s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] Mrs Margaret Rallis made a general protections application involving dismissal pursuant to s 365 of the Fair Work Act 2009 (Cth) on 1 July 2024.

• [2] Section 365(1) of the Act prescribes that a general protections application involving dismissal must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). As the Form F8 application records,[1] the application was filed outside the 21-day statutory timeframe. Accordingly, Mrs Rallis requires an extension of time if her application is to proceed.

• [3] The application has been made against Clinical Laboratories Pty Ltd (Clinical Laboratories) and four of Mrs Rallis' former work colleagues. Clinical Laboratories objects to the application on the basis that it is out of time and further, because it contends that Mrs Rallis was not dismissed by it. This decision deals only with the out of time objection.

• [4] For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

• [5] It is not in dispute that Mrs Rallis' employment with Clinical Laboratories ceased on 8 May 2024.[2] On 23 May 2024, Mrs Rallis made an unfair dismissal application in the Commission pursuant to s 394 of the Act.[3] On 28 May 2024, Mrs Rallis made a general protections application involving dismissal pursuant to s 365 of the Act (first general protections application).[4] Each of these applications was made within the 21-day period after the dismissal took effect.

• [6] On 4 June 2024, Mrs Rallis filed a notice of discontinuance in respect of the unfair dismissal application, which brought that application to an end.[5]

• [7] On 28 June 2024, Deputy President Clancy convened a Mention in respect of the first general protections application. At the Mention, it was explained that s 725 of the Act operated to prevent Mrs Rallis from making the first general protections application because at the time it was made on 28 May 2024, the unfair dismissal application had not yet been withdrawn. Mrs Rallis discontinued the first general protections application during the course of the Mention on 28 June 2024.

• [8] Mrs Rallis made a fresh general protections application involving dismissal on 1 July 2024 (Application).

• [9] Having regard to the Mrs Rallis' effective dismissal date, for the Application to have been within time it must have been filed by midnight on 29 May 2024. The Application was filed on 1 July 2024. It is not in dispute that it was therefore made outside the statutory timeframe for lodgement.

• [10] The Commission has the power pursuant to s 366(2) of the Act to extend the time within which a general protections application involving dismissal can be made only if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty).[6] In order 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. 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.[7]

• [11] Under s 366(2) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

• [12] Noting the dispute between the parties as to whether Mrs Rallis was dismissed, or whether she resigned as Clinical Laboratories contends, I will proceed on the assumption - without deciding - that Mrs Rallis was dismissed by Clinical Laboratories, solely for the purposes of considering whether to grant a further period having regard to the matters in

s 366(2) of the Act.

• [13] I consider these matters in the analysis that follows.

Reason for the delay: s 366(2)(a)

• [14] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[8] or reasonable[9] explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[10]

• [15] The period of the delay to be considered is the period commencing immediately after the 21-day timeframe for lodging the application has expired.[11] However, the circumstances from the time the dismissal took effect must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[12]

• [16] In her written submissions in support of an extension of time, Mrs Rallis submits as follows:[13]

(1) Complexity of the case: Mrs Rallis contends that the nature of her dismissal involves "several intricate details that require careful examination and legal knowledge."

(2) Lack of legal representation: Mrs Rallis submits that without the guidance of a legal representative, she had to independently research and understand the procedural requirements, which was a time-consuming and challenging task.

(3) Efforts to comply: Mrs Rallis says that despite these challenges, she made diligent efforts to comply with the requirements and submit her application as promptly as possible.

• [17] Mrs Rallis further submits that she made a mistake by not withdrawing the unfair dismissal application before lodging the first general protections application on 28 May 2024.

• [18] During the hearing, Mrs Rallis gave evidence that following the conclusion of the Mention on 28 June 2024, she had taken the time to 1 July 2024 to submit the Application so as to avoid any further mistakes. Mrs Rallis explained that she would have engaged a representative but could not afford to do so.

