James Amos [2019] FWC 7359 (24 October 2019)

Fair Work Act 2009

s.365 - General protections

Legend Holding Group (Aust) Pty Limited t/a The Manly Greenhouse

Application to deal with a general protections dispute involving dismissal - application filed out of time - circumstances not exceptional - application dismissed.

[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Act).

[2] I have determined that the Applicant did not file within the statutory timeframe and should not be allowed a further period within which to lodge his application. The reasons for that decision follow.

[3] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[4] It was not disputed that the Applicant was dismissed from his employment as a Casual Bartender effective 11 April 2019.[1] The Applicant did not lodge his application until 13 May 2019. Accordingly, the period of 21 days ended at midnight on 2 May 2019 and the Application was lodged 11 days out of time.

[5] The Applicant asks that the Commission allow a further period for the application to be made. The Respondent opposes, seeking to rely on its written submissions only having declined to attend the hearing.[2]

[6] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are "exceptional circumstances". The matters of which I must be satisfied are set out in s.366(2) of the Act.

[7] The exceptional circumstances test establishes a high hurdle for an applicant.[3] In this context, 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.[4] 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.[5]

[8] My consideration of the matters set out at s.366(2) follows.

[9] 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" or "reasonable" or "credible" explanation.[6] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant's favour.[7] Ultimately, it is a question of degree and insight.[8]

[10] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay.[9]

[11] The Applicant acknowledged that there is nothing "exceptional" or "unusual" about his circumstances but maintained they should be considered "just" reasons for granting an extension of the time within which to file his application.[10]

[12] Specifically, the Applicant said his delay was because he did not plan on challenging his dismissal but changed his mind after receiving new information that the Respondent had hired two new staff including a bartender.[11] This information was received on or around 5 May 2019.[12]

[13] On 5 May 2019, the Applicant contacted the General Manager of the Respondent (Mr Greg Anderson) about the new hires and requested a meeting to discuss his "unfair dismissal", which the Respondent declined. An exchange of correspondence ensued over the period 6 to 8 May 2019. On 8 May 2019, the Respondent concluded by inviting the Applicant to "Please contact Fair Work and let me know if you need anything else".[13]

[14] After this exchange, the Applicant completed an unfair dismissal application form and, after being informed he did not meet the jurisdictional requirements, then completed this application alleging dismissal in breach of the general protections provisions.[14] At the hearing, the Applicant said it was not until around this time that he had looked at the Commission's website and learned that there was a 21 day period for making an application which had already lapsed.

[15] The Applicant sought to offer an additional reason for his delay, being his feelings of "unhappiness" and mental state which meant that he was not thinking clearly as to understand his options. At the hearing the Applicant said that, although his doctor had referred him to see a psychologist, he had not done so. The Applicant did not file or seek to file any medical evidence in support.

[16] I accept that the Applicant experienced difficulties in the period from 11 April 2019. However, this is not uncommon or unusual and does not weigh in favour of a finding of exceptional circumstances in this case.

[17] The receipt of information about new hires is just one of potentially many relevant factors and is not so compelling as to reasonably explain the delay in filing. In any event, the Applicant had received the new information by 5 May 2019 but did not proceed to lodge this application for a further 8 days. That he attempted to communicate and meet with the Respondent on 5 to 8 May 2019 is perhaps appropriate but is not a reasonable explanation for the delay.

[18] Neither is ignorance or a lack of understanding of the statutory requirements an acceptable explanation. On the materials before the Commission, the Applicant has demonstrated that he was able to access and comprehend publicly available information about his options. He simply did not do so until after the statutory timeframe had already expired.

[19] I consider the absence of an acceptable, reasonable or credible explanation for the delay weighs against a conclusion that there were exceptional circumstances in this case.

Action taken to dispute the dismissal - s.366(2)(b)

[20] In respect of s.366(2)(b), I am required to take into account any action taken by the Applicant to dispute his dismissal.

[21] The Applicant initially attempted to secure more work with the Respondent, through approaches to its management. However it is not suggested that any action was taken to dispute (or put the Respondent on notice of his intention to) challenge the dismissal until 5 May 2019, which is after the statutory timeframe had expired.[15]

[22] I consider this weighs only slightly in favour of a finding of exceptional circumstances in the present case.

