s.365 - Application to deal with contraventions involving dismissal

Auto & General Holdings Pty Limited, Ram Kangatharan

Application to deal with contraventions involving dismissal - jurisdictional objection -whether to extend time for making of application - exceptional circumstances not found - application dismissed

• [1] On 11 February 2025, Mr James Collier made a general protections application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (the Act). Mr Collier alleges that he was dismissed by Auto & General Holdings Pty Ltd (A&G/First Respondent) and Mr Ram Kangatharan, Group Managing Director and Chief Executive Officer, Asia Pacific, (Mr Kangatharan/Second Respondent) on 3 February 2025, or alternatively on 31 January 2025 in contravention of his workplace rights.

• [2] A&G opposed the application, by way of raising a jurisdictional objection, that the application was lodged out of time.

• [3] For the application to proceed, Mr Collier requires the Commission to grant a further period within which to bring his application.

• [4] The question of whether to grant additional time was dealt with at a hearing held via Microsoft Teams on 13 May 2025. At the hearing, Mr Collier was represented by Mr Paul Chapman of Toomey Pegg Lawyers and A&G were represented by Mr Damien Payard of Counsel.

• [5] Both parties filed written submissions and witness statements. Mr Collier gave evidence in support of his application. Mr Kangatharan, Mr Adam Crane, Chief Executive Officer - Insurance Australia, and Ms Janita Valentine, Group Chief People Office, gave evidence on behalf of A&G.

• [6] For reasons outlined below, I have decided not to grant Mr Collier an extension of time.

• [7] Mr Collier commenced employment with A&G in the role of Group Chief Operating Officer (GCOO) on 29 July 2024. Mr Collier's employment was subject to a 6 month probationary period.

• [8] It was Mr Kangatharan's evidence that in or around September 2024, he had started to "call out" concerns he was having with Mr Collier's performance.[1] Email exchanges between Mr Collier and Mr Kangatharan which were attached to Mr Collier's Statement confirm that he and Mr Kangatharan had met to discuss Mr Collier's performance in September 2024.[2] A further email exchange between 25 and 28 October 2024 titled "RK/JC 1:1 Outstanding questions" clearly show that a range of issues relating to Mr Collier's performance were discussed with Mr Kangatharan making the concluding comment "overall, I think you are struggling to fit into the GCOO role."[3]

• [9] Mr Collier however describes both of these email exchanges as discussions initiated by him to discuss his short term incentive remuneration scheme and expected bonus remuneration.[4]

• [10] On 4 December 2024, Ms Caron Blondeau, Mr Kangatharan's executive assistant, sent Mr Collier a meeting request titled "Probation Review and 1:1". The description of the meeting provided:[5]

As your probation lands when Ram is on leave so we are bringing your review early to ensure this is completed."

• [11] The meeting occurred 4 December 2024 as scheduled. Mr Kangatharan recalls that he discussed his concerns with Mr Collier's performance and that the meeting ended with him asking Mr Collier to further reflect on the discussion and send him some further notes. A follow-up meeting was scheduled for 11 December 2024. Mr Kangatharan made handwritten notes in a notebook during the meeting and made a contemporaneous record of the meeting shortly after it concluded. Copies of both documents were tendered along with his statement.

• [12] Mr Collier and Mr Kangatharan have differing recollections of precisely what transpired in the meeting however it is not necessary for me to draw any conclusion in this regard, other than to note that the meeting occurred, and that a discussion was had regarding Mr Collier's performance, against the backdrop of his probationary period coming to an end.

• [13] Ms Blondeau scheduled the further meeting for 11 December 2024.[6] In the intervening period, Mr Collier sent Mr Kangatharan two further emails regarding his performance and the issues raised in the 4 December 2024 meeting. It is Mr Kangatharan's evidence that after reviewing these emails, dated 7 and 9 December 2024, he formed the view that Mr Collier was not suitable for the role of GCOO, and that his employment should be terminated.[7] Mr Kangatharan then sought Ms Valantine's assistance in preparing Mr Collier's termination letter.[8] It is Ms Valentine's evidence that Mr Kangatharan had advised her that he intended to dismiss Mr Collier on 11 December 2024.[9] Ms Valentine then prepared a letter of termination and calculated Mr Collier's final pay.[10] At Mr Kangatharan's request, Ms Valantine included an "ex-gratia payment".[11] This payment was to be equivalent to the salary that Mr Collier would have received had he worked until the end of January 2025.[12]

• [14] At 1:59am on 11 December 2024, Mr Kangatharan sent Mr Collier an email response in which he explained his concerns that the responses that Mr Collier had sent since the 4 December 2024 meeting were "way off base" and that they would further discuss this at the meeting later that morning.[13]

• [15] Mr Kangatharan and Mr Collier met at 8:30am on 11 December 2024. The parties disagree about several elements of the meeting. Their respective evidence is as follows.

