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[2020] FWC 5366
General information, not legal advice.
Fair Work Commission
2020-10-07
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with contraventions involving dismissal - jurisdictional objection - out of time - extension of time consideration.
[1] On 3 July 2020, Mr Ahmad Soubra ("the Applicant") lodged an application (the "Application") pursuant to s.365 of the Fair Work Act 2009 (Cth) (the "Act"). The Applicant was employed by Adapt-A-Lift Group Pty Ltd (the "Respondent") and commenced his employment with the Respondent on 18 June 2018. The Applicant claimed that he was dismissed with that dismissal taking effect on 27 March 2020.
[2] General Protections Applications involving dismissal must be made within 21 days after a dismissal takes effect or in such further time that the Fair Work Commission (the "Commission") allows. As the dismissal took effect on 27 March 2020, the Application should have been lodged by no later than 17 April 2020. The Application was therefore 84 days late.
[3] Section 366 of the Act determines the permissible time limit for a general protections application, and provides:
(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)."
[4] The Applicant acknowledged in the Application that he was making that Application later than 21 calendar days of his dismissal taking effect. He said:
"Since the Applicant made his unfair dismissal application (U2020/4431) within 21 working days of his dismissal he has hired a Legal Representative.
Since he lodged his unfair dismissal application, the Applicant has been provided information from the Respondent that has shed crucial light on his dismissal that means he seeks to change his application from one of unfair dismissal to a general protections dismissal."
[5] As the Application was lodged outside of the 21 day timeframe prescribed by s. 366(a), I must satisfy myself that a 'further period' should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:
"(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."
[6] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s. 366(2) of the Act, there are exceptional circumstances.
[7] On 10 August 2020, directions were issued to program the manner in which the application was to proceed ("the Directions"), requiring the filing of materials for the determination of whether the Applicant would be allowed an additional period within which to lodge the Application
[8] The parties complied with the Directions. In Particular:
(a) On 11 September 2020, the Applicant filed an Outline of Submissions regarding extension of time (the "Applicant's Submission"); and
(b) On 18 September 2020, the Respondent filed an Outline of Submissions (the "Respondent's Submission"), and a Statement of Mr Owen Delaney, a Field Service Supervisor of the Respondent.
[9] The relevant facts of the matter, as disclosed by the materials filed and the evidence adduced at the hearing of the matter, are as follows:
(a) On 14 June 2018, the Applicant commenced work with the Respondent. He was employed as a Field Service Technician on a full-time basis.
(b) On 26 March 2020, the Respondent notified the Applicant, in writing, that the Respondent had experienced a sudden downturn in work due to the COVID19 pandemic, and that due to a restructure, the Applicant's role was redundant. The Applicant's employment would terminate by reason of redundancy effective 27 March 2020.
(c) The Respondent made 37 jobs (including the Applicant's) redundant in March 2020. The Applicant was one of four Field Service Technicians in NSW dismissed on the basis of redundancy that month.
(d) On 8 April 2020, thirteen days after his dismissal, the Applicant submitted an application for an unfair dismissal remedy (the "UD Application") under s. 394 of the Act to the Commission (matter U2020/4431). The Applicant prepared the UD Application himself, before he had the opportunity to gain legal advice.
(e) On 23 April 2020, the Respondent filed an employer response to the UD Application.
(f) On 18 May 2020, the Applicant and the Respondent attended a conciliation conference in the Commission in relation to the UD Application, however that conciliation was unsuccessful.
(g) On or about 28 May 2020, the Applicant secured legal representation.
(h) On 9 June 2020, the Commission made directions in the UD Application for the filing of submissions and evidence, and the listing of the matter for a hearing in relation to the jurisdictional objection regarding genuine redundancy.
(i) On 25 June 2020, the Respondent filed submissions in the UD Application regarding the jurisdictional objection. Those materials identified that Mr Delaney, a Field Service Supervisor whom the Applicant claimed had bullied him on 23 March 2020, was involved in the determination to dismiss the Applicant on 27 March 2020.
