s.365 - Application to deal with contraventions involving dismissal

All Skills Resourcing Pty Ltd, Diverse Group (Australia) Pty Ltd, Diverse Holdings (Australia) Pty Ltd

Application alleging contravention of General Protections provisions - extension of time - whether exceptional circumstances exist - reason for delay - representative error - whether solicitor wholly responsible for delay - application dismissed.

• [1] This decision concerns the issue of whether there are 'exceptional circumstances' such that the applicant in this matter, Mr. Beau Scholtz (Applicant), should be permitted to proceed with a late application under Part 3-1, General Protections, of the Fair Work Act 2009 (Cth) (Act). For the reasons below, I have concluded that there are no exceptional circumstances as contemplated by the relevant provisions of the Act. It follows that the application must be dismissed.

• [2] On 24 February 2025 the Applicant filed an application under s.365 of the Act against his previous employer, All Skills Resourcing Pty Ltd (First Respondent) alleging that his employment had been terminated by the First Respondent in breach of Part 3-1 of the Act. Diverse Group (Australia) Pty Ltd and Diverse Holdings (Australia) Pty Ltd are related bodies corporate of the First Respondent and were named as additional respondents to the proceeding.

• [3] Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2). It was not in issue that the Applicant's dismissal took effect on 17 January 2025 and that the application therefore had to be filed on or before 7 February 2025 to be within the statutory time period. On this basis it was accepted that the application was out of time by a period of 17 days.

• [4] The First Respondent objected to the application on the basis that it was not made within the 21-day time period and maintained that there were no exceptional circumstances to justify an extension of time. The Applicant asserted that exceptional circumstances existed and asked the Commission to extend time.

• [5] Section 366(2) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:

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

(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 like position.

• [6] I deal with each of the matters referred to in s.366(2) below.

Section 366(2)(a) - reason for the delay

• [7] The Applicant argued that his application had been delayed because he had sought from his previous employer, through his lawyers on 11 and 17 February 2025, additional information as to the circumstances of his dismissal but that this information had not been forthcoming. The Applicant said the inadequacy of the explanation for his dismissal at the time it occurred made it difficult for him to determine whether he had a claim which might go forward. The letter of termination provided to the Applicant by the First Respondent said the Applicant was "a poor cultural fit for the team" and cited instances of "poor attitude" and the Applicant being "disruptive to team culture."

• [8] The Applicant relied on his own evidence and the evidence of his solicitor, Ms. Vinden. This evidence was to the effect that he had contacted his solicitor by no later than 1 February 2025 and that because the letter of termination lacked specificity as to the reasons for termination, Ms. Vinden wrote to the First Respondent seeking further details. Ms. Vinden also referred to the stress caused by the Applicant's dismissal as a contributory factor to the delay. Ms. Vinden's evidence was that she was aware of the 21-day limitation period in these matters before she had received any contact or instructions from the Applicant.

• [9] The evidence of the Applicant was that he was unaware of the 21-day time limit until he was advised of it by his lawyers in early February 2025 but "needed time to provide the instructions requested particularly given the vague and confusing nature of (his) dismissal."

• [10] The First Respondent said that the Applicant had failed to adequately explain the delay given that his own evidence was that he had contacted the Fair Work Commission shortly after his dismissal and had been in regular contact with his lawyers about his circumstances. The First Respondent said the filing of the application was a straightforward process and could have been done without the assistance of a lawyer. The First Respondent pointed out the Applicant's own evidence indicated that he had engaged his lawyers by no later than 1 February and that the lawyers had failed to take any steps to make contact with the First Respondent until after the 21-day time period had elapsed.
• [11] The delay is the period between the end of the 21-day time period and the date the application is filed. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.[1] This is because the reason for delay is a factor forming part of the overall assessment required by s.366(2).[2] A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. Conversely, a failure to provide a credible explanation for any part of the delay would tend to weigh against such a finding.[3]

