Fair Work Act 2009

s.365 - General protections

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances - application dismissed.

[1] This matter concerns an application made by Michelle Young for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Ms Young was first employed by the Respondent, Braziliant Pty Ltd (Braziliant), which operates a business in Lilydale, Victoria, known as "Hello Harry Lilydale", on or around 2 January 2018. Ms Young's application was received by the Commission on 8 October 2018.

[2] Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. Ms Young's employment with Braziliant came to an end on 24 August 2018. Accordingly, her application is out of time by 24 days.

[3] In considering an application for an extension of time for the making of an unfair dismissal application, the Act requires satisfaction that there are exceptional circumstances to warrant the extension, taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[1] A decision as to whether to extend the time period under s.366(2) involves the exercise of a discretion.[2]

[4] In this decision, I have considered whether an extension of time should be granted to Ms Young for the making of her application and, for the reasons set out below, I am not satisfied that there are exceptional circumstances such that a further period for filing should be allowed.

[5] In the hearing of this matter, the Applicant, Michelle Young, was unrepresented. Braziliant was represented by an employee of the business, Jarrod Dempster.

[6] Ms Young filed a written statement in proceedings, which she had prepared previously for workers compensation purposes and which was not the subject of cross-examination. This statement discloses that:

• Ms Young worked as a cook, initially for between 40 and 45 hours per week working a Tuesday to Saturday roster;

• In August 2018 Ms Young questioned her pay with Mr Dempster, which then led to some conflict between the parties; and

• In relation to this conflict, the statement alleges that Ms Young first had her payment rate reduced and then subsequently her hours were cut as well.

[7] In the course of the hearing both Ms Young and Mr Dempster spoke to the outcome of a mediation conducted by the Fair Work Ombudsman dealing with the subject of her pay. The evidence is unclear though as to precisely when this was other than it being at some stage during August 2018. Mr Dempster said that the outcome was that the mediator was successful in achieving an agreement between the two parties about monies owing to Ms Young as well as the basis of future payment. However, the outcome has not been provided to the Commission.

[8] On 15 August 2018 an altercation ensued between Ms Young and Mr Dempster about the Applicant's payment. The circumstances of the altercation are set out within Ms Young's workers compensation statement. Ms Young says that on that day Mr Dempster took her into the kitchen and asked her to sign two annual leave forms for 18 and 29 August 2018 which she did. They then argued about Ms Young's classification after which Ms Young said she would resign:

"32 I got 'worked up' after that... I had only been there an hour but I didn't think I could stay there. I wanted to get away from Jarrod.

33. I said to him 'I'm not quitting Jarrod, I'm going on stress leave. I feel side. I don't know how you sleep at night, the way you treat people, Maddie and myself is disgusting'

34. I said to him 'pay me what you owe me and I'm happy to resign.' Then I walked out the back door. I got angry. As I walked down the steps I thought 'I'm not going to get paid'. So I walked back up the steps and said to him 'you've got 72 hours fucking hours to pay me my money Jarrod.'

35. He paid me almost 72 hours later to the minute.

[9] Mr Dempster disputes much of Ms Young's version of events, and her characterisation of what occurred.

[10] Ms Young agrees that she ended her employment for a resignation, which is also accepted by Mr Dempster, although he does not accept some of the characterisations or alleged factual circumstances set out within Ms Young's workers compensation statement. The resignation email referred to in the quotation from the workers compensation statement above is not before the Commission.

[11] With Ms Young having confirmed the ending of her employment in an email she sent to her employer on Friday, 24 August 2018, she commenced an unfair dismissal application against Braziliant on 27 August 2018 (matter number U2018/8755). That application was responded to in the usual course by the Respondent which objected to a continuation of the application for the reason that Ms Young had not at the time her dismissal took effect, completed the minimum employment period. The Braziliant response form, filed in the Fair Work Commission on 21 September 2018, sets out that the company was a small business, in which case the minimum employment period for Ms Young would be a period of 12 months continuous employment.

[12] The Commission's file in relation to U2018/8755 notes that on 27 September 2018 Ms Young was advised by the Commission staff member by telephone that the application was now listed for a jurisdictional objection hearing. She was informed about the Commission's Workplace Advisory Service and advised that if she was "interested in participating" she should sign and return a consent form which would be provided to her. On the same day similar information was provided to the Respondent. Further, also on 27 September 2018, a Notice of Listing for the jurisdictional objection was emailed to the parties which advised that the matter was set down for hearing for jurisdictional purposes on 26 October 2018 and gave directions to both parties for the filing of their respective material. Braziliant was required to file its material by 8 October 2018 and Ms Young by 18 October 2018.