• [16] Mr Kangatharan states that at the commencement of the meeting he advised Mr Collier that he was terminating his employment during his probationary period and that his employment would end today.[14] He states that he handed Mr Collier a copy of the termination letter the Ms Valentine had prepared, which Mr Collier opened and read.[15] The letter informed Mr Collier that:[16]

(a) his employment was being terminated during his probation period;

(b) his employment contract was concluding on 11 December 2024;

(c) he was being paid an amount equivalent to his full-time salary to 31 January 2025, which included his notice period....;

• [17] Mr Kangatharan recalls that after Mr Collier read the letter, he raised with Mr Kangatharan the possibility of moving into a strategy role that was available in Mr Crane's team. Mr Collier expressed his view that this role was a better fit for him. Mr Kangatharan recalls that he said words to the effect that "this lead role is much more junior than the GCOO role and I don't think it is a suitable level or fit for you".[17] Mr Collier says, he replied with words to the effect of "I have never been hung up on titles".[18]

• [18] Mr Kangatharan states that he concluded the meeting with words to the effect of "I am happy for you to talk to Adam or Janita if Adam is looking for your help. If you have any trouble getting hold of someone during the holidays, drop me a line and I will get things moving".[19] Mr Kangatharan insists that it was Mr Collier who raised and pressed the possibility of him moving into the strategy role.[20]

• [19] Following the meeting, Mr Kangatharan says he spoke with Ms Valantine to confirm Mr Collier had been terminated.[21] He also had a brief discussion with Mr Crane where he mentioned that Mr Collier was finishing up in which he flagged that he may reach out to him regarding the strategy role.[22]

• [20] Whilst acknowledging the purpose of the meeting was to conclude his probationary review discussions before Mr Kangatharan commenced his long service leave, it is Mr Collier's recollection that the meeting focussed more on discussions regarding the organisational chart that had been contained in the email dated 9 December 2024 titled "GCOO Operating Model", a copy of which he took into the meeting.[23]

• [21] It is Mr Collier's evidence that during discussions, Mr Kangatharan suggested to him that he would be a good fit for the "Strategy Lead" role. He recalls that Mr Kangatharan stated words to the effect of "I see you moving into this role, is that a role you would be interested in?". [24] Mr Collier submits that he and Mr Kangatharan proceeded to discuss the role at length with Mr Kangatharan stating words to the effect of:[25]

"This is a lessor role, on a lower remuneration and would be at an Associate Director level, and report to Adam Crane. In time you could work your way back into the business."

• [22] Mr Collier says that he took this to mean that if he took this role, he would have an opportunity to progress to a more senior role in due course. Mr Collier says he then said words to the effect of:[26]

"I have no issue reporting to Adam. I also need time and bandwidth to learn the business. I like this company and think it has a bright future. I'm here for the long-term".

He says that Mr Kangatharan then said words to the effect of:[27]

"Well here is the formal notice of termination of the Group Chief Operating Officer role. You will be paid up to the end of January at the GCOO remuneration. I'll leave Adam to work out the details of the new role then. If they aren't finalised by end of January, I'll extend your remuneration to end of February, and further from there if need be, until everything is finalised".

• [23] Mr Collier asserts that it was at this point that Mr Kangatharan handed him the envelope containing the letter of termination which he says he did not open until after the meeting had concluded.[28] Mr Collier recalls that the meeting concluded with him saying words to the effect of:[29]

"Ok, thanks, I'll work through it with Adam. If I don't see you before you leave, have a good long service leave".

• [24] Mr Collier believes that at the conclusion of the meeting he had been offered and accepted the strategy role.[30] A&G dispute this suggestion and maintain that no such offer was made or accepted.

• [25] It is uncontested that following the meeting, Mr Kangatharan spoke to Ms Valentine to confirm that Mr Collier's employment had been terminated.[31] He also asked that she ensure that all of Mr Collier's company property was returned before he left the office.[32] Again, the parties disagree on events that followed.