(j) On 3 July 2020, the Applicant filed the Application pursuant to s. 365.
(k) On 6 July 2020, the Applicant received a document from the Fair Work Commission regarding the two applications on foot.
(l) On 7 July 2020, the Applicant filed a F50 - 'Notice of Discontinuance' for the UD Application.
The Applicant's Submission Regarding "Double Dipping Prohibition"
s.725 Fair Work Act General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
s729 of the Act provides:
(1) This section applies if:
(a) an unfair dismissal application has been made by the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.
(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal
Thus provided the applicants circumstances do not fall foul of s729(1)(b)(i) to (iii), then the applicant is not prevented from making an additional General Protections claim. Given the applicant withdrew his Unfair Dismissal application on 7 July 2020, the applicant should not be prevented from proceeding with his General Protections claim on the basis of the anti-double dipping provisions alone.
Further, the Explanatory Memorandum to the Fair Work Act expressly considers circumstances where an applicant should be permitted to 'change their remedy' if it suits their circumstances. Thus the Fair Work Act 2009, Explanatory Memorandum relevantly provides:
2710. In all cases the anti-double dipping provisions will not apply where the initial application has;
- been withdrawn; or
- failed for want of jurisdiction.
2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.
It is relevant to observe that the Explanatory Memorandum shows the legislature was mindful of not eroding an applicant's rights beyond the sensible prohibition of litigating the same matter twice."
[11] In the hearing of the matter, the Applicant submitted the above mentioned provisions, and the clauses of the Explanatory Memorandum, disclosed that in circumstances where an initial unfair dismissal action is withdrawn and replaced with an alternative general protections action, that an applicant will not be prevented from making that further general protections claim. Essentially, the Applicant asserted that those provisions were additional to the considerations outline in s. 366(2), and favoured the acceptance of the replacement claim even if out of time. The Applicant submitted:
"By applying the decision of Ioannou v Northern Building Supplies Pty Ltd [2014] FWCFB 6660, an applicant is not permitted to simply amend an application to change from an unfair dismissal application to a General Protections claim. Instead, an applicant who seeks to alter their application for a dismissal remedy must 'run the gauntlet' by satisfying s 366(2) of the Fair Work Act. Further an applicant is only permitted to 'run the gauntlet' after they have withdrawn their original application. This situation creates a difficulty for the applicant that may well be beyond the power of the Fair Work Commission as it is inconsistent with the explanatory memorandum as it offends the reasoning described in item 2711:
This is intended to ensure that a person does not miss out on a remedy...where they have realised another remedy may be more appropriate than the remedy they initially sought."
[12] I reject the Applicant's submission. The provisions of subdivision B of Division 3, Part 6.1 of the Act do not deal at all with extension of time within which to make an application. Insofar as general protections applications, s. 366(2) outlines the only factors to be considered in relation to the extension of time to make such applications.
Consideration of s.366(2) Factors
[13] I now turn to the matters I must consider.
[14] When making this determination, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[1] stated:
"Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances."
[15] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2] (Stogiannidis) noted :
"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."
[16] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.
[17] The reasons for the delay advanced by the Applicant were as follows:
"The reason for the delay is that the applicant received legal advice that upon review of the respondent's evidence filed in the unfair dismissal claim and receiving the applicant's response to the respondent's evidence, his case would have more merit and prospects of success if it were a General Protections claim. The applicant accepted this advice and instructed his solicitor to make a General Protections claim. This was done without delay.
The above point is directly within the contemplation of the intention of the Act, as per the Explanatory Memorandum, at item 2711 (supra).
The applicant also submits that the delay is a technical one and not substantive because the original unfair dismissal application was filed in time and within 21 days.
