Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time sought - exceptional circumstances not established - application dismissed.

[1] Mr Gregory Dodd (the Applicant) commenced employment on 23 March 2018 with ABN Group (Vic) Pty Ltd (the Respondent) as a Senior Development Manager. He was advised by the Respondent in correspondence of 17 July 2018 that he was to be dismissed with immediate effect for reasons of performance and an inability to meet the inherent requirements of his position. There was no dispute that the date of termination was 17 July 2018 or that the Applicant was notified of his dismissal on that date.

[2] The Applicant alleges that the termination of his employment by the Respondent was in breach of general protections provisions. A completed Form F8 - General protections application involving dismissal (the Application) was filed by the Applicant with the Fair Work Commission (Commission) on 5 September 2018. The Applicant contends in his Application that the Respondent engaged in adverse action against the Applicant in breach of s 351 of the Act on the basis of his gender identity.

[3] The Application was not made within 21 days after the dismissal took effect on 17 July 2018, as required under s 366(1)(a) of the Fair Work Act 2009 (the Act). The Respondent objected to the Application on the grounds that the Application had not been made within 21 days of the dismissal taking effect.

[4] Determination of the extension of time application was set down for a Hearing/Conference before me on 7 November 2018. After taking into account the wishes of the parties as to the way in which the Commission would consider and inform itself in relation to the Application, I decided to conduct a conference to determine the extension of time application.

[5] The Applicant appeared at the conference and gave evidence on his own behalf while the Respondent was represented by Ms Karenne Hall, People Business Partner, ABN Group Victoria. Ms Hall called Mr Oscar Stanley, General Manager Developments to give evidence on behalf of the Respondent.

[6] On 23 March 2018, the Applicant commenced employment with the Respondent. He was engaged as a Senior Development Manager on a full-time basis on a salary of $180,000.00 per annum, plus superannuation. A number of other benefits were included as part of his package of entitlements including car parking, a mobile phone and an etag. The letter of offer[1] also referred to the application of the ABN Group General Terms and Conditions of Employment document.[2]

[7] Mr Stanley states that he became aware of a concerning situation involving the Applicant and a colleague, Ms Casey Jacobs, on 13 July 2017. Mr Stanley states that during a meeting with Ms Jacobs, she detailed a series of events involving the Applicant that had caused her to feel uncomfortable in the office. At Mr Stanley's request, Ms Jacobs subsequently documented those concerns in correspondence dated 16 July 2018.[3] Mr Stanley also referred to repeated concerns raised by other staff regarding the Applicant's conduct.[4]

[8] On 17 July 2018, a meeting was conducted by the Respondent with the Applicant for the purpose of reviewing the Applicant's performance and ability to meet the inherent requirements of the role. The formal complaint raised by Ms Jacobs on 16 July 2018 regarding the Applicant's conduct was also discussed in that meeting.[5]

[9] During that same meeting, the Respondent concluded that the Applicant had failed to meet the performance standards required of him during his probationary period and referred to clause 6.1.1.1.1 of the ABN Group General Terms and Conditions of Employment document[6] which provides for a standard six month probationary period. The Respondent decided to terminate the Applicant's employment with immediate effect and confirmed its decision at the conclusion of the meeting and in correspondence to the Applicant dated 17 July 2018.[7]

[10] On 27 July 2018, the Applicant sent an email to Mr Stanley in which the Applicant detailed his interactions with Ms Jacobs. In doing so, the Applicant stated to Mr Stanley that he did not believe his interactions with Ms Jacobs constituted harassment, but nonetheless apologised for the impact of those interactions. He also expressed concern as to whether the issue of his interactions with Ms Jacobs had been more widely reported within and outside the Respondent's business.[8]

[11] On 2 August 2018, the Applicant wrote to Mr Aiden Hooper, Managing Director of the Respondent, in which he raised a number of concerns regarding the circumstances of his dismissal and sought clarification of the perceptions that were being presented to the broader industry regarding his termination of employment. A relevant extract of the letter is as follows:

I have no intention of claiming unfair dismissal, but I am curious on what perceptions are being presented to the development industry and, most importantly - the impact of this on any future employment?"[9]

[12] On 30 August 2018, the Applicant sent further correspondence[10] to Mr Hooper formally requesting a copy of the document prepared by Ms Jacobs, that being the formal complaint raised by her on 16 July 2018 regarding the Applicant's conduct and which had been referred to during the dismissal meeting on 17 July 2018. The Applicant foreshadowed that if he did not receive a copy of the document as requested he would instigate legal proceedings to obtain a copy of same.