• [26] Mr Kangatharan recalls that he did have a brief discussion with Mr Crane, in which he mentioned that Mr Collier was finishing up, and that he had flagged an interest in speaking with him about the strategy role.[33] Mr Crane recalls this discussion and further states that after talking to Mr Kangatharan he walked into Mr Collier's office "to say goodbye".[34] It is his recollection that he said words to the following effect:[35]

• "I understand you are finishing up today";
• "I have been asked to consider whether there could be a future role for you in Strategy"; and
• "I will have a look at what I want to do in the Strategy space and I will reach out to you if there is an opportunity".

• [27] It is Mr Collier's evidence that following the meeting, he returned to his office and opened the envelope, noting that it stated that his employment and his contract were terminated. Around an hour later, Mr Collier recalls a brief discussion with Mr Crane. Mr Collier recalls the discussion as follows:[36]

Mr Crane "Ram has just told me the news. I don't know what to say, l'm surprised."

Mr Collier "Yes, caught me off guard, but what can you do?"

Mr Crane "Well don't worry, l'm working over the Christmas New Year slowdown period, so I've got time then and I'll pull together the Head of Strategy detailed role description and the direct reports. There are just a few things I need to think through on restructuring."

Mr Collier "Thanks Adam. I'm still keen to work here. I know I can add a lot of value."

Mr Crane "Well if there is anything you want to talk to me about over Christmas just give me a call, you have my number."

• [28] Before leaving the building Mr Collier returned his company laptop, phone, access card and credit card. Later that afternoon, his access to all of A&G's IT platforms was removed. Mr Collier's final pay, which included the ex-gratia payment noted in [13] and payment of all accrued but untaken statutory leave entitlements was processed on 24 December 2024.[37]

• [29] Mr Collier states that as a result of his discussion with Mr Kangatharan and Mr Crane, he "understood" that essentially, his role was just changing, and that his employment was continuing. He says it was his understanding that he would continue to be paid his GCOO salary until the "details of the new role were worked out".[38]

• [30] On 16 January 2025, 36 days after receiving the notice of termination, Mr Collier sent an email to Mr Kangatharan which read:[39]

I hope your long service is going well. I expect you may be deep in India's Golden Triangle by now, and either chasing tigers or marvelling at the Taj Mahal.

I'm sorry to bother you, but we said we would stay in touch. In our last meeting we agreed to go forward with the narrower Head of Strategy role, but you said if we couldn't get the details in place in Jan that I'm paid up to, you would extend my role to end of Feb while we work it out.

I haven't heard anything either way. As I stated I have a lot to offer, and am very keen to work something out. Can you confirm my existing role and rem will be extended to end of Feb in the interim.

• [31] As Mr Kangatharan was on long service leave at this time, Ms Blondeau replied, indicating that Mr Collier's email would be forwarded to Ms Valentine, for response once she returned from leave on 20 January 2024.[40] Ms Valentine's 20 January 2024 response read as follows:[41]

Per Caron's response, she has forwarded me your emails to Ram to respond to in his absence.

Unfortunately there appears to be a difference in understanding. The handover notes and briefing I received from Ram was that you may potentially be suitable for a narrower role (strategy) however there was no commitment or agreement to "go forward with the narrower Head of Strategy role". Since your recent email, I have reconfirmed these details.

The option for a narrower role was considered by both Adam Crane and myself in the context of a range of resourcing decisions and placements that were being made, however we decided not to pursue this option. The information I was supplied was that the decision not to offer a role to you did not lead to any additional remuneration being owed or paid to you.

As you are aware, you were still in the probation period per your employment contract on your termination date. As a result A&G was only required to pay you 1 weeks (sic) notice. However in recognition of the time of year an additional payment was made to compensate you until 31 January 2025 - which equates to over 6 weeks additional payment.

I wish you all the best for your future endeavors (sic).

• [32] On 31 January 2025, some 11 days later, Mr Collier provided the following response to Ms Valentine:[42]

Sorry slow getting back, first week of school, and negotiated & sold my house on the GC.

Not sure about the difference in understanding as Ram was crystal clear with me about asking Adam C to pull together the Strategy Role, and Adam C came in my office same day and said he would start working on it, and had time over Xmas (as wasn't taking time off). ln any event it is what it is if Ram doesn't want to proceed, just not sure why, as he was enthusiastic about me taking on the Strategy Role. You can tell me one day over a glass of wine.

As I now have to think about a job, can you confirm that the non-compete/restraints in my contract don't apply. I will, of course, comply with my obligations regarding confidential information. I assume this is reasonable given A&G is pulling the pin on me, rather than the other way around.

