Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - application for extension of time refused - application dismissed.

[1] On 1 November 2017, Ms Jacinta Pellew lodged an application pursuant to s.365 of the Fair Work Act 2009 (Act) alleging that the termination of her employment with Samuel O'Connor T/A Hair Republic (Respondent) on 4 October 2017 was in contravention of the general protections provisions of the Act (Application).

[2] Section 366 of the Act provides that a person who has been dismissed and who applies to the Fair Work Commission (Commission) for it to deal with a general protections dispute pursuant to s.365 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Commission may allow a further period for the application to be made in exceptional circumstances.[2]

[3] This decision concerns whether I should exercise my discretion to allow Ms Pellew a further period for her Application to be made.

[4] On 1 December 2017, a hearing was conducted by telephone in relation to Ms Pellew's application for an extension of time.

[5] Mr O'Connor, the Respondent, participated in the hearing on 1 December 2017. There was no appearance by or on behalf of Ms Pellew at the hearing. On 22 November 2017, Ms Pellew informed the Commission that she was not able to participate in the hearing on 1 December 2017 "due to other commitments", but she was giving permission for her father "to speak on my behalf". Later on 22 November 2017, an email was sent to Ms Pellew to inform her of the importance of her participating in the hearing on 1 December 2017 and offering her the opportunity to seek an adjournment of the hearing to another date. Apart from filing a short Statement of Evidence by Ms Pellew on 27 November 2017, no response was received to that email, nor was any application or request made to adjourn the hearing date.

[6] The Respondent made short oral submissions at the hearing and consented to Ms Pellew's application for an extension of time being otherwise determined on the basis of the following documents filed in the proceedings:

• Ms Pellew's Application;

• Ms Pellew's Outline of Argument filed on 21 November 2017;

• Ms Pellew's Statement of Evidence filed on 27 November 2017;

• The Respondent's Response dated 26 November 2017; and

• The Respondent's Outline of Argument filed on 27 November 2017.

[7] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are "exceptional circumstances", taking into account the following five criteria:

(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."

[8] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[3]

[9] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.[4] In that matter the Full Bench held the following in relation to "exceptional circumstances":[5]

"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."

Reasons for delay - s.366(2)(a)

[10] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[6] A dismissal can be communicated orally.[7]

[11] There must be an acceptable reason for the delay in making the general protections application.[8]

[12] The applicant must provide a credible reason for the whole of the period that the application was delayed.[9] Ignorance of the 21 day timeframe is not an exceptional circumstance.[10]

[13] The delay required to be considered is the period beyond the prescribed 21 day period for making 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.[11] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:[12]

"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."

Relevant chronology of events and reasons for delay

[14] It is not in dispute between the parties, and I am satisfied on the evidence, that Ms Pellew's dismissal was communicated to her in writing and orally on 4 October 2017. It follows that Ms Pellew's employment with the Respondent came to an end on 4 October 2017.

[15] The 21 day time period for Ms Pellew to make a general protections application pursuant to s.365 of the Act expired on 25 October 2017.[13] Given that Ms Pellew filed her Application on 1 November 2017, the Application was 7 days late.[14]

[16] In accordance with the principles summarised in paragraphs [10] to [13] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging a general protections application. In this case, that is the period from 25 October 2017 to 1 November 2017. However, the circumstances from the time of the dismissal (4 October 2017) 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.

[17] Ms Pellew explained her delay in lodging her Application in the following way in her Application:

"U2017 /10771 was the case number for the previous forms we submitted for an Unfair dismissal through Fair Work Trading. We had misunderstood the instructions we were told. I was told to fill in the general protection form and put it under as an unfair dismissal. However, after having a phone yesterday about the unfair dismissal, we were told we had gone under the wrong one. Which is why I am now filling out another form, as I really need this to be accepted please.

Therefore that is the reason as to why we have passed the 21 days.

As stated before, we had previously misunderstood the steps that had to be done.

U2017/10771 was the case number for the previous forms we submitted for an Unfair dismissal through Fair Work Trading. I was told to fill in the general protection form and put it under as an unfair dismissal. However, after having a phone yesterday about the unfair dismissal, we were told we had gone under the wrong one. Which is why I am now filling out another form.

I now understand that this form, general protections is the more appropriate form for my circumstances.

I was told that this situation was more appropriate to fall under the general protection, rather than an unfair dismissal. As I had already put it under as an unfair dismissal, since we had previously misunderstood gthe [sic] directions we were told by somebody else. After having a meeting by phone with Fair Work Trading, we were

explained that we had to submit the application through general protections"

[18] Ms Pellew did not address the delay or the reasons for it in her witness statement. In her Outline of Argument: Extension of Time, Ms Pellew further explained her delay in lodging her Application in the following way:

"Yes, I did do it within the 21 days. However while speaking to someone about the unfair dismissal there was a misunderstanding as we were told to fill in an unfair dismissal form.

We had a meeting planned already, which was then on that day we were told we had filled in the wrong forms.

I then had to fill in a general practice [sic] form which has brought me to here, over the 21 days."