[13] Ms Young received the information about the Commission's Workplace Advisory Service and returned the necessary paperwork to initiate her access to the program. On or around Thursday, 4 October 2018 Ms Young spoke with a lawyer from one of the firms involved in the service. The precise nature of the advice given to Ms Young is not before the Commission. After receiving the legal advice on 4 October 2018, Ms Young spoke by telephone with the Commission staff at about 11:01 AM and discontinued the unfair dismissal application.

[14] Having discontinued the first unfair dismissal matter, Ms Young commenced another unfair dismissal application, which was also done on 4 October 2018 at about 11:31 PM. The application was made through the Commission's online lodgement system. While the automated application summary indicated that the application was a general protections one, the form filed by Ms Young was an unfair dismissal form. The Commission's file in relation to that matter, U2018/10283, records some general activity on the file on 5 October 2018 associated with receiving the application, noting that the necessary jurisdictional information had not been entered and that the form was incomplete; as well as noting that the relevant fee had not been paid. On Monday, 8 October 2018 the file records contact between a Commission staff member and Ms Young in which the staff member confirmed that Ms Young's intentions were to lodge a general protections application. Although not recorded as having been formally discontinued, the application appears to be the subject of what should reasonably be viewed as a telephone discontinuance, and in any event the matter has not progressed any further.

[15] Ms Young said in the course of the hearing in relation to this matter that she did not recall having made the second unfair dismissal application.

[16] This application, C2018/5589 was commenced by Ms Young emailing her application to the Commission on the morning of Monday, 8 October 2018.

[17] The alleged contravention set out within the application is that having raised a complaint with her employer regarding payment of wages, Ms Young was removed from rosters, underpaid further and then forced out of the workplace.

[18] Relevant to the Commission's consideration of this question are the provisions in s.366 of the Act:

(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."

Extension of time - the criteria within s.366(2)

[19] A decision to allow a further period for making an application requires the Commission to be satisfied that there are "exceptional circumstances", taking into account the five nominated criteria. The Full Bench has held the following in relation to "exceptional circumstances", in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application:

"[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".[3]

[20] In considering whether an extension of time should be granted to Ms Young, I am required to consider all of the criteria in s.366(2), which I now do.

[21] It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters, as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[4] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[5] An applicant does not 'need to provide a credible explanation for the entire period'; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[6] While the "reason for the delay" is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[7]

[22] The "delay" to be considered in this case is the period it took after the prescribed period for Ms Young to lodge her application. With Ms Young's employment ending on 24 August 2018, for an application to be within time it would need to have been made no later than 14 September 2018. As a result, the delay to be considered is the period after 14 September until the actual lodgement dated 8 October 2018.

[23] Ms Young's explanation for her late lodgement of this matter is that she was unable to obtain legal advice about her circumstances and her desire to take action against a former employer until the time she was assisted by a lawyer working under the Commission's Workplace Advisory Service on or around 4 October 2018. I accept that the second of the three applications made by Ms Young, namely the second unfair dismissal application, U2018/10283, was made in error when she submitted a further unfair dismissal form to the Commission, but with an indication on the online lodgement system that she was endeavouring to make a general protections application.

[24] On Ms Young's argument, the Commission should be satisfied that this application was made when it was since she was always endeavouring to make a general protections application; that she only obtained legal advice on the subject relatively late in the process; and that it should be accepted by the Commission that the late lodgement of this matter was merely correcting an earlier incorrect unfair dismissal application filing, made on 27 August 2018.

[25] The Commission has previously held that "the legislative scheme for a general protections application is quite distinct from that pertaining to an unfair dismissal application. The former is a regime to provide protection with respect to workplace rights; freedom of association and discrimination. The latter is to provide a framework for dealing with unfair dismissal".[8] As a result, the Full Bench has found there must be serious reservations about whether it is open to an unfair dismissal applicant merely to convert their application made in error for a general protections application.[9] Instead it is necessary for a person seeking to change the nature of their unfair dismissal application into a general protections application to recommence the process. It is accepted that in such cases, where the further application is out of time, it would be necessary for the substituting applicant to show that there are exceptional circumstances that would warrant an extension of time for the making of the fresh application.[10]

[26] It is be noted that the legal advice sought by Ms Young, on around 4 October 2018 was after Braziliant had notified an objection to the unfair dismissal application continuing for reason that Ms Young had not completed the minimum employment period, with that response being filed on 21 September 2018. It was also after the Commission had programmed a jurisdictional hearing on the subject and had notified the parties that they would need to file material in relation to the jurisdictional objection. The Notice of Listing was circulated to the parties on 27 September 2018, with the Respondent being given until 8 October 2018 to file its material and Ms Young until 18 October 2018.