In addition, we submit that the correspondence between the Commission and the Applicant after the Applicant's receipt of legal advice was actioned quickly and effectively. The time between the Applicant's filing of his second application, the notification from the Commission regarding the operation of the prohibitive multiple action clauses, and his withdrawal, was a matter of three days. We submit that this goes to the credibility and weight of the reason for the totality of the delay."
(a) The decision by the Applicant to commence a general protections claim, rather than proceed with his unfair dismissal claim that was within jurisdiction, is not a credible reason for the delay. The fact that the Applicant subsequently decided to pursue some other claim does not give rise to any exceptional circumstance;
(b) The Applicant's contention that his decision to pursue a general protections claim resulted from becoming aware of "crucial evidence" of which he was not aware when he filed his unfair dismissal application was not supported by the material before the Commission;
(c) The Applicant secured legal representation on 28 May 2020, and so from that time the Applicant's legal representative was in a position to weigh the "pros and cons" of proceeding with the unfair dismissal application, or discontinuing that application and making a general protections application. Nonetheless, the general protections application was not filed for 40 days after the Applicant secured such legal representation; and
(d) The Act makes plain that where an Applicant seeks to file a general protections application beyond the statutory time limit, there must be exceptional circumstances. Contrary to the Applicant's assertion, there is nothing in the Explanatory Memorandum to suggest that his decision to pursue an alternative remedy constitutes an exceptional circumstance.
[19] I do not accept that a purely preferential decision to pursue an alternative cause of action because it would have more merit and prospects of success if it were a general protections claim constitutes an acceptable reason for delay. In Brian Turner v Metropolitan Fire and Emergency Services Board[3], Deputy President Dean considered an extension of time application for an Applicant who made an unfair dismissal application within the statutory time limit, but subsequently discontinued and filed a general protections application outside the statutory time limit. While Mr Turner claimed that he had obtained advice which led him to mistakenly lodge an unfair dismissal claim, the Deputy President found that there was no reason given or evidence adduced to support the assertion that the unfair dismissal application was an incorrect or invalid application. The Deputy President found:
"I do not accept the Applicant's submission that he had obtained misinformed industrial advice which led him to mistakenly lodge an unfair dismissal application. There was no evidence of any misinformation provided by the Union. There was no reason given or evidence adduced to support the assertion that the unfair dismissal application was an incorrect or invalid application. The Applicant was a person protected from unfair dismissal and there is no explanation from the Applicant as to why his unfair dismissal application could not proceed. The Applicant took the option to discontinue the unfair dismissal application about two and a half months after it was lodged to file a general protections application. Such option does not amount to any representative error, at least on the Union's part.
I accept the Respondent's submissions that the delay is not a result of the wrong jurisdiction or incorrect application, but that the Applicant has acted on advice from his current lawyers to withdraw his unfair dismissal claim and commence a general protections claim instead.
Overall, the evidence does not support a finding that there is a credible reason for the whole period of the delay." (Emphasis added. Footnotes omitted)
[20] The Applicant has similarly elected to discontinue the UD Application and pursue the Application. That election was not made because the UD Application could not proceed, but because the Applicant saw "more merit and prospects of success" in the Application. That is not a credible explanation for the whole, or a part, of the period of the delay in this matter.
[21] I also do not accept that the filing of materials on 25 June 2020, identifying that Mr Delaney, a Field Service Supervisor whom the Applicant claimed had bullied him on 23 March 2020, and who was involved in the determination to dismiss the Applicant on 27 March 2020, presented a credible explanation for the whole, or a part, of the period of the delay in this matter. The Applicant was one of 37 employees who lost their positions by reason of redundancy. It is unremarkable to consider that the Applicant's Supervisor would be involved in the selection for redundancy.
[22] The alleged incident on 23 March 2020, was squarely in the Applicant's contemplation when he commenced the UD Application. In the Form F2, the Applicant identified the following regarding why the dismissal was unfair:
"3-Had an consultation with new supervisor (Owen Delaney) on the 23-3-2020 with a third party witness (Andrew Sot) which was unresolved. Spoke to national manger (Jacob Shehata) and was advised that i had to write a incident report and was assured that i would not lose my job.