• [33] On 3 February 2025, Mr Kangatharan, who was still on leave, sent an email to Mr Collier which read:[43]

Happy new year. I hope you had some quiet time with the family. l'm just getting to reliable wifi access now!

I've caught up with the conversations while I've been away on leave since 15 December.

James there needs to be better clarity in these conversations:

1) I terminated the GCOO role directly with you under probation and paid out to end of January ex-gratia.

2. When you mentioned at our exit meeting how well some of your strategy engagement has been going with Adam C I said if he's Looking for help due to Cath's exit then I'm happy to support that engagement and if more time is needed due to the holidays then happy to extend the pay to bridge you into the new rote. I left the decision with Adam when I left the office 13 December.

3. My understanding is that the decision Adam made is to not engage you in the strategy rote. This has been communicated to you by Janita.

4. Our arrangements have concluded and only the post employment obligations remain afoot. I'm happy to consider any specific proposals you may have on any particular opportunity on a without prejudice basis.

I hope that is clear and feel free to follow up with Adam or Janita. I'm back in Brisbane w/c 17 Feb and would be happy to catch up.

• [34] On 4 February 2025 Mr Collier responded to Mr Kangatharan expressing his disappointment that A&G had decided there was no role for him in the company moving forward.[44] Mr Collier went on to raise issues relating to the Non-Compete/Restraint provisions of his contract, and sought an additional ex-gratia payment of $500,000 with respect to alleged "foregone remuneration".[45]

• [35] On 11 February 2025, Mr Kangatharan responds.[46] His response clarifies that Mr Collier willingly signed a contract of employment knowing that it contained a six-month probationary period, which following several discussions regarding performance, Mr Kangatharan had chosen to exercise.

• [36] Regarding their final conversation on 11 December 2024, Mr Kangatharan again clarifies that it "did not include any promise or commitment to ongoing employment".[47] Mr Kangatharan states "as I have clarified, you expressed an interest in the strategy space, and I was willing for the Insurance Australia CEO (Mr Crane) to consider you as an option. That consideration was made, and decision was made not to re-engage you for this work". [48]

• [37] Mr Collier filed his General Protections application that same day.

• [38] Section 366(1) of the Act states that a general protections application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to section 366(2). The parties disagree as to the effective date of dismissal. This question must be determined to establish whether or not Mr Collier's application was filed within the statutory time frame.

• [39] A&G contend Mr Collier's date of dismissal was 11 December 2024 therefore the 21st day would have been 1 January 2025. Accounting for that day being a public holiday, the next business day was 2 January 2025. A&G argue that as Mr Collier's application was not lodged until 11 February 2025, it was 42 days out of time.

• [40] Mr Collier's F8 application however provides the date of dismissal as 3 February 2025. If this is found to be the date of dismissal, he had until 24 February 2025 to lodge his application and as such, they say, his application would have been made within the allowable timeframe.

• [41] In short summary, Mr Collier's arguments are formed around the concept that whilst his employment in the GCOO role came to an end on 11 February 2024, he was offered and accepted the strategy role that same day. It was only when he was advised on 3 February 2025 that he was not going to be employed in the strategy role, that he says his employment came to an end.

• [42] To that end, Mr Collier initially submitted the existence of two contracts, the first contract relating to his employment when he commenced with A&G as GCOO, on or about 29 July 2024 pursuant to a written contract of employment dated 23 July 2024 (First Contract). Whilst the second contract is submitted to be a new contract entered into to substitute the First Contract by way of an agreement between Mr Collier and Mr Kangatharan during the 11 December 2024 meeting. During closing submissions, Mr Chapman notes the there are some difficulties with this proposition, but presses nonetheless that an agreement was reached between the two during the meeting, at least to the extent that Mr Kangatharan would ask Mr Crane to consider Mr Collier for another role.

• [43] Notwithstanding the above, Mr Collier submits that the 11 December 2024 letter provided to him during the meeting was not an effective notice of termination because A&G, through Mr Kangatharan, made a binding agreement with him before he received the 11 December 2024 letter, to employ him in a substantially different role, thereby terminating the First Contract and substituting it with a new employment contract.