• [19] I am satisfied on the evidence before the Commission that Mrs Rallis made a forensic decision to commence an unfair dismissal application in the Commission. She did not commence this application by mistake. Indeed, Mrs Rallis continues to urge the Commission to consider the merits of her "unfair dismissal" from Clinical Laboratories.[14] Subsequently, Mrs Rallis changed her mind and filed the first general protections application in the Commission. While the first general protections application was made within the 21-day statutory timeframe, it is not in dispute that it was invalid by reason of the application of s 725 of the Act.

• [20] I am not persuaded that the complexity of Mrs Rallis' case explains the delay in filing the Application before me. The application of s 725 to address multiple applications is not novel, unique or complex. It is intended to prevent a person "double-dipping," by limiting an applicant to a single application (and therefore, a single remedy) in the circumstances explained in ss 726 to 732 of the Act. These provisions were triggered solely by reason of the fact that Mrs Rallis changed her mind about progressing with her unfair dismissal application. Mrs Rallis' change of mind does not provide an acceptable or reasonable explanation for the delay.

• [21] To the extent that Mrs Rallis relies upon the complexity of the issues arising in her substantive case, this is not a matter that I consider provides a credible explanation for the delay. This is particularly so in circumstances where the content of the Application largely replicates the contentions advanced by Mrs Rallis in the first general protections application (which was made within time). I otherwise consider the merits of Mrs Rallis' substantive application as part of my assessment of the matters at s 366(2)(d) below.

• [22] Mrs Rallis explains that the application of s 725 of the Act to her first general protections application was a "technicality," occasioned by her unfamiliarity with the law. I have taken into consideration Mrs Rallis' contention that she has not had prior experience filing applications in the Commission and made a mistake. However, such unfamiliarity is not exceptional and ignorance of one's rights does not provide an acceptable explanation for the delay.[15] The Commission's website provides a range of information about the types of applications that can be made, the eligibility rules, the lodgement timeframes and the fact that multiple actions in relation to the same dismissal are not permitted. Nor am I persuaded that the absence of a legal representative provides a reasonable explanation for the delay. The Commission's file demonstrates that Mrs Rallis was able to successfully make (and discontinue) multiple applications in the Commission, and appear for herself, absent the assistance of a representative.

• [23] Mrs Rallis submits that despite these matters, she made diligent efforts to submit the Application as promptly as possible. However, the Commission's records demonstrate that Mrs Rallis discontinued her first general protections application on the morning of 28 June 2024 and did not lodge the Application until 4:52 pm on 1 July 2024. Mrs Rallis explains this aspect of the delay, which covers a weekend, as being necessary to ensure that the Application did not contain any mistakes. However, as earlier noted, there is little material difference between the content of the Application when compared to the first general protections application. I regard this aspect of the delay to be significant in the context of this application, and do not consider that Mrs Rallis has provided a credible reason to explain it, despite being given the opportunity to do so.

• [24] For the reasons given, I do not find that any of the matters relied upon by Mrs Rallis as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the grant of an extension of time.

Action taken by the person to dispute the dismissal: s 366(2)(b)

• [25] Where an applicant takes action to dispute a dismissal (other than by lodging the relevant application), it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[16]

• [26] The evidence discloses that Mrs Rallis wrote to the respondent on 8 May 2024 to raise concerns about her employment. Clinical Laboratories refers to this as Mrs Rallis' notice of resignation.[17] Mrs Rallis gave evidence that after she provided this email to Clinical Laboratories, she did not receive a response. Thereafter, Mrs Rallis took steps to contest what she regards to be her dismissal by commencing the unfair dismissal application, and then the first general protections application. To the extent that the consideration in s 366(2)(b) requires the Commission to take into account any action (other than the relevant Application under consideration before me), I am satisfied that these earlier proceedings - while ultimately discontinued - placed the responding parties on notice that the dismissal was actively challenged. This weighs in favour of the grant of an extension of time.

• [27] I cannot identify any prejudice that would accrue to Clinical Laboratories were an extension of time to be granted in Mrs Rallis' favour. Clinical Laboratories' submissions do not persuade me otherwise.