4-There are approximately fifteen Road Technicians that are currently employed in Sydney Two or More that had been employed after my time of employment with No forklift experience and less Qualified and less trained then me on adaptalifts training programs which they are still currently Employed." (Original text retained)
[23] I find that there was no acceptable explanation for the Applicant's delay in filing the Application. The Applicant did not promptly pursue that claim, and only did so after deciding it was preferable to the UD Application. Accordingly, this factor weighs in the Respondent's favour.
(b) Any action taken by the person to dispute the dismissal
[24] The Applicant did take action to dispute his dismissal. It was not in dispute that the Applicant lodged an unfair dismissal application within the statutory time limit. This weighs in favour of a finding of exceptional circumstances.
(c) Prejudice to the employer (including prejudice caused by the delay)
[25] The Applicant submitted that the amount of prejudice to which the Respondent would hypothetically be subjected to by the granting of the application for the extension of time is negligible. The Applicant noted that the Respondent did not need to defend the UD Application, and no finding of merit was made by the Commission with regards to that application. Any potential prejudice suffered by the Respondent as a result of the grant of the extension of time would be minimal both in cost and material effect on the outcome of proceedings.
[26] I cannot accept the Applicant's submission as it disregards the time and cost that the Respondent has already suffered in defending the UD Application. Such time and cost are relevant considerations in relation to prejudice[4]
[27] I accept that the Respondent's submission that it will suffer some prejudice by the delay. It has already been put to the time and costs associated with defending the Applicant's unfair dismissal claim. This weighs against a finding of exceptional circumstances.
[28] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:
"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
[29] The Applicant submitted that his case has strong merit because Mr Delaney, who he made a complaint about on 23 March 2020, was involved in the decision to terminate his employment. In the hearing, the issue of merit was described as a "lay down misere".
[30] I do not accept the Applicant's characterisation as to merit, notwithstanding issues of reverse onus. The evidence before me was clear that Mr Delaney was not aware of any complaint made about him by the Applicant until 24 June 2020, approximately three months after the Applicant's termination.
[31] As these matters are contested, I unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.
(e) Fairness as between the person and other persons in a like position
"It would be manifestly unfair to not permit the applicant to test his claim in the Fair Work Commission or elsewhere. It would also send a disturbing message to other applicants who may be bullied at work that the Commission is more concerned with form over substance if this application were denied. There is a clear fairness objective of allowing people to make claims and alter them upon receiving legal advice that the explanatory memorandum countenances."
"It is important that the principles governing a grant of an extension of time are applied consistently .
As a matter of fairness between the Applicant and other people who file outside of the statutory time limit in this Commission, who are usually held to account to provide a credible explanation for any part of their delay, the grant of an extension of time should be refused.
[34] As Deputy President Gostencnik observed in Morphett v Pearcedale Egg Farm:[5]
"Turning to the question of fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission."
[35] I am not satisfied that the criteria of fairness as between the Applicant and other persons in a similar position weighs strongly in favour of either party, and I therefore find it to be a neutral consideration.
[36] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any weight were acceptable reason for delay, action taken to dispute the dismissal and prejudice to the employer. Acceptable reason for delay and prejudice to the employer weighed in the Respondent's favour. Only action taken to dispute the dismissal weighed in the Applicant's favour.
[37] I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
[1] [2014] FWC 479, at [30].
[4] See Turner [2016] FWC 8036 at [64]; and Nyawasha v E & S Trading Co. [2019] FWC 4078 at [24] and [25].
[5] [2015] FWC 8885, at [29].
Printed by authority of the Commonwealth Government Printer
Mr Ahmad Soubra
Adapt-A-Lift Group Pty Ltd [2020] FWC 5366