• [44] Mr Collier subsequently submits a contractual notice of termination is only effective when it is received by the recipient and can be withdrawn unilaterally by the giver before it is received or by agreement with the recipient after it is received. The 11 December 2024 letter was signed and dated by Mr Kangatharan and was "hand delivered" to Mr Collier in a sealed envelope. As noted above, it is Mr Collier's evidence that he did not open the envelope or read the letter during his meeting with the Mr Kangatharan on 11 December 2024. Instead, Mr Collier states he first read the 11 December 2024 letter between his meetings with Mr Kangatharan and Mr Crane.

• [45] Regardless, Mr Collier argues that it is not sufficient for A&G to establish the terms of the 11 December letter 2024, properly construed, conveyed A&G's intention to terminate his employment. Further that the letter is to be construed according to the way in which it would be understood by a reasonable person in the position of Mr Collier who had knowledge of the background of the dealings between the parties.

• [46] Mr Collier further suggests that by paying him an ex-gratia payment to the end of January 2025, despite the fact A&G were only required to pay Mr Collier one weeks' salary in lieu of notice of termination is evidence of consideration for the new contract.

• [47] Mr Collier further submits that to the extent that the 11 December 2024 letter would be understood by a reasonable person to have conveyed A&G's intention to terminate his employment, the notice was effectively withdrawn by way of Mr Kangatharan offering an alternative role. Contrary to the date of dismissal provided in his initial application (3 February 2024), Mr Collier's later submissions propose two alternatives as to the date that he understood the role was not going ahead and that he had therefore been dismissed - either 3 February 2025, when he received Mr Kangatharan's email of that same date, or alternatively, 31 January, when he responded to Ms Valentine's email of 20 January 2025.

• [48] During closing submissions however, Mr Chapman appears to accept, at least with respect to his second alternate date, that such realisation would have come upon receiving Ms Valentine's email dated 20 January 2025, which he contends may not have been read until 21 January 2025.

• [49] A&G submit that by Mr Collier's own admission, his contract of employment with A&G was terminated on 11 December 2024.[49] A finding that Mr Collier's employment was terminated on 3 February 2025, would therefore require satisfaction that either the contract of employment survived the ending of the GCOO role, or that if it did not, a second contract of employment was reached that same day, only to be terminated on 3 February 2025.

• [50] A&G argue there is not support for either of these propositions. Firstly, they do not accept that it was only Mr Collier's GCOO role that ended on 11 December 2024. Citing Alouani-Roby v National Rugby League Ltd,[50] they argue that the distinction between the employment contract and the employment relationship is an artificial one, as there can be no expectation of an ongoing employment relationship without an employment contract.

• [51] Notwithstanding this, they say that Mr Collier, by his own admission,[51] accepts that A&G terminated the first contract on 11 December 2024. Therefore, to prove that he was dismissed at a later date, he must prove that the parties entered into another contract of employment that day.

• [52] Again, this is not a proposition they support in the absence of any proof that a binding agreement was in fact reached to commence a second contract of employment. Whilst A&G accept that Mr Kangatharan and Mr Collier discussed the strategy role, they maintain that no commitment was made regarding a new role for Mr Collier.

• [53] A&G submit that there could not have been a second contract, drawing my attention to the five conditions that must be met for a contract to be formed.

• First, there must be an offer.
• Second, there must be acceptance.
• Third, there must be consideration.
• Fourth there must be intention to create legal relations. And,
• Fifth, the agreement must be complete and certain.

• [54] They contend the only evidence of an offer having been made appears to be Mr Collier's recollection that when discussing the possibility of a role, with lessor remuneration, reporting to Mr Crane, "In time you would work your way back into the business". A&G states that firstly, this is not an offer, it is a statement about a different role from the one that Mr Collier was performing. Further they say that even if there had been an offer, there is no evidence that there had been consideration.

• [55] A&G reject Mr Collier's submission that the ex-gratia payment to 31 January 2025 was consideration for the new contract, noting clear evidence that this payment related solely to the ending of his employment in the GCOO role and that such a payment could not also be consideration for a second contract. Such a claim they say, is impossible at law, as a single payment cannot be consideration for two different contracts. They say the only evidence suggesting consideration is Mr Kangatharan's reference to "lower remuneration". They argue that with such insufficient clarity around what salary might attach to the proposed position, there is little question that the question of remuneration was one which had been left to the parties to settle by some future agreement. As such, any such agreement if so reached would fall into the third category of Masters and Cameron,[52] and would therefore not be deemed to be a binding agreement.

• [56] A&G also reject Mr Collier's argument that the second contract can be "inferred" from the parties' conduct. A&G contend that, in contrast to the circumstances in Quinn v Jack Chia (Australia) Limited,[53] where the employee has performed work for the employee under the "inferred contract", Mr Collier did not perform any work for A&G other than as GCOO, nor did A&G pay him for any such work. And as such, there is no basis upon which to infer a second contract.

