s.365 - Application to deal with contraventions involving dismissal

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 6 January 2025, Mr James Lim made a general protections application to the Fair Work Commission under section 365 of the Fair Work Act 2009 (the Act). Mr Lim alleges that he was dismissed by Bahn Thai Group Pty Ltd (BTG) on 23 December 2024 in contravention of his workplace rights.

• [2] BTG opposed the application, by way of raising two jurisdictional objections, that the application was lodged out of time and that Mr Lim was not dismissed. Specifically, BTG submitted that Mr Lim resigned on 4 December 2024.

• [3] Section 366(1) 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). If the effective date of dismissal was 4 December 2024, the 21st day was 25 December 2024, which was a public holiday, as was 26 December 2024. Accounting for public holidays, the next business day was 27 December 2024 - Mr Lim had until then to lodge his application in time. Mr Lim lodged his application on 6 January 2025, therefore his application initially appeared to have been 10 days out of time.

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

• [5] I issued directions on 24 February 2025, for the parties to file their material. The question of whether to grant additional time was dealt with at a Determinative Conference on 3 April 2025. Mr Lim represented himself and Mr Gabi Gerges, MCR Partners Pty Ltd and accountant of BTG, represented BTG, with Ms Warraporn Hockney present as BTG's Director.

• [6] For the following reasons, I have decided not to grant Mr Lim an extension of time.

• [7] I note this decision only considers and decides whether to grant Mr Lim an extension of time to file his application, and not whether he was dismissed or resigned.

• [8] Mr Lim's F8 application listed the date of dismissal as 23 December 2024. This date was inconsistent with the date he had provided in the F9 application he had originally lodged. The F9 application noted that the dismissal took effect on 2 December 2024. This inconsistency was drawn to Mr Lim's attention during the conference. Mr Lim confirmed that he had made a typographical error in his F8 form and that the correct date of dismissal should have been 2 December 2024. Mr Gerges said he was content to accept this as the dismissal date.

• [9] Therefore, Mr Lim had until Monday 23 December 2024 to file his application within the 21-day timeframe. As Mr Lim filed his application on 6 January 2025, I find that his application was 14 days out of time.

• [10] 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".[1]

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

a) Mr Lim's reasons for the delay; and

b) any action taken by Mr Lim to dispute the dismissal; and

c) prejudice to BTG (including prejudice caused by the delay); and

d) the merits of the application; and

e) fairness as between Mr Lim and other persons in a similar position.

• [12] Each of these matters must be considered in assessing whether there are exceptional circumstances. Before considering these matters, it is helpful to set out some background facts.

• [13] Mr Lim commenced employment with BTG on 19 August 2024 as General Manager.

• [14] Mr Lim attended a meeting with Ms Hockney on 2 December 2024. It was Mr Lim's evidence that during the meeting, he asked Ms Hockney whether his employment would continue. Ms Hockney responded that she wished to discontinue his employment.

• [15] On 3 December 2024, Mr Lim sent Ms Hockney correspondence that he had drafted for her to sign. The correspondence confirmed his termination and included a range of other matters relating to his contract of employment and alleged outstanding payments.

• [16] Ms Hockney did not sign the correspondence, saying she would confirm by 6 December 2024.

• [17] On 11 December 2024, Mr Lim filed an unlawful termination dispute application using the Commission's F9 form. The application noted he had been dismissed on 2 December 2024.

• [18] On 12 December 2024, the Commission emailed Mr Lim a document explaining that he may not be eligible to make this application. The document advised Mr Lim that he had 21 days from the date his dismissal took effect to withdraw his unlawful termination application and lodge a new application. Further, the document stated "There are strict time limits. You need to decide which application you want to make as soon as you can".

• [19] The Commission's records show that the Commission attempted to call Mr Lim and had left a voice mail further explaining that as he had not met the minimum employment period, he may not be eligible to lodge an unfair dismissal application. Additionally, an SMS was sent to Mr Lim requesting a call back.

• [20] On 20 December 2024, the Commission called Mr Lim to confirm whether he had received the email sent on 12 December 2024. Mr Lim said that he replied to this email, but he may have replied to the wrong email address. It was again explained to Mr Lim that he may need to lodge a different application, and that he may not be eligible to lodge an unlawful termination application. That same day, Mr Lim discontinued his F9 application and further information regarding making a general protections application was sent to him from the Commission.

• [21] Much of the material filed by Mr Lim focused on matters that are not instructive when considering whether Mr Lim should be granted an extension of time. Whilst I acknowledge the significance of all the material filed, particularly as it relates to alleged outstanding payments, only material that relates to Mr Lim's application being out of time has been traversed in this decision.

• [22] Mr Lim argues the delay in lodging his application was due to circumstances beyond his control. Specifically, he argues his application was delayed because he had originally attempted to lodge his claim on time but was later advised that a change in lodgement form to Form 8 was required. This administrative change he says, caused an unexpected delay. Despite this, he contends that he took all reasonable steps to comply within the deadline.

