s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - extension of time - extension not granted - application dismissed

• [1] Ms Leonie Richardson (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 4 September 2024. The Applicant claimed that adverse action was taken against her by Happy Peeps Pty Ltd (the Respondent) under ss.340, 341 and 343 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant was dismissed on 8 August 2024. The Application is 6 days out of time from the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The Application can only be accepted if the Commission allows taking into the factors of s.366(2) which I have considered below.

• [3] The matter was listed for hearing on 21 November 2024. The Applicant was self-represented. The Respondent was represented by Mr Colin Dorber from Employer Protect. The Applicant did not object to Mr Dorber appearing and leave for the Respondent to be represented was granted under s.596 as the matter is factually complex, considering it involves the history of two matters.

Should an extension of time be granted under s.366(2) of the Act?

• [4] Section 366 of the Act provides when a further period is granted to accept a late application.

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(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.

• [5] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

• Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.

• • It can be 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. [1]

• [6] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however it must be an acceptable[2] or a reasonable explanation.[3]

• [7] A week after the Applicant was terminated, on 15 August 2024, the Applicant lodged an unfair dismissal application through the Commission website.

• [8] On 22 August 2024, the Applicant requested legal advice through the Commission's Workplace Advisory Service. The automatic reply email from the Commission states:

Please remember you only have 21 days from the date of dismissal to lodge an unfair

dismissal or general protections dismissal application. If you need help faster than that, other legal help is available.[4]

• [9] On 27 August 2024, the Commission provided a response stating that a lawyer from Legal Aid would contact the Applicant within 2 weeks. I note that the bottom of the email, in bold, reads as follows:

Some applications, like dismissal applications, have strict 21-day time limits. If you were dismissed and are nearing the 21-day time limit, you should lodge your application to the Commission as soon as possible.[5]

• [10] The Applicant claims that she was later told by either a member of Commission registry staff or Legal Aid, that the unfair dismissal application was not going to be accepted because there were "not enough staff". The Applicant had an appointment with Legal Aid on 4 September 2024.

• [11] I interpret the Applicant's statements to mean that she was informed that because she had only been employed by the Respondent for five months, she did not meet the minimum employment period and was not eligible for an unfair dismissal remedy.

• [12] The Applicant claims that she was not aware of the general protections application until 4 September 2024, when she had her appointment with Legal Aid. She filed the general protections application on the same day.

• [13] I note that ignorance of the 21-day statutory timeframe is not an acceptable reason for delay.[6] In my view, ignorance of the cause of action is also not an acceptable reason for delay, particularly where the Applicant was advised in writing of the existence of the "general protections dismissal application". The Applicant advised in the hearing that she did not read the Commission's email thoroughly.

• [14] The Applicant was not able to state clearly when she was contacted by the registry, however, I note that the Applicant was aware on 22 August 2024 that she did not meet the minimum employment period for unfair dismissal, as she included this detail in her request for legal advice.[7] The Applicant was aware that there would be a delay in obtaining legal advice.

• [15] Delay in obtaining legal advice is an entirely unexceptional event. I reject any submission that this provides an acceptable reason for delay in the Commission.

• [16] The Respondent submits that it is reasonable to infer from the fact that the Applicant filed an unfair dismissal application that the Applicant understood her options. I agree. The Applicant was clearly able to navigate the Commission website and file her application, as well as requesting legal advice.

• [17] I find that the Applicant has not provided a satisfactory explanation for the delay. This weighs against finding that there are exceptional circumstances for which the Commission should provide an extension of time.

(b) any action taken by the person to dispute the dismissal

• [18] The Applicant advised that she contacted the Respondent directly to ask why she had been dismissed and she states that she was not given an answer.

• [19] One week after the dismissal, the Applicant lodged an unfair dismissal application. This weighs in favour of finding that there are exceptional circumstances for which the Commission should provide an extension of time.

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

• [20] The Respondent did not provide any submissions on this point. I find that prejudice to the employer is neutral a consideration in these circumstances.

• [21] The Applicant alleged that she was terminated for taking sick leave. She submits that the Respondent has taken similar action in the past. When the Applicant was asked by the Respondent's representative to name the employee who was also terminated for using sick leave, she declined to do so. I do not think the Applicant's unwillingness to name another employee during a public hearing detracts from her argument.

• [22] Without a hearing on the merits, it is difficult to consider the merits of the Applicant's claim. I am satisfied that the Application was not without merit. Accordingly, I find this a neutral factor.

(e) fairness as between the person and other persons in a like position

• [23] The parties did not provide submissions on this point. I note that according to the Applicant, no other employees of the Respondent have been recently dismissed.

• [24] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[8] I note that in recent decisions of the Commission, such as Amiya v Sorbent Paper Company Pty Ltd [2024] FWC 3164, Hall v Moag Pty Ltd [2024] FWC 2992, Rallis v Clinical Laboratories Pty Ltd & Mr Nicholas Paul Champness [2024] FWC 2739 and Harvie v Churches Of Christ Care [2023] FWC 2724 other Members have declined to grant extensions of time to Applicants who initially filed an unfair dismissal application and then filed a general protections application out of time. I note in Rallis v Clinical Laboratories Pty Ltd & Mr Nicholas Paul Champness [2024] FWC 2739, Deputy President Millhouse was not persuaded by the Applicant's argument that the matter was legally complex, the Applicant was ignorant of her rights and that the Applicant was not legally represented.[9] This factor weighs against granting an extension of time.

• [25] I find that there are no exceptional circumstances in considering the above factors. I decline to exercise my discretion to provide an extension of time.

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

L. Richardson appearing for herself as the Applicant

C. Dorber appearing for the Respondent from Employer Protect

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[2] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[3] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[4] Email from the Commission to the Applicant, dated 22 August 2024

[5] Email from the Commission to the Applicant, dated 27 August 2024

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

[7] Email from the Commission to the Applicant, dated 22 August 2024

[8] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818, [31].

[9] Rallis v Clinical Laboratories Pty Ltd & Mr Nicholas Paul Champness [2024] FWC 2739, [22]

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