• [57] In response to Mr Collier's alternate contentions that:

1. A&G withdrew the termination letter to the extent that it constituted a valid notice of termination, and
2. by accepting the second contract, Mr Collier agreed to the withdrawal of the termination letter.

(a) Mr Collier's first alternative is wrong at law. A party cannot unilaterally withdraw

their exercise of a right to terminate. Once exercised, the termination is final.[55]

(b) Mr Collier has not led evidence that supports his second alternative. There is no

evidence that A&G offered to withdraw the termination letter. So, Mr Collier cannot prove there was any agreement to withdraw the letter.

(c) Most importantly, the alternatives are factually and legally inconsistent with his

acceptance that A&G terminated the First Contract. The termination letter could only terminate the First Contract. It could not terminate the second contract because, in Mr Collier's case, that is a different contract, which did not exist when the termination letter was prepared or delivered. So, the effect of Mr Collier's alternatives must be that A&G did not terminate the First Contract. Such a position is illogical where Mr Collier already accepts that that is (1) that A&G withdrew the termination letter to the extent that it constituted a valid notice of termination, and (2) by accepting the second contract, Mr Collier agreed to the withdrawal of the termination letter. Not the case, and the Commission would reject these alternative arguments.

• [58] In circumstances where Mr Collier has not proven the existence of a second contract, A&G submit there can be no doubt that Mr Collier's employment came to an end on 11 December 2024.

• [59] Viewed objectively, having considered Mr Kangatharan and Ms Valentine's evidence regarding their actions prior to the meeting, Mr Collier and Mr Kangatharan's evidence of the meeting, and all witnesses' recollection of post meeting conduct, I have not been convinced that a second contract was entered into, not that it was reasonable for Mr Collier to have presumed as such. I accept that during this discussion, Mr Kangatharan may have suggested that, should Mr Crane be interested in offering Mr Collier the new role, he may consider extending him until the new role commences, however I find that any such consideration would only have been intended, in the circumstance that the proposed role was offered to and accepted by Mr Collier at some later stage. Having considered all of the evidence and circumstances of this matter, I find that:

• Mr Collier's employment in the Role of GCOO came to an end on 11 December 2024;
• The parties did discuss the proposed new strategy role and Mr Kangatharan agreed to talk to Mr Crane of Mr Collier's interest in pursuing it;
• Mr Collier was being considered for another separate role, however no binding agreement was reached and no second contract of employment was entered into; and
• Mr Collier's termination was not withdrawn or retracted at any time.

• [60] Having found Mr Collier's employment came to an end on 11 December 2024, Mr Collier had until Thursday 2 January 2025 to file his application within the 21-day timeframe (noting 1 January 2025 was a public holiday). As Mr Collier filed his application on 11 February 2025, I find that his application was 40 days out of time.

• [61] Additional time can be allowed under section 366(2) of the Act if there are exceptional circumstances. These are circumstances that are "out of the ordinary course, or unusual, or special, or uncommon" but that "need not be unique, or unprecedented, or very rare".[56]

• [62] In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

1. Mr Collier's reasons for the delay; and
2. any action taken by Mr Collier to dispute the dismissal; and
3. prejudice to A&G (including prejudice caused by the delay);
4. the merits of the application; and
5. fairness as between Mr Collier and other persons in a similar position.

Each of these matters must be considered in assessing whether there are exceptional circumstances.

• [63] The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an "acceptable" or "reasonable explanation" of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas 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.[57]

• [64] Mr Collier's submissions in this regard are in two parts. Firstly, that he did not realise, until 3 February 2025, that the new role would not go ahead, and secondly, that during the January period, he was going through a divorce and had caring responsibilities for his children.

Realisation that the new role would not eventuate

• [65] Mr Collier contends that he was led by A&G to believe that he had a continuing employment relationship and that it was not until he received Mr Kangatharan's email of 3 February 2025 that he came to the realisation that he did not.

• [66] Mr Collier's submission in this regard are difficult to accept, particularly noting Ms Valentine's 20 January 2025 email, which clearly advises Mr Collier the options for the narrower role had been considered, and it had been decided that Mr Collier would not be offered the role.

• [67] In closing submissions, Mr Chapman appears to accept that Ms Valentine's 20 January 2025 email was in fact the point at which he came to the realisation that there would not be an ongoing employment relationship, noting that it was likely that it was not read until 21 January 2025.