[13] On 31 August 2018, the Respondent replied[11] to the Applicant's letter of 30 August 2018 and stated that the Respondent considered the matter of the Applicant's dismissal closed.

[14] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) An application under section 365 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).

[15] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission, in concluding whether exceptional circumstances exist, must take into account the following factors:

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

(a) the reason for the delay; and

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

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

(c) the merits of the application; and

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

[16] It is clear from the statutory provisions that the Commission can extend the time for the lodging of an application under s 365 of the Act if it is satisfied that there are exceptional circumstances under s 366(2) of the Act. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[17] In considering an application for an extension of time, the Commission must have regard to and weigh each of the considerations set out in s 366(2) of the Act in determining whether exceptional circumstances exist to warrant an exercise of the discretion to extend time in which to make application. The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd [12] where the Full Bench said:

"[13] 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. 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 singular occurrence, even though it can be a one 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." [Endnotes not reproduced]

[18] The Full Bench of the Commission affirmed in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[13] that the conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each. Further, the Full Bench clarified that with respect to s 366(2)(a) of the Act, a credible explanation for the entirety of the delay is not a precondition for the granting of an extension of time. The Full Bench held as follows:

"[38] 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.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However 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.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

[41] The 'reason for the delay' is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances." (footnote omitted)."

[19] In deciding whether to allow a further period for the Application to be made, I must take into account the matters set out in s 366(2) above. I will now deal with each of those matters.

Section 366(2)(a): the reason for the delay

[20] One of the matters that must be considered and weighed is whether an acceptable reason for the delay in making the Application exists.[14]

[21] The Application was filed on 5 September 2018 which is 50 days after the Applicant's dismissal or 29 days beyond the 21 day statutory period required by s 366(1)(a) of the Act.

[22] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.[15]

[23] The Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[16]:

"For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."

[24] The Applicant states that in the immediate aftermath of his dismissal he made some inquiries as to his right to challenge his dismissal. He states that he became aware within four days of his dismissal that, as he had not met the minimum employment period of six months, he would be unable to pursue an unfair dismissal application. The Applicant states that he was unaware at that early stage of his right to pursue a general protections dismissal claim which did not require a minimum employment period to have been served.

[25] The Applicant further states that, armed with the mistaken belief that he was unable to pursue a legal remedy for his dismissal, he raised concerns with the Respondent regarding the consequences of the dismissal on his professional reputation and future employment prospects in his letter of 2 August.[17] Central to his concern were the harassment allegations made against him by Ms Jacobs which he had sought to address in his email of 27 July 2017 to Mr Stanley.[18]

[26] The Applicant states that subsequent to his 2 August 2018 letter, he sent a further letter to the Respondent on 30 August 2018[19] seeking a copy of the 16 July 2018 complaint document prepared by Ms Jacobs on which the Applicant claims the Respondent partly relied in dismissing him on 17 July 2018. That request was denied by the Respondent in correspondence dated 31 August 2018.[20]

[27] The Applicant states that following his unsuccessful attempts to obtain a copy of Ms Jacob's 16 July 2018 complaint document, he became aware through further inquiries of a right to pursue a general protections dismissal claim and promptly filed his Application on 5 September 2018. The Applicant acknowledges that there was nothing that prevented him from seeking legal advice on his options at an earlier stage.

[28] I accept that the Applicant was initially unaware of the distinction between an unfair dismissal application and a general protections dismissal application. That is not unusual in the case of self represented litigants. By the Applicant's own evidence it is clear that he made some initial inquiries as to his rights to pursue a remedy in relation to his dismissal. These inquiries confirmed that he was barred from pursuing an unfair dismissal remedy due to his not having served the minimum period of employment of six months.

