Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - request for extension of time to file application outside of 21-day time period - application filed 51 days late - application preceded by unfair dismissal application that was discontinued by applicant after conciliation - no exceptional circumstances - application dismissed.

• [1] On 13 August 2022, Ms Kylie Sharon Monks (Applicant) filed a general protections involving dismissal application (under s.365 of the Fair Work Act 2009 (Act)) with the Fair Work Commission (Commission). The Applicant alleges that she was dismissed by Credwell Personnel Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.

• [2] Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow (subject to satisfaction as to the existence of "exceptional circumstances", as required by s.366(2) of the Act).

• [3] The parties are not in dispute that the Applicant was "dismissed" on 2 June 2022. Nor are they in dispute that the Applicant was notified in writing of her dismissal by way of letter dated 26 May 2022.

• [4] The Applicant should have filed her Application on or before 23 June 2022. Given that the Applicant filed her Application on 13 August 2022, it has been filed 51 days past the 21-day statutory time limit. She now seeks an extension of time to file her Application.

• [5] The Respondent opposes any extension of time being granted. It also says that the Application is frivolous and/or vexatious. Given that I have determined that there are no exceptional circumstances giving rise to a discretion to grant an extension of time for the Application to be filed, it has not been necessary for me to consider whether or not the Application is frivolous or vexatious.[1]

• [6] At the hearing on 10 October 2022, the Applicant appeared for herself, and Mr Chris McArdle, Principal Lawyer, McArdle Legal, appeared (with permission)[2] on behalf of the Respondent.

• [7] Section 366(2) of the Act reads:

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

(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] Granting an extension of time requires me to be "satisfied" that there are exceptional circumstances. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term "exceptional circumstances", has stated:

"[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.

[14] Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance..."[3]

[15] A finding that there are "exceptional circumstances", taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when "exceptional circumstances" are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended."[4]

• [9] In Mohammed Ayub v NSW Trains[5], a Full Bench of this Commission described "exceptional circumstances" (in the context of an out of time application) as being a "very high bar" and "strictly limited".

• [10] The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[6]:

"[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

[19] To take a matter into account means that the matter is a 'relevant consideration' in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

'To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant'.

[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."[7]

• [11] On the issue of reason for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group[9] (Bianco Mamo), as follows:

"[11] The test invariably applied in such matters is whether an applicant has a 'credible or reasonable' explanation for the delay. The reasonableness of an applicant's explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances."

• [12] Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[10] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[11]

• [13] The Applicant's reasons for delay are as follows:

a) she filed an unfair dismissal application within 21-days of her dismissal (on 19 June 2022).

b) after unsuccessful conciliation of her unfair dismissal application (on 21 July 2022), she subsequently sought legal advice and was advised that she should have filed a general protections application involving a dismissal (instead of an unfair dismissal application);

1. on 27 July 2022, at 3.46pm, the Applicant emailed the Commission's Registry requesting that her unfair dismissal application be converted into a general protections involving dismissal application;

• d) on 8 August 2022 she was advised by an employee of the Fair Work Commission (over the telephone) that an unfair dismissal application cannot be converted into a general protections involving dismissal application, and that if she wished to make that change, she would need to withdraw her current unfair dismissal application and file a new general protections application involving a dismissal application;[12]

e) she filed her Application (in this matter) on 13 August 2022;

• f) after a Case Management Conference before Commissioner Ryan on 23 August 2022, her unfair dismissal application was discontinued;[13] and

g) just prior to the conciliation of her unfair dismissal application, she had become aware that the Respondent had placed a "gag order" on its staff directing them not to provide the Applicant with a reference.

• [14] I do not accept that the reasons advanced by the Applicant, for the 51 day delay in filing her Application, are either credible or reasonable. Nor do they adequately explain the delay. In this regard:

a) The Applicant was aware of the 21-day time limit to file her Application given that she filed her unfair dismissal application within 21-days. In any event, ignorance of the 21-day time limit is not an acceptable reason for delay, let alone one that would constitute exceptional circumstances (Nulty, at [14]).

b) The Applicant did not tender the legal advice she allegedly received causing her to discontinue her unfair dismissal application, and file this Application. Whilst the tender of such advice would likely make no difference, the point is that her contention in this regard is not supported by cogent evidence.

1. The Commission is an independent tribunal. Its information services (via the telephone, or over the internet) provide knowledge, not advice. To be clear, the Commission does not provide legal advice. Further, the Applicant did not particularise at the hearing the content of the conversation she had with the relevant Commission staff member on 8 August 2022. Again, whilst such information would likely make no difference, the point is that her contentions in this regard are not supported by cogent evidence.

d) I concur with the submissions of Mr McArdle to the effect that given that both of the applications filed with the Commission by the Applicant mirror each other, the Applicant's decision to withdraw her unfair dismissal application and file this Application was simply a "choice" she made, being a choice that does not constitute exceptional circumstances. I also agree with Mr McArdle's submission that given that the central argument that the Applicant advances in respect of her dismissal is that it was a non-genuine or sham redundancy, there is no reason as to why such an argument could not have been agitated in her unfair dismissal application.

