s.365 - Application to deal with contraventions involving dismissal

General protections application filed out of time - representative error - circumstances exceptional - extension of time granted.

• [1] This decision concerns an application by Mr Craig Lawlor (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute (Application) pursuant to s 365 of the Fair Work Act 2009 (Act) against his former employer, the University of New England (Respondent).

• [2] The Applicant seeks an extension of time to lodge his Application in the Commission.

• [3] I conducted a hearing, by telephone, on 9 October 2024 in relation to the Applicant's request for an extension of time.

• [4] The Applicant's dismissal from his employment with the Respondent took effect on 19 July 2024 when he received a letter (dated 17 July 2024) notifying him of his dismissal. The Application was filed in the Commission on 16 August 2024.

• [5] Section 366(1) of the Act states that an application under s 365 must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 9 August 2024. The Application was therefore filed seven days outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 366(2).

• [6] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [7] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [8] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

• [10] The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [11] The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable 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.[5]

• [12] The Applicant contends that the delay in filing his Application was due to representative error on the part of his solicitor, Mr Bruin Hutchings.

• [13] A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time.[6] In Clark v Ringwood Private Hospital,[7] a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

• Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

• 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.

• 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. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

• Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.

• [14] It is not necessary for an applicant to demonstrate that they were "blameless" for the delay in filing a general protections application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[8] However, as the Full Bench explained in Long v Keolis Downer,[9] "an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by".

• [15] The Applicant did not give evidence in support of his request for extension of time. Mr Hutchings gave relevant evidence to the following effect in relation to his error in lodging the Application seven days' late:

(a) Mr Hutchings did not act for the Applicant in relation to his earlier general protections application not involving a dismissal.

(b) On 19 July 2024, the Applicant was notified of his dismissal. The Applicant immediately notified Mr Hutchings.

(c) Early in the week commencing 22 July 2024, Mr Hutchings obtained instructions from the Applicant to prepare the Application and lodge it with the Commission. Mr Hutchings then diarised 16 August 2024 as the date by which the Application had to be lodged in the Commission. Mr Hutchings does not recall specifically why he diarised 16 August 2024 as the relevant date. He considers the most likely scenario to be that he miscounted the weeks on the wrong Friday or he erroneously assumed a 28 day deadline.

(d) Mr Hutchings met with the Applicant late in the week commencing 22 July 2024 to obtain information in relation to the preparation of the Application. Mr Hutchings also spoke to the Applicant by telephone on a number of occasions during that week, as well as in the first week of August 2024, to obtain information from him. Mr Hutchings cannot recall whether he informed the Applicant of the 21 day period within which the Application had to be lodged in the Commission.

(e) The Applicant promptly responded to Mr Hutchings' requests for relevant documents and information in relation to his preparation of the Application.

(f) When Mr Hutchings was finalising the Application on 16 August 2024, the form asked whether it was being lodged within 21 days. At this time, Mr Hutchings realised that the form was being lodged 28 days after the Applicant's dismissal, which was seven days' late.

(g) Mr Hutchings made the Applicant aware of his error as soon as he became aware of it on the day of, and immediately prior to, the filing of the Application in the Commission on 16 August 2024.

(h) The Applicant was in no way responsible for Mr Hutchings' error.

• [16] I accept the truthfulness and accuracy of the evidence given by Mr Hutchings, as summarised in the previous paragraph. Mr Hutchings readily accepted that he made a significant error in failing to lodge the Application on time, and was genuinely contrite for his mistake.

• [17] In my view, it was a clear representative error on the part of Mr Hutchings not to file the Application by midnight on 9 August 2024. Early in the week of 22 July 2024, the Applicant gave instructions to Mr Hutchings to prepare his Application and lodge it in the Commission. Mr Hutchings then had a number of communications with the Applicant to obtain the information he required in order to complete the Application. I accept that the Applicant provided timely responses to the requests by Mr Hutchings for relevant documents and information.