• [68] Even if it is accepted that Mr Collier did not read Ms Valentine's email until 21 January 2025, at this point, his application was already 20 days out of time, yet rather than immediately taking steps to file his application, Mr Collier waited another 10 days, until 31 January 2025 to send his reply to Ms Valentine and then waits a further 11 days before filing his application on 11 February 2025.

• [69] Mr Collier made much of his wanting to wait for Mr Kangatharan to return, as "Ram is the decision maker on everything in this company."

• [70] A&G reject the suggestion that Mr Kangatharan was the only person who could have made the final call on the strategy role and note that this proposition was not put to any of the witnesses during cross-examination.

• [71] Notwithstanding any of the above, even if I was to accept Mr Collier's submissions at their highest, and take 3 February 2025 as the date of realisation, Mr Collier, still waited another 8 days before filing his application, although at the same time, he acted promptly to respond to Mr Kangatharan, sending an email the very next day (4 February 2025) outlining a range of contractual issues and seeking to resolve them via a non-disclosure agreement and an ex-gratia payment to him of $500,000.

• [72] Viewed objectively, however unreasonable Mr Collier's expectations of being offered a new role were, I accept that it is possible they were held by Mr Collier. As such, the realisation that it was not going to eventuate would have been disappointing. This has been taken into account in my considerations.

• [73] Notwithstanding the above, the evidence demonstrates that on receiving Ms Valentine's email of 20 January 2025, it would have been clear to him that the role he thought he had been offered was not going to eventuate. At this point, Mr Collier's application was already out of time, yet he did not file his application for another 22 days.

• [74] Having considered all of the evidence and circumstances of this matter, I accept that Mr Collier's belief that he would be offered ongoing employment, may provide an explanation for part of the delay, I do not consider it provides a reasonable explanation for all of the delay.

Mr Collier's personal situation and caring responsibilities

• [75] It was Mr Collier's evidence that during January 2025, he was going through "a bitter separation" from his wife and that between 20 and 31 January 2025 he was involved in dealing with lawyers regarding the separation and sale of their home, giving instructions for legal letters and/or attending conferences on a daily basis.[58] Additionally, Mr Collier notes for 6 of the days during this period, he was the sole parent for his two young children.

• [76] A&G do not dispute this, but do note his evidence that during this period he was routinely meeting with lawyers, suggesting that it is difficult to accept that he could not also have sought advice on this application. With respect to Mr Collier's submissions that he was required to care for his children for 6 out of the 12 days, they raise the obvious question of why he could not have made the application on any of the other 6 days. A&G submit, and I agree, that while this time was understandably difficult for Mr Collier, these circumstances do not offer a reasonable explanation as to why Mr Collier could not have made his application during this time.

• [77] Perhaps more difficult to accept though is Mr Collier's explanation of the delay between 3 and 11 February 2025. On Mr Collier's own evidence, the personal issues outlined above, occurred between 20 and 31 January 2025. In closing submissions, Mr Chapman suggested that the delay in filing his application after 3 February 2025 was due to the detailed nature of the application that was filed. Mr Chapman suggests that the Commission allows employees 21 days from the date of dismissal to lodge their application, and further that the delay in this period can be satisfactorily explained by the need to seek advice, take instructions and prepare the paperwork.

• [78] Again, this is a difficult argument to accept, particularly noting that Mr Collier seemed able to draft and send his 4 February 2025 email. Further, it is relevant that Mr Collier's application was made the very same day that he received Mr Kangatharan response to his 4 February 2025 email (11 February 2025). Viewed objectively, it must then follow that either the paperwork was pulled together that same day, and was therefore not particularly difficult to prepare, or that it was prepared in advance, awaiting a response to Mr Collier's 4 February 2025 email. In either circumstance, Mr Chapman's arguments do not provide a reasonable explanation for the delay.

• [79] Having considered the submissions and circumstances of this matter, whilst Mr Collier may have provided explanations for some part of the delay, I have not been persuaded that he has provided a reasonable explanation for all of the delay. This therefore weighs against a finding that exceptional circumstances exist.

• [80] Mr Collier's submission in this regard go to his action to follow up with A&G regarding the proposed new role. It is again submitted that it was the receipt of Mr Kangatharan's 3 February 2025 email that left no room for doubt that his employment had been terminated, and that the application was filed within 8 days of this email. I do note that Mr Collier wrote to Mr Kangatharan upon receiving this email. This has been taken into account, although it is noted that this email focused largely on contractual issues between the parties rather than the dismissal. In any event, as already discussed, I have not accepted that 3 February 2025 was the date that Mr Collier realised he had been dismissed.