• [15] In summary, I find that the Applicant's reasons for delay in this matter weigh against a finding of the existence of exceptional circumstances.

Action taken by the Applicant to dispute her dismissal[14]

• [16] The Applicant disputed her dismissal at or around the time that she was notified of same, and filed an unfair dismissal application. I do not consider this conduct to be such that weighs in favour of a finding as to the existence of exceptional circumstances. I therefore treat the criterion under s.366(2)(b) of the Act as a neutral consideration.

• [17] The Respondent submits that prejudice arises if this application is accepted out of time because:

a) the Application is meritless. The Applicant was dismissed for reasons of genuine redundancy after relevant consultation;

b) the Respondent will be forced to expend time and resources to defend an application lodged outside of the statutory (or presumptive) 21-day time period; and

1. the Respondent has already spent time and resources engaging with the Applicant's (discontinued) unfair dismissal application, including via replying to that Application and attending two unsuccessful conciliation or other conferences before the Commission (one before a staff conciliator, and one before Commissioner Ryan).

• [18] I accept that the prejudice identified and suffered by the Respondent in this case is beyond that ordinarily encountered by an employer faced with a general protections involving dismissal application filed within time, that has not been preceded by an earlier unfair dismissal application involving the same facts and issues. I therefore treat this criterion as one that weighs against any finding as to the existence of exceptional circumstances.

• [19] The principles stated Kyvelos v Champion Socks Pty Ltd[17] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:

"In considering whether to accept an application which has been lodged outside the time ... the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar ... It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application ... In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case ...".[18]

• [20] In Kornicki v Telstra-Network Technology Group,[19] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under s.170CE(8) of the (repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application:

"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."[20]

• [21] In her Application, the Applicant makes allegations as to contravention by the Respondent of ss. 340, 343, 344, 351 and 352 of the Act. For its part, the Respondent denies the allegations as to contravention, and says that the Applicant was dismissed for only reasons of redundancy.

• [22] The merits of the Applicant's case, by reference to her allegations, and the Respondent's counter assertions, were not fully tested before me (i.e. it is not the role of the Commission to "embark [upon] a detailed consideration of the substantive case" for the purpose of determining whether to grant an extension of time to an applicant to lodge his or her application).[21] All in all, given the very limited evidence before me, and the disputed issues between the parties which were unable to be resolved at the hearing, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits neither for nor against any finding as to the existence of exceptional circumstances in this case.

Fairness as between the Applicant and other persons in a similar position[22]

• [23] I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[23] Given that neither party made relevant submissions on this issue, and I am not aware of any cases where there have been the same, or similar, characteristics and/or circumstances, I treat this criterion as a neutral consideration.

• [24] I have taken into account the criteria set out under s.366(2)(a)-(e) of the Act. In this regard:

(a) none of the requisite criteria, considered individually, point towards the existence of exceptional circumstances; and

(b) considering the requisite criteria on a collective basis, there is no basis for me to find that exceptional circumstances exist (i.e. two criteria weigh against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[24]

• [25] On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances in this case.[25] In view of this finding, there is no basis at law for me to grant an extension of time. I therefore reject the Applicant's request for an extension of time. The Application filed by the Applicant in these proceedings is dismissed. An Order to this effect will be published contemporaneously with this decision.

Ms Kylie Sharon Monks (the Applicant), appeared for herself.

Ms Chris McArdle, Principal Lawyer, McArdle Legal, appeared (with permission) for the Respondent

[3] [2011] FWAFB 975.

[5] [2016] FWCFB 5500.

[6] [2018] FWCFB 901.

[7] Ibid, at [17], [19], [38]-[39].

[8] Section 366(2)(a), Fair Work Act 2009.

[9] [2021] FWC 3903.

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

[12] See Fair Work Commission Case HQ notes for 8 August 2022.

[13] Email from Associate to Commissioner Ryan, 23 August 2022, 11.41am.

[14] Section 366(2)(b), Fair Work Act 2009.

[15] Section 366(2)(c), Fair Work Act 2009.

[16] Section 366(2)(d), Fair Work Act 2009.

[17] (1995) 67 IR 298.

[19] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).

[20] Ibid. See also Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [36].

[21] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd [2021] FWC 5962, at [33].

[22] Section 366(2)(e), Fair Work Act 2009.

[23] Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].

[24] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.

[25] Again noting the definition of "exceptional circumstances" set out in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [13].

Printed by authority of the Commonwealth Government Printer