[19] There is an inconsistency between Mr Pellew's Application and her Outline of Argument in relation to which form she was told to complete shortly after her dismissal. In her Application, Ms Pellew states that she "was told to fill in the general protection form and put it under as an unfair dismissal", whereas in her Outline of Argument she contends she was "told to fill in an unfair dismissal form". It was not possible to explore this issue with Ms Pellew at the hearing on 1 December 2017 because Ms Pellew did not participate in it. Further, no evidence was given as to who provided this information to Ms Pellew. In those circumstances, I am not satisfied on the material before me that the delay in filing the Application was caused by representative error or error on the part of whoever provided the information to Ms Pellew about completion and filing of the relevant forms. I do accept, however, that Ms Pellew filed her unfair dismissal application in the Commission on 7 October 2017 and she filed her Application on the day following the day on which she was informed that she had "gone under the wrong one".[15]

[20] For the reasons set out above, I find that the reason for the delay in Ms Pellew filing her Application was a misunderstanding or lack of knowledge on Ms Pellew's part about whether she should file unfair dismissal application or a general protections application. This reason amounts to ignorance of the law. However, ignorance of the law is not an exceptional circumstance.

[21] Although I have sympathy for Ms Pellew, the matters she relies on, as summarised in paragraphs [17] to [20] above, are not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon.

[22] This factor weighs against granting Ms Pellew an extension of time.

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

[23] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time.[16]

[24] The applicant filed an unfair dismissal application with the Commission on 7 October 2017, within the 21 day period allowed for such applications. The Commission made contact with the Respondent in relation to the unfair dismissal application. By lodging her unfair dismissal application within time, Ms Pellew put the employer on notice that she was contesting her dismissal and took action to dispute her dismissal.

[25] This factor weighs in favour of granting Ms Pellew an extension of time.

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

[26] Prejudice to the employer will weigh against granting an extension of time.[17] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[18] The employer must produce evidence to demonstrate prejudice.

[27] A long delay gives rise "to a general presumption of prejudice".[19] The period of the delay in this matter was 7 days which is a relatively short period of delay.

[28] The Respondent contends that an extension of time would put an unfair burden on the Respondent's business as it is restricting trading options. The Respondent contends that its business has been listed for sale and the Application is detracting from the sale.

[29] Noting that the delay was 7 days, I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the Respondent is a neutral consideration.

Merits of the application - s.366(2)(d)

[30] Ms Pellew commenced employment with the Respondent on 10 January 2017 in the position of Apprentice Hairdresser. Ms Pellew contends that her employment was terminated as a result of her exercising a workplace right, namely that her father, Mr Glen Pellew, and herself made complaints and inquiries to the Respondent in September/October 2017 about her hours and pay. The complaints raised by Ms Pellew were subject of investigation by the Fair Work Ombudsman and the Respondent advised in its oral submissions that the complaints have since been resolved.

[31] At the time of dismissal on 4 October 2017, the Respondent provided Ms Pellew with a letter confirming that her employment was terminated for the following reason:

"The purpose of this letter is to confirm the outcome of a recent review by Hair Republic (the employer) of its operational requirements, and what this means for you

As a result of economic downturn, the position of Apprentice hair dresser is no longer needed. This means your employment will terminate. The decision is not a reflect on your performance. Your employment will end immediately..."

[32] Ms Pellew contends that that her employment was terminated on 4 October 2017 suddenly because she had questioned the accuracy of her pay. She says that the Respondent had not advised that any employees would be leaving, just that sales were low and the employees needed to pick up business and bring more people into the business.

[33] In its Form F8A Response to General Protections Application, the Respondent denies that Ms Pellew's employment was terminated because of concerns raised by Ms Pellow and her father. The Respondent contends that Ms Pellew's role of Apprentice Hairdresser was made redundant because the Respondent's business was not able to financially support it and following a restructure. The Respondent contends that all its employees were made aware of the financial situation of the Respondent's business since April 2017.

[34] The resolution of the contested factual question concerning the reason(s) for the termination of Ms Pellew's employment will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

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

[35] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[20] considered this criterion and said (at [41]):

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

[36] I am not satisfied that the issue of fairness as between Ms Pellew and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant, I find that this factor it is a neutral consideration in determining whether to grant an extension of time.

[37] Having taken into account the matters referred to in paragraphs [10] to [36] above, I am, on balance, not satisfied that there are exceptional circumstances warranting Ms Pellew being allowed a further period for the Application to be made. Ms Pellew's circumstances were not out of the ordinary course, unusual, special or uncommon.

[38] Accordingly, the application for an extension of time is refused. The jurisdictional objection as to the Application being made out of time is upheld and the substantive Application is dismissed.

[1] Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6 - where a period of time 'is expressed to begin after a specified day' the period 'does not include that day')

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

[4] [2011] FWAFB 975; [2011] 203 IR 1

[6] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

[7] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

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

[9] Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251; (2010) 197 IR 403 at 408-9

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14]

[11] 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]

[12] [2016] FWCFB 349 at [31]

[13] That is, 21 days from 4 October 2017 (not including 4 October) is 25 October 2017.

[14] That is, 1 November 2017 is 7 days after 25 October 2017.

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

[19] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 556

[20] [2016] FWCFB 6963

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