• [81] A&G submit that during the 63-day period between Mr Collier's dismissal and when he filed his application, he did not take any positive steps to dispute his dismissal. They further accept that such a failure is not unusual, and that whilst this failure weighs against a finding of exceptional circumstances, such weight should be minimal.

• [82] Having considered the evidence and circumstances of this matter, I found this to be a neutral consideration.

• [83] Prejudice to the employer means unfair disadvantage to the employer that was caused by the delay in filing the application 'to a general presumption of prejudice.' A long delay gives rise 'to a general presumption of prejudice'.[59]

• [84] Mr Collier submits that A&G have not suffered any prejudice, including as a result of any delay in making the application. A&G submit that Mr Collier's 42-day delay caused limited prejudice to them, being the additional time and expense of objecting to this complex extension of time application, and the impact that delay has on evidence of oral conversations. Accordingly, they say, and I agree, that this factor should be considered as a neutral consideration.

• [85] The parties agree that the Commission should not embark on a detailed consideration of Mr Collier's substantive claim. Instead, as is the usual practice where the Commission cannot determine the merits of an applicant's claim, the Commission should regard this factor as neutral. I agree, and have treated this factor as neutral to my considerations.

Fairness as between Mr Collier and other persons in a similar position.

• [86] This factor concerns the importance of applying principles consistently across similar

• [87] Mr Collier notes that the circumstances of this matter are unique and it is therefore difficult to assess fairness between Mr Collier and others who have been in similar circumstances.

• [88] Mr Collier does however provide two cases, that he says provided a comparison with respect to the length of the delay. It seems the only similarity between these two matters is that one was 45 days late and one was 48 days late. Noting the very different circumstances of these matters to Mr Collier's, I have not found either case to be instructive. I treated this factor as neutral to my considerations.

• [89] A person who makes a general protections application must make an application within 21 days after the dismissal took effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and considering the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period.

• [90] The application is dismissed. An order to that effect will be issued separately.

[1] P.143 of the DCB - Witness Statement of Ram Kangatharan.

[2] P.80 to 84 of the DCB - Annexure B to Witness Statement of James Collier.

[3] P.84 of the DCB - Annexure C to Witness Statement of James Collier.

[4] P.43 of the DCB - Witness Statement of James Collier.

[5] P.180 of the DCB - Annexure RK-2 to Witness Statement of Ram Kangatharan.

[6] P.144 of the DCB - Witness Statement of Ram Kangatharan.

[9] P.1 of Witness Statement of Janita Valentine.

[14] P.145 of the DCB - Witness Statement of Ram Kangatharan.

[17] P.145 of the DCB - Witness Statement of Ram Kangatharan.

[23] P.43 to 44 of the DCB - Witness Statement of James Collier.

[24] P.44 of the DCB - Witness Statement of James Collier.

[31] P.144 to 145 of the DCB - Witness Statement of Ram Kangatharan.

[34] P.204 of the DCB - Witness Statement of Adam Crane.

[36] P.46 of the DCB - Witness Statement of James Collier.

[37] P.2 of Witness Statement of Janita Valentine.

[38] P.46 of the DCB - Witness Statement of James Collier.

[39] P.26 to 27 of the DCB - Annexure C of Form F8.

[40] P.26 of the DCB - Annexure C of Form F8.

[41] P.23 of the DCB - Annexure B of Form F8.

[42] P.46 of the DCB - Annexure H of Witness Statement of James Collier.

[43] P.46 of the DCB - Annexure I of Witness Statement of James Collier.

[44] P.198 of the DCB - Annexure RK-11.

[49] P.36 of the DCB - Applicant Submissions.

[51] P.36 of the DCB - Applicant Submissions.

[52] [1954] HCA 72; (1954) 91 CLR 353.

[54] P.132 to 133 of the DCB - Respondent Submissions.

[55] _Birrell v Australian National Airlines Commissi_on (1984) 5 FCR 447; [1984] FCA 419 at 458 (FCR) ("withdrawal

of a notice of termination of a contract of employment can only be effected by consent of both parties"); Bibby

Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 at [65], [80].

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

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

[58] P.48 of the DCB - Witness Statement of James Collier.

[59] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J).

[60] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41].

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