Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time - circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Mr Mathew Oliver under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] Mr Oliver's dismissal took effect on 31 August 2020. His application was lodged on 20 October 2020. The period of 21 days ended at midnight on 21 September 2020 and the application was therefore lodged 29 days out of time. Mr Oliver seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.

[3] On 9 December 2020 I issued directions for the parties to file materials. In accordance with those directions, materials were filed by Mr Oliver on 30 December 2020 and by the Respondent on 20 January 2021.

[4] On 8 February 2021 I conducted the proceeding by way of determinative conference by telephone. At the hearing Mr Oliver appeared on his own behalf. Mr Anthony Runia, Employee Relations Advisor, appeared on behalf of the Respondent.

[5] Mr Oliver commenced employment with Bunnings Group Limited (Respondent) on 2 September 2017. He was dismissed on 31 August 2020.

[6] On 9 September 2020, Mr Oliver lodged an unfair dismissal claim (matter number U2020/12142) with the Commission disputing his dismissal (Unfair Dismissal Claim)[1].

[7] On 9 October 2020, the parties attended a telephone conciliation where a settlement of the Unfair Dismissal Claim was agreed, subject to a three day cooling off period.[2] The Respondent provided Mr Oliver with a release agreement reflecting the agreed terms of settlement at approximately 6 pm on Monday 12 October 2020.[3]

[8] On 14 October 2020, Mr Oliver emailed the Respondent and the Commission stating that he did not wish to proceed with the settlement reached on 9 October 2020.[4] Mr Oliver's withdrawal from the settlement was therefore within the cooling off period provided to unrepresented parties by the Commission in these circumstances.

[9] On 20 October 2020, Mr Oliver lodged a general protections application.

[10] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that 'exceptional circumstances' exist. This establishes a high hurdle for an applicant.[5]

[11] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[6] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can 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.[7]

[12] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

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

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

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

[13] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[8] or a reasonable explanation.[9] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[10] the Full Bench noted that the absence of an 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 the circumstances must be considered.[11] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[12]

[14] Mr Oliver submits that the reasons for the delay in lodgement are manifold.

[15] Firstly, Mr Oliver says that he was distressed following his dismissal and that this aggravated his existing mental health condition.[13] He says that since the date of his dismissal he has been suffering from "severe mental health issues" and that an assessment from his General Practitioner indicates high levels of stress and severe anxiety with mild depression.[14] He says that a mental health plan has been made, he is seeing a psychologist and has been prescribed medication.[15] He says that his mental capacity and energy levels have been very low and that his sleeping has been erratic.[16] He says his poor mental health made it incredibly difficult for him to assess his situation and caused a much slower response.[17] At hearing, Mr Oliver said that his focus and concentration had been "appalling". Secondly, Mr Oliver says that the Commission Registry made a number of errors in relation to the Unfair Dismissal Claim which resulted in the relisting of the conciliation conference from 29 September 2020 to 9 October 2020 and caused a delay of 11 days.[18] Thirdly, Mr Oliver says the Respondent did not submit its response to the Unfair Dismissal Claim within 7 days as is required. He says he received the response on 8 October 2020 and that in the absence of that response he could not adequately assess the strength of his case. He says the termination letter was vague and due to the Respondent's late response he was deprived of information and time to submit the application.[19] Fourthly, Mr Oliver says that the delay in the Respondent providing the settlement agreement prevented him from seeking advice promptly and caused a 3 day delay.[20] Finally, Mr Oliver submits that he was unaware of his ability to lodge the application. He says that the Respondent did not provide the Fair Work Information Statement (FWIS) upon the commencement of his employment or at any time thereafter. He submits that if the FWIS had been provided to him he would have been aware of his ability to commence a general protections application.[21]

[16] I accept that following his dismissal Mr Oliver was distressed. However, distress following the loss of one's employment is a common and understandable reaction. It is not unusual, special or uncommon. The only medical evidence before the Commission is a mental health plan dated 5 October 2020 (Plan)[22]. The Plan refers Mr Oliver for psychological therapy. It provides a diagnosis of "generalised anxiety" and subsequently states "Has anxiety and possible mild reactive depression secondary to persistent anxiousness". It provides that Mr Oliver has no past recorded mental health history and that he has never received specialist mental health care, although notes that he received some psychological therapy "about 10 years ago." It does not prescribe any medication, although at hearing Mr Oliver said that he had subsequently been prescribed medication and his mental health had improved. However, he did not give any evidence as to when he commenced medication. The Plan provides that most aspects of Mr Oliver's mental status examination are normal. The exceptions to this are in relation to:

• attention/concentration, which states "easily distracted":

• mood, which states "says a bit flat";

• sleep, which states "restless"; and

• anxiety, which selects "other" but provides no further detail.

[17] Accordingly, there is no probative evidence before the Commission that Mr Oliver has any existing mental health condition or currently has severe mental health issues. There is no probative evidence that he has been diagnosed with high levels of stress or severe anxiety, or has been prescribed medication, although I accept his evidence that this has at some subsequent time occurred. Further, there is no probative evidence before the Commission that Mr Oliver's mental health in any way precluded him from lodging the application within time. On the evidence before the Commission, Mr Oliver's mental health does not provide a reasonable or acceptable explanation for the delay.

[18] As to the delay in the listing of the conciliation conference for the Unfair Dismissal Claim, I am unable to see how this in any way explains Mr Oliver's delay in lodging the application. The relisting of the conciliation conference was in respect of the Unfair Dismissal Claim. The relisting delayed the possible settlement of that claim. It in no way affected Mr Oliver's ability to discontinue the Unfair Dismissal Claim and lodge the application. Further, even if the conciliation of the Unfair Dismissal Claim had proceeded as originally listed on 28 September 2020, any subsequent general protections application made after that conciliation would still have been out of time. Accordingly, any errors made by the registry in relation to the Unfair Dismissal Claim do not provide a reasonable or acceptable explanation for the delay in lodging the application.