• [23] Mr Lim believes that he acted diligently and initiated the lodgement within the statutory period. Mr Lim provided documents, including submission records, emails, and payment receipts, that he says demonstrate that he had actively worked towards completing the application on time.

• [24] Further, Mr Lim suggested that the delay in lodging his application was minimal and was not due to negligence or a deliberate disregard for the deadline and as such, the short delay should not be a reason to dismiss an otherwise valid claim.

• [25] During the determinative conference, Mr Lim additionally claimed that the delay in lodging his application was due to the stress of being dismissed.

• [26] Mr Lim submits that granting an extension would not cause any prejudice to BTG as they have been aware of the claim and the dispute since his initial lodgement. Additionally, he does not believe the delay has resulted in any disadvantage or additional burden on BTG.

• [27] Mr Lim submits that his claim has strong legal grounds, and believes it is in the interest of justice for the Commission to consider it.

• [28] Mr Lim argues that denying his request for an extension would result in a significant disadvantage to him as an employee. The Fair Work Commission he says, plays a crucial role in ensuring that employees have access to a fair and just process, and as such, he respectfully submits that a minor procedural delay should not prevent his legitimate claim from being heard.

• [29] BTG advised that they had nothing further to add and did not file any further material beyond their F8A which has been considered. During the conference, Mr Gerges noted that any suggestion that the delay in filing the application was due to stress were without merit and maintained BTG's view that there were no exceptional circumstances.

• [30] During the determinative conference, Mr Gerges was extremely argumentative and had to be reminded on several occasions not to talk over Mr Lim or myself. Ms Hockney was sworn in; however, she did not provide oral evidence of any substance in addition to the information provided in the F8A or the limited submissions made on her behalf by Mr Gerges.

• [31] 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 the circumstances must be considered.[2]

• [32] I accept that when Mr Lim first lodged his unlawful termination dispute application using the Commission's F9, he was within the 21-day timeframe however, as noted above, the Commission made multiple attempts to notify Mr Lim that he may need to discontinue his application and lodge an F8. The Commission was also clear in advising Mr Lim that this would need to be done within 21 days of the date of dismissal.

• [33] It is Mr Lim's evidence that he did not receive the email regarding his ineligibility to lodge the F9 until a week after he lodged it on 11 December 2024. The Commission's records however confirm that he was notified a day after he had lodged his F9 by way of email, telephone, and text message. It took just over a week after this for the Commission to finally get in touch with Mr Lim to further explain the ineligibility. Notwithstanding the above, when the Commission did finally speak to Mr Lim about his application, he still had until 23 December 2024 to lodge another application.

• [34] It is not clear precisely when Mr Lim became aware that he had lodged the wrong application, however it is Mr Lim's own evidence that he did receive the first email, and responded, but that he "must have sent his response to the wrong email address". The fact remains however, that Mr Lim discontinued his F9 application on 20 December 2024 and did not lodge his F8 application until 6 January 2025.

• [35] The only explanation he has provided as to why it took him another 17 days to file the correct form was that he was stressed. During the determinative conference, I asked Mr Lim what he was doing during this time, and he replied that he stayed at home because he was stressed. I asked Mr Lim if he had seen a doctor during this period or had any medical evidence to support this claim - he did not. Mr Lim further confirmed that he had access to a computer and the internet during this time.

• [36] Taking all the facts and circumstances of this matter into consideration, I have not been convinced that Mr Lim's lodging of an incorrect form is a reasonable explanation of the delay, nor have I seen any evidence to indicate that Mr Lim was suffering a medical condition that would have rendered him incapable of filing the correct form within the required timeframe. This consideration weighs against the granting of an extension of time.

• [37] No direct evidence going to this point was provided by Mr Lim, on that basis, I have treated this factor as a neutral consideration in this case.

• [38] 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'.[3] I have not been convinced that a delay of 14 days demonstrates any unfair disadvantage to the employer. I therefore find this to be a neutral consideration.

• [39] As noted, BTG has also raised a second jurisdictional objection on the grounds that they believe that Mr Lim was not dismissed. If an extension of time were to be granted, this question would need to be resolved before the application could proceed.

• [40] I do note however, that much of the material filed by Mr Lim appears to focus on demonstrating that he was unfairly dismissed, even though he did not file an unfair dismissal application, presumably as he did not meet the minimum employment period. Very little of the material filed focussed on demonstrating that Mr Lim's dismissal was a breach of the General Protections provisions of the Act. Consequently, there is insufficient evidence before me to make an assessment. Accordingly, I have regarded the merits to be a neutral consideration in this case.

Fairness as between the person and other persons in similar position

• [41] This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.

• [42] In summary, none of the considerations I need to consider weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case.

• [43] As there are no exceptional circumstances, no additional time can be allowed for Mr Lim to make his application. This means that Mr Lim is not entitled to apply for a general protection's application.

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

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

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

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

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