• [12] In this matter the delay is largely attributable to representative error on the part of the Applicant's lawyers. Vinden Lawyers had instructions to act for the Applicant by 1 February 2025 at the latest. It was possible for them to take any necessary steps to engage with the First Respondent on an urgent basis and to prepare and file an application within the 21-day period. They failed to do so. Instead, they wrote to the First Respondent on 11 February 2025, after the limitation period had expired. There was no satisfactory explanation as to why they failed to act before 11 February. The lack of an acceptable explanation for a solicitor's own inaction can support rather than negate the existence of exceptional circumstances.[4] Ms. Vinden was aware that the limitation period applied. She was in regular contact with the Applicant and able to obtain instructions. The Applicant was a party to the conversation regarding the termination of his employment and was able to provide his version of the reasons for the termination that had been provided to him. Instead of filing an application, Ms Vinden wrote to the First Respondent inviting them to provide details of the termination discussion and foreshadowing a general protections application. The First Respondent replied on 13 February 2025 saying that any claim would be vigorously defended. Ms. Vinden took no further action until 17 February and then finally lodged the application on 24 February.

• [13] Whilst the failures of the Applicant's solicitor should not be visited on him, the involvement of the Applicant must also be considered and regard had to whether there is any blameworthiness for the delay which is attributable to the Applicant's own acts or omissions.[5]

• [14] In Jordan and MacLeod v Multiplex Australasia Pty Ltd[6] the Full Bench said:

[33].... It has been said that "the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application". However, the conduct of the applicant will be relevant only to the extent that it contributed to or explains the delay. That is the relevance of the observation of the Full Bench in Clark v Ringwood Private Hospital that "a distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant".

[34] The conduct of an applicant might have contributed to a delay in the filing of an unfair dismissal application notwithstanding that the delay was also contributed to by representative error. That might be the case if, for example, the applicant only consults the representative shortly before the expiry of the time limit, the applicant entrusts his or her application to a representative who is obviously unqualified or unwilling or unable to assist, the applicant fails to cooperate with the representative by providing the information or assistance necessary to prepare the application or the applicant leaves the application in the hands of his or her representative for an extended period without receiving any communication from the representative and without taking steps to ascertain the status of the application. (footnotes omitted)

• [15] Applicant in this case relied on his solicitor to take diligent steps to protect and progress his interests. He engaged his solicitor in sufficient time to assess, prepare and file an application. There was nothing to suggest that he did not provide instructions when they were sought. However, there was also nothing to show that the Applicant, knowing there was a deadline, had given clear instructions to the solicitor to file an application before that deadline expired, which the solicitor then ignored or failed to act on in time.

• [16] The Applicant was aware from at least early February and likely as early as 1 February 2025, that a 21-day time period applied to the lodgement of an application. Although the Applicant could not be expected to know whether his solicitor's approach of seeking further information rather than lodging an application was a conventional and legally sound route, he apparently acquiesced in that strategy. A reasonably prudent applicant with knowledge of the deadline would, in my view, have taken at least some steps to follow up on his application with his solicitor or seek some assurance from his solicitor that his position would not be prejudiced by the approach that was being adopted. This is particularly so given the solicitor did not make any contact with the Respondent (or lodge an application) until after the 21-day time period had expired. There was no evidence that this was the case.

• [17] The responsibility for the delay rests overwhelmingly with the Applicant's solicitor who chose to make what were in the end only limited further inquiries of the First Respondent and wait for a response, rather than meet the statutory deadline of which she was clearly aware. However, for the reasons referred to above, I do not think that the Applicant can be entirely excused from the responsibility for the delay.

• [18] I also do not accept that the evidence shows that the level of distress experienced by the Applicant as a result of the dismissal went beyond that which would ordinarily be associated with a summary dismissal and that this consideration therefore provides a further partial explanation for the delay.