• [28] The mere absence of prejudice is not in itself a factor that would point in favour of the grant of an extension of time. I consider this to be a neutral factor.

• [29] For the consideration in s 366(2)(d) to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[18] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mrs Rallis' Application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive Application in determining whether to grant an extension of time.[19]

• [30] In the Application Mrs Rallis contends, in summary, as follows:[20]

(1) Mrs Rallis says that she is a scientist with over 11 years of experience and has been in a classification/wage dispute with Clinical Laboratories since 2019.

(2) Mrs Rallis says that Clinical Laboratories ignored her repeated requests to rectify her concerns. When Mrs Rallis referred these matters to human resources and the union, she says that adverse action was taken against her in the form of a public demotion that aimed to embarrass, humiliate and intimidate her. This is said to have caused Mrs Rallis extensive professional defamation.

(3) Mrs Rallis says her position was changed to part-time from permanent full-time and she had to fight to be returned to full time employment. Mrs Rallis says she was repeatedly and systematically discriminated against and denied all opportunities for professional development.

(4) In January 2022, Mrs Rallis says that she was returned to scientist duties but paid as a technician and efforts to resolve this dispute were unsuccessful.

(5) Mrs Rallis submits that her requests that bullying behaviour be investigated were ignored by Clinical Laboratories and attempts to seek justice were met with derision and contempt. Mrs Rallis says that she felt she had no choice but to resign as she could no longer work in a hostile environment where her rights are disregarded, and her dignity is compromised.

• [31] Clinical Laboratories submits that the Application is unmeritorious. It says that it participated in multiple applications commenced by Mrs Rallis in the Commission during her employment in relation to her classification-related concerns. It says that Mrs Rallis made a decision to voluntarily resign from her employment and this decision was not forced by its conduct.

• [32] The parties hold substantially different views as to the matters that preceded the cessation of employment. I observe that were an extension of time granted, Mrs Rallis would be required to satisfy the Commission that her resignation was not given voluntarily, but rather was forced by the conduct of Clinical Laboratories. Further, the allegations of adverse action turn on contested points of fact, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a view about these matters. In the circumstances, I regard the merits of Mrs Rallis' substantive general protections Application to be a neutral factor in my assessment of whether to grant an extension of time.

Fairness as between Mrs Rallis and other persons in a similar position: s 366(2)(e)

• [33] Mrs Rallis contends that she was constructively dismissed by Clinical Laboratories and that her dismissal was unfair. Clinical Laboratories' position is that the grant of an extension of time to Mrs Rallis would not be fair and just, having regard to other applicants before the Commission who have had their applications for an extension of time denied.

• [34] Applications to extend time generally turn on their own facts. Neither party has brought to my attention any matters of fairness relevant to this consideration. Accordingly, this factor is neutral in my consideration.

• [35] The statutory time limit that applies to the exercise of a person's right to bring a general protections application involving dismissal reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 366(2) of the Act establishes a high hurdle for an applicant for an extension of time.[21] The Commission must be satisfied that there are exceptional circumstances supporting an extension of time.

• [36] I have taken into account the fact that Mrs Rallis took steps to dispute her dismissal from Clinical Laboratories. However, Mrs Rallis has not provided an acceptable or reasonable explanation for the delay in lodging the Application before me, including - significantly, in my view - in relation to the period between 28 June 2024, when the first general protections application was discontinued, and 1 July 2024 when the current Application was filed. This weighs against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together.

• [37] As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Mrs Rallis' Application may be made is not enlivened. It is therefore unnecessary for me to determine Clinical Laboratories' second objection to the application, that Mrs Rallis was not dismissed.[22]

• [38] Mrs Rallis' general protections application is dismissed.

[1] Digital Court Book (DCB) 27 at [1.5]

[2] DCB 27 at [1.4]; DCB 11; DCB 13 at [3]

[4] DCB 9; DCB 4

[6] [2011] FWAFB 975, 203 IR 1

[8] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9]

[9] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16]

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39]

[11] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]

[12] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]

[15] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1 at [14]

[16] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

[18] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71]

[19] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14]

[21] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21]

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