s.365 - General protections

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time denied.

• [1] On 14 March 2022, Mr Kennath Kumar George (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Jungheinrich Australia Pty Ltd (the Respondent). Mr George commenced employment on 1 June 2021 and his dismissal took effect 12 November 2021, while still subject to a probationary period of employment.

• [2] The Applicant submits that he incorrectly filed a general protections not involving dismissal application pursuant to s.372 of the Act, using the Form F8C within the 21-day time frame (the first application). On sending through his general protections involving dismissal application pursuant to s.365 of the Act, and using the Form F8, he states in his cover email that the application follows advice from the Deputy President "during the initial hearing" that he had filed the wrong form.

• [3] The Respondent denies any allegations that it contravened any general protections and further objects to the application on the basis that it was lodged well in excess of the 21-day time limit.

• [4] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 101 days after the 21-day statutory time limit.

• [5] The Applicant contends that he was not given a reason for his dismissal but alleges that his new manager, also subject to probationary employment, subjected him to abuse because of his Sri Lankan heritage, his accent and his colour. He submits that he was stopped from attending the sales conference and ultimately dismissed. He refers to the following provisions of the Act, in which he says the Respondent contravened:

• S.340 Protection of workplace rights;

• S.344 Undue influence or pressure in terms of workplace rights; and
• S.351 Discrimination.

• [6] The Applicant contends that he was scheduled to attend product training from 15-19 November 2021, but on 12 November 2021 was directed to attend a one-on-one sales meeting with his manager, where he was dismissed. At the meeting, he alleges that he was not given a reason for the dismissal other than not completing the probation period. He submits that he was directed to hand over his laptop and phone and was then escorted to his vehicle. The Applicant contends that he requested from his manager to meet with the HR Director but was denied this request. He further contends that he subsequently reported the termination of employment to the HR Director and CEO by email however, he received no response.

• [7] The letter of termination of employment dated 12 November 2021 states that the Applicant's employment was terminated immediately for the reason of failing to complete his probationary period of employment. The Applicant was paid his entitlements and one week in lieu of notice.

• [8] The Respondent submits that the Applicant was terminated during his probation period due to feedback from senior leadership and his sales director that based on his performance, his continued employment with the Respondent was untenable. It denies any allegation of contravention of the general protections provisions of the Act and submits that the Company is an equal opportunity employer, proudly embraces all facets of diversity and refers to its employment of diverse backgrounds across all teams and levels.

• [9] The Respondent states that the Applicant was employed for a period of four months and was assessed by three sales leaders, excluding his direct manager. The assessment found the Applicant failed to grasp basic sales concepts despite its investment in his induction training. Other detailed performance concerns include failure to meet targets, and a failure to use the CRM to manage opportunities. It also submits that during the Applicant's employment he did not at any time raise allegations of discrimination based on his race or ethnicity or any other protected attribute.

• [10] General protections applications involving dismissal must be made within 21 days.

• [11] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

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

• [12] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[1] where it was held that:

"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 regular occurrence, even though it can be a on 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."[2]

• [13] I now turn to the Applicant's arguments for an extension of time in relation to each of the considerations of s.366(2).

• [14] The general protections involving dismissal application was lodged with the Commission on 14 March 2022, 101 days late. The Applicant was aware that his dismissal took effect on 12 November 2021, and he confirmed during the hearing that he was aware of the 21-day statutory time limit.

• [15] The Applicant submits that his first application, a 372 general protections application not involving dismissal, was filed on time and the records do show that it was filed on 25 November 2021. The cover email for the first application states that the Applicant would be overseas for three months. During the hearing he stated that as he felt stressed from the dismissal he had to go overseas and tendered in evidence his booking on 24 November 2021 for the airline tickets.

• [16] During the hearing, the Applicant submitted that due to stress over his dismissal he did not realise that he filed the wrong form. He further confirmed that he read the Respondent's Response in the Form F8A and did not notice its comment that the form was incorrect on the basis that the Applicant was dismissed. A conciliation conference for the first application was held on 8 February 2022 and he states that it was at that point that he became aware that he filed the wrong form. The airline booking showed the Applicant left Sydney on 1 December 2021 and was expected to return on 12 February 2021. The Applicant stated that his trip to Sri Lanka was extended, but nevertheless he participated in the conciliation conference in February while he was overseas.

• [17] In answer to questions from the Commission as to why this application was not filed immediately following the conciliation conference, the Applicant submitted that he was still stressed, was looking after his parents and did not want it known to them that he had lost his job.

• [18] The Applicant tendered in evidence his correspondence in relation to the first application and pay materials forwarded to the Deputy President.

• [19] On 11 March 2022, he wrote to the Deputy President that he would file the correct form the following week and the first application was closed on 17 March 2022.

• [20] The Applicant stated that he filed his application on return to Australia.

• [21] No other evidence in support of the delay was tendered.

• [22] There must be a credible reason for the delay.[3] It is accepted that a dismissal causes a level of stress and this reason alone without further evidence is not enough to satisfy a finding of exceptional circumstances. There is no evidence that the Applicant's medical state was one where he was incapacitated to file the correct application or on learning of his error immediately filing a fresh application. The evidence shows that the Applicant could arrange an overseas trip and participate in a conciliation conference for the first application.