[23] The Respondent broadly asserted that it would suffer "extreme disadvantage" if the extension of time was granted but did not elaborate other than to say that "businesses and employers should have the right to continue on with their business and not have to worry about employees coming back a month, several months or even a year after a dismissal to challenge it".[16]

[24] On the Respondent's materials, I am not able to identify any particular prejudice which the Respondent would suffer. However, even an absence of prejudice is not of itself a factor that would warrant an extension of time, nor is it exceptional. I consider this to be a neutral factor in the present case.

[25] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[26] The Applicant understood that he was employed on a casual basis meaning he would work shifts as and when rostered, though his expectation was there would be up to 25 hours per week available for him to work.

[27] The Respondent's written reasons for ending the Applicant's casual employment were:

1. a need to reduce shifts for a majority of staff due to a tightening of the operations; and

1. relatedly, a decision to make the ground floor bartender position redundant and have all bar staff function as waiters.[17]

[28] The Respondent's materials convey legitimate operational reasons for the decision to reduce the Applicant's shifts including a restructure which involved the removal of one position, reallocation of duties and reduced hours for the "majority" of staff. On the face of the termination email of 11 April 2019, the Respondent believed that the Applicant was "unhappy" with fewer shifts and assumed that the Applicant would not be happy with further reduced hours.

[29] The Applicant acknowledges that he was not happy about his hours being reduced. However he believes that his role was not genuinely redundant, on the basis that two new staff including a bartender were hired in the weeks after his dismissal.

[30] The Applicant's true complaint appears to be that his dismissal was unfair. Indeed, the Applicant admits that he would have made an unfair dismissal application if he had access to the jurisdiction.[18] The Applicant, like many other unrepresented people in his position, was not able to identify the workplace right he relies upon or clearly articulate the elements of his s.340 claim. However, after questioning the Applicant about the basis for his claim and the factual matters he relies upon to support it, I came to understand that the Applicant asserts he had a workplace right to complain about being rostered to work fewer hours than he believed he was promised and asserts that the Respondent took adverse action against him including by dismissing him because he complained.

[31] The Respondent denies that it has contravened s.340 of the Act. However, its decision not to participate in the hearing before the Commission means the Applicant's oral evidence that tends to indicate his complaint about reduced hours was a reason for the dismissal remains unchallenged and the reference in the 11 April 2019 email to the Applicant having expressed his unhappiness about his reduced hours (potentially a reason for the dismissal) remains unexplained. It would appear on this evidence that the Applicant is at least able to make out the basis of a general protections claim.

[32] Accordingly, I consider the materials on merit weigh slightly in favour of a finding of exceptional circumstances in this case.

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

[33] Applications to extend time generally turn on their own facts. The parties did not draw to my attention 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.

[34] I consider this to be a neutral consideration in the present matter.

[35] The time limit that applies to the exercise of a person's right to bring an application under s.365 reflects the Parliament's intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[36] 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. That there is no acceptable, reasonable or credible explanation for the delay in filing the application weighs against the grant of an extension in this case. The steps taken to dispute the dismissal and merits of the substantive application together weigh slightly in favour of the grant of an extension, whereas the remaining factors weigh neutrally. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[37] I decline to grant an extension of time under s.366(2). Accordingly, the Applicant's application under s.365 of the Act is dismissed.

[1] Item 1.3 of Form F8 Application filed 13 May 2019 and Item 1c of Respondent's Outline of Submissions filed 13 June 2019.

[2] As notified to my Associate, by telephone, immediately prior to the Hearing on 20 June 2019.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine [2016] FWCFB 6963 (Perry) at [21].

[6] Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd [2018] FWC 7355 at [7].

[8] Green v Bilco Group Pty Ltd [2018] FWC 6818 at [8].

[9] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]- [33]; Perry at [23].

[10] Item 1d of Applicant's Outline of Submissions filed 3 June 2019.

[11] Item 1d of Applicant's Outline of Submissions filed 3 June 2019 and Applicant's evidence at the Hearing on 20 June 2019.

[12] Applicant's evidence at the Hearing on 20 June 2019.

[13] See screenshots at Item 3.1 of Form F8 Application filed 13 May 2019.

[14] Item 1.4 of Form F8 Application filed 13 May 2019.

[15] Mr Markos Wilson v Woolworths [2010] FWA 2480 at [19].

[16] Item 1g of Respondent's Outline of Submissions filed 13 June 2019.

[17] See screenshot of termination email at item 1b of Applicant's Outline of Submissions filed 3 June 2019.

[18] Item 1.4 of Form F8 Application filed 13 May 2019.

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