate the Commission's involvement, such negotiations did not preclude him from making his application to the Commission within the prescribed statutory period.

• [25] Insofar as it is relevant, there was no indication from the Respondent after the Applicant's dismissal or in the period of the delay, that showed the Respondent was interested in pursuing such option. It cannot therefore be suggested that the making of the application was delayed so as to not prejudice any negotiation on foot. Further, any belief or hope which the Applicant may have held about the possibility of settling the dispute did not provide an adequate excuse for delaying the lodgement of the application until 18 October 2023.

• [26] Another reason for the delay as advanced by the Applicant, was that of clinical depression and anxiety. However, there is simply no evidence to corroborate that he was so incapacitated from depression and anxiety that he was unable to make his application within the requisite period. It is common for employees to suffer shock and trauma because of dismissal from employment.[23] Further, it is evident that after his dismissal and in the period of the delay, the Applicant was not so incapacitated that he could not communicate with the Respondent to express his disappointment in the dismissal and to also suggest a negotiated outcome.

• [27] Shortly stated, there is a lack of a credible, acceptable, or reasonable explanation for the delay in the Applicant lodging his application, which weighs against the granting of an extension of time.

• [28] It is not contested that the Applicant lodged an unfair dismissal application on 10 October 2023 within the statutory time frame. It would appear that the Applicant disputed his dismissal in this respect.

• [29] There is also other evidence that shows that the Applicant took action to dispute his dismissal. In correspondence to Ms Cook dated 21 September 2023, it is apparent that the Applicant did not agree with his dismissal, disputed the legality of it and stated that he was commencing legal action to rectify what he considered to be an unacceptable situation.

• [30] The Respondent presses that the Applicant did not dispute his dismissal but in fact sent an email to Ms Cook dated 9 October 2023 in which he suggested that she might consider a payment to prevent him submitting a claim to the Commission. Whilst factually correct, it does not negate the steps taken by the Applicant on 21 September 2023 and 10 October 2023, where he did dispute his dismissal.

• [31] On balance, this factor weighs in favour of the grant of an extension of time.

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

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

• [34] In Telstra-Network Technology Group v Kornicki,[24] 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.[25]

• [35] With regard to the Applicant's substantive case, he has relied upon contraventions of ss 340, 343, 344 and 351. In respect of s 351, the Applicant claims that he was discriminated against on the basis of disability and sexual orientation. The Respondent argues that it was not aware of the Applicant's sexual orientation until he referred to it in his materials and therefore it could not have discriminated against him on that basis.

• [36] The Respondent further submitted that as a disability service provider, it has on many occasions given work opportunities to people living with a disability to extend their capabilities and self-confidence. The Respondent stated that several of its clients have transitioned to paid work with it and other organisations and that it currently employs five people with physical and significant neurological disabilities in its workforce, and the general workforce is 30% neuro divergent.

• [37] The Applicant refers to no conduct on behalf of the Respondent that is supportive of purported contraventions of ss 340, 343 and 344.

• [38] Nevertheless, evidence on the merits is rarely called at an extension of time hearing. As a result, 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 make her or his application.[26] 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 this factor neutral although the Applicant's substantive case as currently framed is weak albeit not without merit.

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

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

• [40] 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.

• [41] 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. Whilst one factor weighs in favour of granting an extension, another does not, and the remaining factors are neutral. In my view and for the reasons given, the circumstances of this case are not exceptional, either individually or when considered together and as such I do not consider it fair and equitable to extend the time in which the Applicant could make his application.

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

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

[3] Digital Hearing Book, 131 (DHB).

[5] PR768779.

[8] Applicant's Outline of argument: Extension of time, [5].

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

[11] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[14] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38] (emphasis in original) (Stogiannidis).

[15] [2018] FWC 3403.

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

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

[23] Howard v Medical and Aged Care Group [2018] FWC 3454, [19].

[24] (1997) 140 IR 1.

[26] 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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