• [23] There was nothing in the Applicant's evidence or submissions that was exceptional, unusual, out of the ordinary, uncommon or special to weigh in his favour.

• [24] The Applicant contends that he challenged his dismissal when he contacted HR and the CEO through email. He attached the email correspondence which he submits supports his steps to challenge the dismissal. Without copying the email, I am satisfied that the email challenges his dismissal.

• [25] In the late afternoon of 15 November 2021, the same day the Applicant challenged his dismissal, the Respondent replied advising that it supported the decision to terminate his employment and advised that a courier would be organised to collect the balance of company property.

• [26] On 16 November 2021, the Applicant further emailed the Respondent questioning the Company policy and the Group Code of Conduct with respect to the manner in which he was dismissed. He further makes requests regarding to the privacy of personal materials on his laptop and requests various documents. The documents requested, were promptly provided on 17 November 2021.

• [27] The first correspondence does support the consideration that steps were taken to challenge the dismissal. This consideration does weigh in the Applicant's favour.

• [28] The Applicant did not address this consideration.

• [29] The Respondent submits the lateness causes unfairness as the Applicant had the opportunity to file the correct application on time and he did not act on receiving the Respondent's Response nor following the conciliation conference for the first application. Despite not filing the correct general protections application, the Respondent submits that it participated in a conciliation conference, attended a programming hearing and now an extension of time hearing and this was an inconvenience. Further, it states that the Applicant failed to show genuine intent to resolve the matter during the conciliation conference with the Deputy President.

• [30] While I accept that the Respondent has been inconvenienced by the late application, it did consent to participate in the first conference in which it did not have an obligation, it has not demonstrated prejudice. However, the mere absence of prejudice is an insufficient basis to grant an extension, therefore I consider this consideration neutral.

• [31] The Applicant provides brief explanation how he relies on each of the alleged general protections. He submits that his manager stated to him during a training session that "Sri Lankans are cheaters," and that on the day of dismissal, he was told he was unsuitable for capital equipment sales because of his accent and colour. He submits that his manager provided his business card and suggested he could be a referee for work in his friend's fast-food shop.

• [32] The application alleges an adverse action is the prevention of attendance at an important training session. Attendance was unnecessary given that the Applicant was dismissed on 12 November 2021 and the training was scheduled for the following week. Prevention of attendance was due to the dismissal and not because of direct discrimination. Further, the Applicant states that his meetings were allocated after hours and on weekends, but no further submissions or evidence was tendered in relation to their relevance to allegations of general protection contraventions.

• [33] The Applicant's allegations of discrimination were contested by the Respondent. It is submitted that the Respondent is an equal opportunity employer and has policies and procedures in place concerning discrimination and other workplace protections. It submits that at no time did the Applicant allege discrimination until his dismissal. It further submits that its investigation of the allegations was unsubstantiated, and the allegations malign the manager who is married to someone of the same descent as the Applicant. The Respondent suggests the allegation that the manager would refer the Applicant to a friend's fast-food business is nonsensical and strongly challenges the application on merit.

• [34] In respect to the reason for dismissal, the Respondent submits that it is not required to provide a reason for dismissal when the decision is made to dismiss in a period of probation. However, to satisfy the Commission on the matter of merit it tendered in evidence materials in support of the decision to dismiss on the basis of poor performance. The Applicant alleged that he sold two forklifts, in response, the Respondent provided materials where it was discovered that the Applicant did not contribute to any sales orders. Evidence of commissions was tendered which showed guaranteed commissions were paid consistent with the terms of the contract of employment and two instances where the Applicant was present in a handover that entitled the payment of a commission, despite his lack of contribution to the sale.

• [35] The Applicant challenged dates in the National Key Accounts Manager's recollection of events, but the substance of the material was not challenged to affect the reason of poor performance for the dismissal. Other evidence of his failure to enter data into the CRM in respect to sales was not contested by the Applicant.

• [36] The Respondent submits that it informed the Applicant that his dismissal occurred because he failed to pass his probation period. In respect to its identification of poor performance, the Respondent cites no sales for the first two months of employment, no sales for the following month and that he deceitfully intimated that he sold two trucks. His manager at the time identified that no sales were made, and he was the lowest performing sales member of the team. In addition, it reports there were no order intakes for June to November 2021 and that he failed to enter data into the CRM despite repeated requests to do so. In addition to only making five entries into the CRM over 6 months, there were statements from managers and an email instructing him that it was inappropriate to make comments about the COVID-19 vaccine. Documentation in the form of reports, emails and correspondence from managers supports the contentions made by the Respondent.

• [37] Having considered the submissions and evidence tendered, on the face of the material tendered I cannot conclude that the Applicant has a meritorious application. While I have not tested the merit and it is not appropriate to do so in an extension of time, the uncontested evidence of the Respondent suggests a weak case by the Applicant that there is any alleged general protection contravention. Therefore, I do not consider this consideration in the Applicant's favour.

Fairness between the person and other persons in a like position

• [38] Neither the Applicant nor Respondent addressed this consideration. Consequently, I find this consideration neutral.

• [39] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

• [40] It is on the balance of the considerations that I have decided not to grant an extension of time.

• [41] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.

[1] [2011] FWAFB 975.

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

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