Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - application filed out of time - circumstances not exceptional - application dismissed

• [1] Ms Julia Harvie (the Applicant), made an application on 27 August 2023 to the Commission under section 365 of the Fair Work Act (the Act) for the Commission to deal with a General Protections application involving dismissal from her employment with Churches of Christ (the Respondent), in contravention of Part 3-1 of the Fair Work Act.

• [2] The Respondent, in their response on 12 September 2023, objected to the application on the ground that the application was filed out of time.

• [3] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

• [4] Section 394(2) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

• [5] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.

• [6] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the Act).

• [7] The Applicant gave evidence on her own behalf.

• [8] Ms Rebecca Scott, Manager Employment Relations at the Respondent, gave evidence on behalf of the Respondent.

• [9] The Applicant filed submissions in the Commission on 17 September 2023. The Respondent filed submissions in the Commission on 29 September 2023

• [10] Final written submissions were filed by the Applicant on 5 October 2023.

• [11] It is not in dispute, and I so find, that the dismissal took effect on 3 August 2023[1].

Was the Application made within 21 days after the dismissal took effect?

• [12] As the Full Bench has stated in relation to a general protections application but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[2]

• [13] On that basis I find that the date of termination was 3 August 2023. The final day of the 21-day period was therefore 24 August 2023 and ended at midnight on that day. As I noted above, the application was made on 27 August 2023 and was therefore filed 3 days out of time.

• [14] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

• [15] Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

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

(c) prejudice to the employer (including prejudice caused by the delay);

(e) fairness as between the Applicant and other persons in a similar position.

• [16] As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.

• [17] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 24 August 2023. The delay is the period commencing immediately after that time until 27 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [18] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]

• [19] An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]

• [20] The Applicant submitted that the delay was for the following reasons:

• • She had sought copies of her phone records from her mobile phone provider to substantiate her belief that her probationary period had been mis-managed by her direct manager;[6]

• • She alleges that this evidence would support her claim that she had been bullied and harassed by her direct manager. In the hearing she gave evidence that she did not want to make such serious allegations without the phone records to support her claims.;[7]

• • She initially made an incorrect Unfair Dismissal Application (pursuant to s.394 of the Act) and then realised she was within her minimum employment period. Whilst she acknowledges ignorance is not an excuse she thought, incorrectly, that she would be able to argue that the matter was 'technically outside of Unfair Dismissal Rules," that she was not in a fit mental state at the time and that she thought based on her previous experience working in government agencies, that she could succeed with the wrong application. She was contacted by the Fair Work Commission on 25 August 2023 during which the issue of her minimum employment period was raised with her. She discontinued that application during that call. She gave evidence that she put the matter aside for that day (25 August 2023) and she lodged the present application on Sunday 27 August 2023;[8]

• The Applicant gave verbal evidence in the hearing that she was on anti-depressant medication however she acknowledged that she had put no medical evidence before the Commission as to her health;

• • The Applicant submitted in her written submissions that she was "in shock at being blindsided" by the decision to terminate her employment;[9]

• • The Applicant acknowledged that at the time of her termination she advised her employer that as she was being terminated in her probation, she therefore had no rights;[10]

• • The Applicant submitted that the extension of time would permit her with an opportunity to address her concerns with respect to her direct manager's conduct;[11] and

• • The Applicant provided copies of lengthy and detailed written complaints made to the Respondent about her direct manager, one dated the day after her termination, on 4 August 2023[12] and another dated 9 August 2023.[13] The Applicant also gave evidence in the hearing that she made a whistleblower complaint on 16 August 2023.

• [21] In relation to the reason for the delay, the Respondent made the submission that the Applicant did not provide any medical evidence to support her reasons for delay, that she was well aware of her rights and that the Applicant's actions in the form of her written complaints subsequent to her termination were demonstrative of her ability to take action to file the correct claim in time.