[29] I am further satisfied that at some point on or around 31 August 2018, the Applicant made more fulsome inquiries and became aware of his ability to pursue a general protections dismissal claim following which he filed his general protections dismissal Application on 5 September 2018. He acknowledged that nothing prevented him from seeking legal advice at an earlier stage and explained his inaction as being due to his waiting for a copy of Ms Jacob's 16 July 2018 complaint, such request having been consistently refused by the Respondent.

[30] I accept that the Applicant was ignorant of his right to pursue a general protections dismissal claim until well beyond the statutory 21 day period specified under s 366(1)(a) of the Act. That ignorance could have been resolved by the Applicant conducting more fulsome inquiries or obtaining appropriate advice at an earlier stage. Self-evidently he failed to do so. Mere ignorance of his right to make a general protections application does not in itself constitute an exceptional circumstance in circumstances where he failed to make proper inquiries or seek appropriate advice.

[31] Nor does the Applicant's justification that he was awaiting a copy of the 16 July 2018 complaint of Ms Jacobs provide a reasonable explanation for the delay. The formal request for that document was not made by the Applicant until 30 August 2018 some six weeks after his dismissal on 17 July 2018.

[32] For the reasons outlined above, I am not satisfied that the Applicant's claimed ignorance of his right to pursue a general protections dismissal claim is an acceptable explanation for the period of delay in lodging his application. This weighs against a finding that there are exceptional circumstances.

Section 366(2)(b): any action taken by the person to dispute the dismissal

[33] Action taken by the employee to contest the dismissal, other than lodging an application for general protections relief, may favour granting an extension of time.[21]

[34] The Applicant states that he raised concerns regarding the circumstances of his termination and the failure of the Respondent to accord him procedural fairness by denying him a copy of the 16 July 2018 complaint prepared by Ms Jacobs. He also states that while he did not seek a review or reversal of the decision to dismiss him, this was because he understood that there was no unfair dismissal remedy available to him, hence his focus on the impact of the dismissal on his professional reputation and future employment prospects.

[35] The correspondence sent by the Applicant to the Respondent on 27 July, 2 August and 30 August 2018 evidences a strong dissatisfaction of the Applicant with the process followed by the Respondent in effecting his dismissal. While the Applicant was not seeking that the dismissal decision be overturned, he was seeking redress in terms of the consequences of the dismissal on his future employment prospects. I am consequently satisfied that the Applicant's conduct in the wake of his dismissal can be properly characterised as disputing the dismissal. This weighs in favour of a finding that exceptional circumstances exist.

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

[36] Prejudice to the employer will weigh against granting an extension of time.[22] The Respondent did not contend that it would suffer any prejudice.

[37] Given the circumstances, I am satisfied that the Respondent will not suffer prejudice that is out of the ordinary in circumstances of a contested general protections dismissal claim for which the Application has been made. It is therefore a neutral consideration.

Section 394(3)(e) the merits of the application

[38] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[23], it said:

"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."

[39] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[24] for the purpose of determining whether to grant an extension of time to the Applicant to make his Application. I have adopted this reasoning.

[40] In his Application, the Applicant claimed that the Respondent's action in dismissing him was in breach of section 351(1) of the Act which relevantly provides as follows:

• (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

[41] The Applicant further identified in his Application that the attribute on which he asserted that he had been subject to adverse action was "gender identity". This ground was not expanded on or supported in the Applicant's evidence or submissions during the proceedings.

[42] The Applicant's key contention was that the Respondent had failed to accord him procedural fairness in effecting his dismissal. Specifically, he had been denied an opportunity to access a copy of the harassment allegations made against him by Ms Jacobs in her 16 July 2018 complaint, which the Respondent had in part relied. Further, he states that the full contents of the 16 July 2018 complaint document of Ms Jacobs were not disclosed to him in the meeting of 17 July 2018 and consequently he was not given an opportunity to properly respond to those allegations prior to his dismissal.