• [18] In all the circumstances, I am satisfied that the delay in filing the Application is to be attributed to the error made by Mr Hutchings. I am satisfied on the evidence before the Commission that no part of the delay was occasioned by the conduct of the Applicant; I consider that he is blameless for the delay.

• [19] For the reasons stated, I consider that the Applicant has an acceptable explanation for the seven day delay in lodging his Application in the Commission. This weighs in favour of a conclusion that there are exceptional circumstances.

• [20] There is no suggestion in the material before the Commission that the Applicant took any step to dispute his dismissal other than filing his Application in the Commission. This is a neutral consideration.

• [21] The Respondent contends that prejudice it has suffered by the delay includes the payment of 26 weeks' pay in lieu of notice which may need to be repaid to the Respondent or taken into account should the Application succeed. I do not accept this argument. The Respondent was required to pay this amount to the Applicant on his dismissal pursuant to a term in the applicable enterprise agreement. The seven day delay in filing the Application in the Commission did not have any impact on the obligation owed by the Respondent under the applicable enterprise agreement to make this payment in lieu of notice to the Applicant.

• [22] I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not, in my view, a factor that would point in favour of the granting of an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [23] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory.

• [24] The Applicant has alleged many contraventions of the Act in his Application, including that the Respondent organised to have him assessed for medical retirement purposes, refused to reschedule his appointment with an independent medical assessor on 3 July 2024, and subsequently had him medically retired (dismissed) because he exercised workplace rights to take sick leave, access workers' compensation and have his sick leave recredited, lodge a grievance on 10 May 2024, seek reclassification from HE05 to HE06, and express his point of view that the request of his supervisor, Mr Daniel Ebert, that the training of other technical staff was unreasonable. The Applicant also alleges that the Respondent contravened ss 343, 344, 345 and 352 of the Act.

• [25] The Respondent denies the allegations made by the Applicant and contends that the Applicant's medical retirement was made solely on the grounds of clause 50.10 of the applicable enterprise agreement, as is clear on the face of the termination letter dated 19 July 2024.

• [26] The facts, circumstances and reasons for the Respondent's decisions concerning the Applicant, including his dismissal on 19 July 2024, would need to be carefully considered at a final hearing after the cross examination of relevant witnesses. I do not consider that it is possible at this early stage of the proceedings to come to an informed view of the merits of the Application. Having regard to all the circumstances, I consider the merits of the Application to be a neutral consideration.

Fairness as between the person and other persons in a similar position

• [27] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

• [28] Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.

• [29] Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all the matters raised by the parties, I am satisfied that there are exceptional circumstances in this case and it is appropriate to exercise my discretion to extend time for the Application to be lodged in the Commission. The circumstances of this case are out of the ordinary course, unusual, and special because an applicant can reasonably expect that if they engage a solicitor to act on their behalf shortly after their dismissal, their solicitor will be aware of, and comply with, the 21 day time period to lodge a general protections application in the Commission. Mr Hutchings failed to meet this standard and, as a result, did not lodge the Application in the Commission within 21 days of the dismissal. This provided the Applicant with an acceptable reason for the delay. The remaining factors under s 366(2) are neutral or of little weight. In my view, it is in the interests of justice that the Applicant, whose conduct did not contribute to the delay in lodging his Application, be permitted to pursue his general protections case.

• [30] For the reasons given, I will extend the time for the Applicant to lodge his Application to 16 August 2024. An order will be issued to that effect [PR780111].

Mr B Saunders, solicitor, appeared for the Applicant.

Ms C Pugsley, workplace relations consultant, appeared for the Respondent.

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40].

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[6] See, for example, C. Davidson, Print Q0784, 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759; Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802; Long v Keolis Downer [2018] FWCFB 4109.

[7] (1997) 74 IR 413 at 418-9.

[8] Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759 at [17]; Long v Keolis Downer [2018] FWCFB 4109.

[9] [2018] FWCFB 4109 at [60].

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