Sub sections 366(2)(b) - Any action taken by the person to dispute the dismissal

• [19] It was conceded by the Applicant that he did not take any steps to dispute the dismissal until after the limitation period had expired. The Applicant also said he spoke with Mr. Hill from the First Respondent shortly after his termination but did not take issue with the termination in that discussion. The first time the First Respondent became aware that the dismissal was disputed was when they received Ms. Vinden's first letter on 11 February 2025. Nonetheless they were clearly on notice from 11 February that proceedings could follow, albeit proceedings which by that time, would have been initiated out of time. The Applicant's solicitor's further letter of 17 February reiterated this position. These latter matters are matters which weigh in the Applicant's favour.

Sub sections 366(2)(c) - Prejudice to the employer

• [20] There was no evidence about prejudice to the First Respondent, including prejudice caused by the delay. I am unable to conclude that such prejudice exists here. This is a neutral consideration in the assessment.

Sub sections 366(2)(e) - Fairness as between the person and other persons in a like position

• [21] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. This is a neutral factor here.

Section 366(2)(d) - Merits of the application

• [22] As to the merits of the application, the Applicant has asserted a contravention of the general protections provisions on the basis that he had raised legitimate health and safety concerns which the Respondent was unwilling to correct and which contributed, at least in part, to the decision to dismiss him. The evidence from the Applicant as to when such concerns were raised and with whom, and the details of the alleged complaints was entirely unclear.

• [23] The First Respondent contended that the Applicant was terminated for reasons related to the Applicant discussing details of the First Respondent's operations with the First Respondent's client and with other operators on the site, rather than through appropriate reporting channels. The First Respondent said that these discussions were in contravention of the Applicant's confidentiality obligations under his contract of employment. There was unchallenged evidence from a superintendent for the First Respondent, Mr. Myles, that the Applicant had been previously verbally counselled about this issue.[7] In his statement the Applicant asserted that nobody had at any stage or in any way sought to limit what he said to the First Respondent's client. However, the Applicant's solicitor's letter of 11 February asserted on behalf of the Applicant that the Applicant had been told to "shut (his) mouth and don't say anything to (the client)".

• [24] Mr. Batchelor, who gave evidence for the First Respondent, said that the Applicant said during the meeting on 17 January 2025 that he had witnessed unsafe practices on the site and was going to be reporting those incidents to the safety regulator. Mr. Batchelor also gave evidence that the decision to terminate the Applicant's employment had been made by a management group prior to the meeting but was made subject to the Applicant being able to satisfy them at the meeting that there were good reasons why his employment should not be terminated. Even if no relevant complaint had been made by the Applicant prior to the 17 January meeting and the Applicant had indicated at that meeting for the first time that he was proposing to exercise a workplace right,[8] the First Respondent referred to and relied on the history of the issues between themselves and the Applicant as the substantive and lawful reason for the termination of the Applicant's employment.

• [25] The First Respondent also said that the Applicant had, incorrectly, told some of the operators that one of the First Respondent's supervisors and another operator were to have their employment terminated in the near future and that this was a further factor in the decision to terminate the Applicant's employment.

• [26] It is not generally appropriate for the Commission to resolve all contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).[9] The determination of these issues would require a full hearing on the evidence should the matter proceed. On the material available however, I do not think that the prospects of the Applicant establishing that the termination was adverse action related to the exercise or purported exercise of workplace rights referred to in Part 3-1 of the Act are sufficiently strong to weigh in favour an overall conclusion that exceptional circumstances exist.

• [27] In circumstances such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [28] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may 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.[10]

• [29] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time.

By video using Microsoft Teams at 12:00pm AEST on Tuesday, 29 April 2025.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[4] Qantas Ground Services Pty Ltd t/a QGS v. Rogers [2019] FWCFB 2759 at [16].

[5] Clark v Ringwood Private Hospital Print P5279 (AIRCFB, Ross VP, Drake DP, Deegan C, 22 September 1997), (1997) 74 IR 413, at pp. 418‒420.

[6] [2024] FWCFB 440.

[7] Exhibit R2 at paragraph 9 and see also paragraph 4.

[8] Section 340(1)(a)(iii)

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

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