[43] The Respondent rejected the Applicant's evidence that he had been denied procedural fairness. Mr Stanley states that the complaint of Ms Jacobs was a trigger for the 17 July 2018 meeting but it was not the only reason the Applicant was dismissed and referred to feedback from other staff.[25] Mr Stanley further states that the particular allegations of Ms Jacobs were outlined and discussed with the Applicant in the meeting of 17 July 2018.[26] The decision to terminate the Applicant was, according to Mr Stanley, made having regard to a range of behavioural issues[27]. Further, the dismissal was initiated within the Applicant's six month probationary period provided for within the ABN Group General Terms and Conditions of Employment document which the Applicant acknowledged he had received.

[44] No evidence was adduced, nor were submissions made by the Applicant that supported his claim that his dismissal was for a prohibited reason pursuant to s 351(1) of the Act. Nor was there any evidence that the Applicant had pursued a workplace right during his period of employment that would otherwise potentially enliven s 340 of the Act. Rather, the Applicant's central complaint was that his dismissal was attended by a lack of procedural fairness.

[45] It is unarguable that the Applicant has suffered adverse action by his dismissal. That is insufficient, however, to found a basis for a general protections claim on its own. The Applicant must also be able to point to the alleged discrimination or workplace right that was exercised. No elements of a contravention have been identified by the Applicant. In these circumstances, the question of the merits of the Application weighs strongly against an extension of time being granted.

Section 394(3)(f): fairness as between the person and other persons in a similar position.

[46] In Wilson v Woolworths,[28] it was said of this consideration:

"It is not therefore entirely clear as to whether or not the so-called principle is operative in relation to the approach to matters of a similar kind that are currently before the court or the tribunal or whether the court or the tribunal is to consider how, in some general sense, similar matters have been approached historically."[29]

[47] More recently the question of fairness as between the Applicant and other persons in a similar position has been considered in Morphett v Pearcedale Egg Farm,[30] as follows:

"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission."

[48] No submissions were made by either party on this issue and on that basis I consider this factor to be a neutral consideration.

[49] Having taken into account the matters specified at s 366(a) to (e) of the Act, insofar as they are relevant in the circumstances, I am not satisfied that there are exceptional circumstances that warrant an exercise of my discretion to allow a further period of time for the substantive Application to be made.

[50] In reaching my conclusion I have had regard to my findings on: the reason for the delay and the merits of the claim which weigh against the extension of time being granted; the Applicant's conduct in disputing the dismissal which weighs in favour of an extension of time being granted; and the remaining factors which are neutral considerations. Further, there are no other factors raised by the Applicant that persuade me that exceptional circumstances exist such as to warrant the granting of an extension of time for the Application to be made.

[51] The application for an extension of time is refused. The Application is dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit A1, Employment Contract of Mr Gregory Dodd, dated 17 March 2018.

[2] Exhibit R1, ABN Group General Terms and Conditions of Employment.

[3] Exhibit R2, Witness Statement of Mr Oscar Stanley, dated 25 October 2018 at paragraph [5].

[7] Exhibit A2, Termination letter, dated 17 July 2018.

[8] Exhibit A3, Email from Mr Gregory Dodd, dated 24 July 2018.

[9] Exhibit A4, Letter to Mr Aiden Hooper, dated 2 August 2018.

[10] Exhibit A5, Letter to Mr Aiden Hooper from Mr Greg Dodd, dated 30 August 2018.

[11] Exhibit A6, Letter to Mr Gregory Dodd from Ms Karenne Hall, dated 31 August 2018.

[12] [2011] FWAFB 975; (2011) 203 IR 1.

[13] [2018] FWCFB 901.

[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[15] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v

Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood

Organic [2016] FWCFB 349 at [29]- [31].

[16] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [31].

[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[23] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[24] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[25] Exhibit R2 at paragraphs [3]-[5].

[28] Wilson v Woolworths [2010] FWA 2480.

[29] Wilson v Woolworths [2010] FWA 2480 at [29].

[30] Morphett v Pearcedale Egg Farm [2015] FWC 8885 at [29].

Printed by authority of the Commonwealth Government Printer