• [22] Having considered the evidence, I find that the reasons for the delay were that the Applicant was distressed about her dismissal, she filed an application for unfair dismissal pursuant to s.394 of the Act incorrectly but thought she could still make her case under that claim until receiving a call from the Fair Work Commission at which time she formed the view that she should discontinue that application.

• [23] She took another three days to file the present application. The Applicant gave no explanation for 1 of those 3 days, and her reason for the other 2-day delay was that she was preparing this present application which she filed on Sunday 27 August 2023.

• [24] Having regard to the evidence, I accept that the Applicant was cogent and capable of making the required application, particularly given the 3 written complaints she made to the Respondent in the 2 weeks following her termination.

Did the Applicant first become aware of the dismissal after it had taken effect?

• [25] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by the Applicant to dispute the dismissal?

• [26] It is uncontested that the Applicant took action to dispute the dismissal by lodging an Unfair Dismissal Application pursuant to s.394 of the Fair Work Act.

• [27] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[14]

What is the prejudice to the employer (including prejudice caused by the delay)?

• [28] The Respondent submits that it would suffer prejudice if an extension of time were granted. The Respondent submits that it is a not for profit and is short staffed in resources to deal with claims of this nature.

• [29] Given that the Respondent was on notice that the Applicant was contesting the termination of her employment by virtue of the first Application made, and the relatively short delay of 3 days, I find that there would be no prejudice to the Respondent if an extension of time were to be granted. I consider this weighs in favour of granting an extension, albeit slightly.

I will now turn to the merits of the application

• [30] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

• [31] The Applicant acknowledged at the hearing that she had not made any complaint about her direct manager's conduct before her employment was terminated, however she had confided to a peer about her concerns about 1 week before her termination. Under cross-examination she gave evidence that she had not asked her peer to convey her concerns to anyone, instead she acknowledged that she had asked her peer to keep her concerns confidential.

• [32] On the basis of the material presently before the Fair Work Commission, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is at least apparent that there would be some hurdles for the Applicant to overcome and on that basis the merit of the application are not strong and the Applicant's submissions on the merits have a paucity of relevant and cogent detail.[15]

• [33] I consider this weighs against a granting an extension, albeit slightly.

I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position

• [34] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [35] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a) the reasons for the delay, are set out in paragraph [23] of this decision;

(b) the Applicant being aware of the dismissal at the time that it took effect;

(c) the actions taken by the Applicant to dispute the dismissal, being that she filed an application for unfair dismissal pursuant to s.394 of the Act which she later discontinued and instead filed a General Protections Application to deal with a dismissal pursuant to s.365 of the Act;

(d) the absence of any prejudice to the employer;

(e) the merits of the application being weak and lacking detail; and

(f) no issue of fairness arising as between the Applicant and other persons in a similar position.

• [36] As set out by the Full Bench at paragraph 13 in the decision of Nulty v Blue Star Group, which is at [2011] FWAFB 975, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may 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.

• [37] Whilst I acknowledge the Applicant will have been distressed about this situation, the stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist (see the Full Bench's decision in Becke v Edenvale Manor Aged Care at [2014] FWCFB 6809). There is no such evidence in this case.

• [38] Further, I note that ignorance of the statutory time limit, would not constitute an exceptional circumstance. This is made clear in the Full Bench decisions in Nulty v Blue Star Group at [2011] FWAFB 975 and Miller v Allianz Insurance Australia at [2016] FWCFB 5472.

• [39] Having regard to all of the matters listed at subsection 2 of section 366 of the Act, I am not satisfied that there are exceptional circumstances.

• [40] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.

• [41] The Applicant's application for the Commission to deal with a dismissal dispute is therefore dismissed. I order accordingly.

[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

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

[15] See, eg, Day v CBI Constructions Pty Ltd [2013] FWC 5359, [19]; Fitzpatrick v Danila Dilba Health Service [2013] FWC 4565.

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