[27] The response filed by Braziliant in matter number U2018/8755 indicated both that the Respondent contended that Ms Young had not been dismissed, but had resigned, as well as that the company was a small business employer with only 7 employees at the time she ended her employment. The employer response, together with the originating application showed that Ms Young had worked for Braziliant for only 7 months.

[28] Within this context, it is plain that the original unfair dismissal application was ended by Ms Young on 4 October 2018 when it became apparent to her that the application had no hope of success with the most likely finding of the Commission to be that she had not completed the minimum employment period, which in the case of a small business employer would be 12 months. Shortly after, she attempted to switch jurisdictions and make a general protection application.

[29] The Commission has held that mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.[11] It is also the case that it is not out of the ordinary course, or unusual, or special, or uncommon for a person to be acting on their own without advice, or to be called upon to make a choice about the form of action against a former employer. There is ample information available through the Commission's website and elsewhere that sets out the merits of the respective forms of application that may be made. Care should be taken by any person contemplating making an application after the end of their employment about which type of application may be made. The fact that a person insufficiently reads the available material and ends up making the wrong form of application is also not an exceptional circumstance.

[30] As a result, I do not find that Ms Young has put forward an acceptable explanation for the delay in making her application. Therefore, my consideration of this criterion does not resolve in her favour in my consideration of whether an extension of time for filing should be granted.

1. Any action taken by the person to dispute the dismissal

[31] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[12]

[32] The action taken by Ms Young to dispute the ending of her employment with Braziliant are the three applications she has made to the Fair Work Commission. In the circumstances consideration of this criterion resolves in favour of Ms Young.

1. Prejudice to the employer (including prejudice caused by the delay)

[33] The delay in the filing of the application is 24 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[34] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However, the Commission's consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.[13]

[35] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter also is a neutral factor in my consideration.

[36] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.

[37] In relation to the Commission's consideration of the merits of an application, when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission's consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[14]

[38] In general protections matters, s.361(1) of the Act presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question.[15]

[39] In Ms Young's case she puts forward that the end of her employment came about as result of adverse action taken by Braziliant in the form of removal from rosters, further underpayment of wages and bullying after she raised a matter of alleged underpayment with the Respondent. It is accepted by Ms Young that the end of her employment was in the form of resignation, initially given verbally and then confirmed in writing. Her argument appears to be that she was forced into giving a resignation when she did not wish to do so. The possibility that her resignation was a "heat of the moment" matter is live, however the evidence on the subject is untested at this time. It is possible that a full hearing on the subject, with the testing of Ms Young's own evidence as well as that of the Respondent's may not lead to an acceptance that hers was a forced resignation.

[40] Even in the event that it were accepted that Ms Young had ended her employment through a forced resignation, success with her general protections application would depend upon her demonstrating that her resignation had been forced because of the workplace rights she exercised. Again, and on the basis of the limited material before the Commission at this time, there would be at least some uncertainty that a full hearing would hold in favour of Ms Young on these matters.

[41] Accordingly, and mainly since Ms Young's contentions are untested, consideration of this criterion is a neutral factor in my overall consideration of whether there are exceptional circumstances that would warrant the extension of time.

1. Fairness as between the person and other persons in a like position

[42] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past.[16] There is no evidence on such matters and I consider this to be a neutral consideration in Ms Young's case.

[43] Consideration of the statutory criteria in relation to exceptional circumstances shows that none of the criteria resolve in favour of Ms Young and in particular there is not an acceptable explanation for the delay in making her application. Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are not exceptional circumstances that would allow a further period for a general protections application to be made by Ms Young.

[44] For these reasons, I decline to grant an extension of time pursuant to s.366 of the Act and will issue an Order dismissing Ms Young's application at the same time as this decision.

[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 [21].

[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [9].

[3] Nulty v Blue Star Group, [2011] FWAFB 975 (2011), 203 IR 1 at [13].

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

[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[8] Nicolas v Nortask Pty Ltd [2014] FWC 5324, [38]; and affirmed in Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660, [19].

[9] Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660, [22].

[11] Nulty v Blue Star Group [2011] FWAFB 975, (2011), 203 IR 1 at [14].

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

[13] Cowie v State Electricity Commission of Victoria [1964] VicRp 103; [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

[14] Haining v Deputy President Drake (1998) 87 FCR 248, 250.

[15] Keep v Performance Automobiles Pty Ltd [2014] FWCFB 8941 [50][2014] FWCFB 8941; , (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, (2012) 220 IR 445.

[16] Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

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