[19] I accept that the Respondent did not submit its response to the Unfair Dismissal Claim within 7 days of receiving it. I also accept that the termination letter is general in its terms. However, for the following reasons I reject the submission that Mr Oliver was as a consequence unable to accurately determine the strength of his case or was deprived of information or time to submit the application and that this explains the delay in lodging the application. Firstly, as an applicant it is for Mr Oliver to formulate his claim and determine the jurisdiction in which it is to be commenced. Secondly, the Respondent submitted that Mr Oliver was provided with copies of discussion records after each of the disciplinary meetings on 18 March 2020 and 30 April 2020 and declined a record of the disciplinary meeting held on 26 August 2020 and was therefore in possession of all relevant information to determine when and how to dispute his dismissal.[23] Mr Oliver's evidence at hearing was that he was provided with a copy of the discussion records of the disciplinary meeting on 18 March 2020 at the time and that he sought and, I infer, was provided with, production of his employee file on 6 September 2020. He therefore had access to the Respondent's records of the above meetings prior to expiry of the 21 day statutory time limit for the filing of either a general protections or an unfair dismissal claim. In these circumstances I consider that Mr Oliver was in possession of all the necessary information to determine how he wished to dispute his dismissal. Thirdly, Mr Oliver elected to dispute his dismissal by way of the Unfair Dismissal Claim. A search of the Commission's files demonstrates that in the Form F2 he filed in the Unfair Dismissal Claim, Mr Oliver concluded that his dismissal was unfair because (amongst other reasons):

• his dismissal was based on a flawed investigation;

• other team members with similar conduct were not disciplined;

• he was denied procedural fairness;

• the Respondent did not follow its own policies/procedures;

• a lack of clear and effective performance management;

• the Respondent did not consider his then current circumstances; and

• his dismissal was disproportionate to the conduct relied upon to dismiss him.[24]

[20] Mr Oliver therefore put forward clear and certain submissions as to why his dismissal was unfair. Accordingly, the Form F2 does not indicate that Mr Oliver was deprived of information such as to be unable to formulate, assess or lodge a claim in dispute of his dismissal. Finally, I consider that Mr Oliver's general protections application is formulated on an entirely different basis to that of the Unfair Dismissal Claim. I consider that the Form F2 indicates that Mr Oliver had no confusion as to the claim he had formulating and was lodging. It is entirely distinguishable from the claims made in the application. On this basis, I also reject Mr Oliver's oral submission that as the Unfair Dismissal Claim and the application rely upon the same underlying facts they are substantially the same claim. Mr Oliver had the option to file either an unfair dismissal claim or a general protections claim. He elected to file the Unfair Dismissal Claim. I do not accept that such an election constitutes a reasonable or acceptable reason for delay.

[21] As to the asserted delay in the provision to Mr Oliver of the settlement agreement, I am also unable to see how this in any way precluded Mr Oliver from lodging the general protections application in time or otherwise adequately explains the delay. Firstly, I do not consider that the provision of the agreement one and one half business days after the settlement constitutes a delay. Secondly, even if the settlement agreement had been provided to Mr Oliver on the day of conciliation, being 9 October 2020, and he had sought advice that day, any general protections application made at that time would have nonetheless been out of time. Finally, Mr Oliver advised the Respondent and the Commission that he was withdrawing from the settlement agreement on 14 October 2020, following having received legal advice in relation to the settlement agreement on 13 October, but did not lodge the application for a further six days. The asserted delay by the Respondent in providing the settlement agreement does not provide a reasonable or acceptable explanation for the delay.

[22] As to Mr Oliver's submission that because the Respondent failed to provide him with a FWIS he was unaware of his right to make a general protections application, firstly, it is well established that ignorance of one's rights is not an acceptable explanation for late lodgement.[25] Secondly, I consider the Form F2 filed by Mr Oliver to very clearly evince an intention by him to pursue an unfair dismissal claim. I find no support in that document for the contention that had he been provided with the FWIS he would have pursued a general protections application. The failure to provide Mr Oliver with the FWIS and his asserted lack of awareness as to his right to make a general protections application do not provide a reasonable or acceptable explanation for the delay in lodgement.

[23] In light of the above, I do not consider that Mr Oliver has provided a reasonable or acceptable explanation for the delay, whether those reasons are considered on an individual basis or collectively. This weighs against the grant of an extension of time.

Action taken by the person to dispute the dismissal

[24] It is not contested that Mr Oliver lodged the Unfair Dismissal Claim on 9 September 2020 within the statutory time frame. I consider that by doing so Mr Oliver disputed his dismissal. This weights in favour of the grant of an extension of time.

[25] Mr Oliver submits that there is no prejudice to the Respondent as it has been aware of the dispute in relation to his dismissal since September 2020.[26] The Respondent submits that in the present circumstances the delayed filing of the application gives rise to prejudice. It says that it has expended time and resources in responding to the Unfair Dismissal Claim, attending the conciliation in relation to that claim and preparing settlement documentation. It says it has now expended further time and resources in responding the application.[27] I accept those submissions. I consider that in the present circumstances the Respondent will suffer prejudice from the delay. It has already been put to the time and cost of responding to the Unfair Dismissal Claim, attending the conciliation and preparing a settlement agreement. This weighs against the grant of an extension of time.

[26] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[27] In his materials, Mr Oliver alleges that adverse action was taken against him in breach of sections 340, 343 and 351 of the Act. He alleges that he was dismissed for exercising his workplace rights and exposing management failures.[28] He alleges, amongst other things, that he made enquiries about his entitlements under an enterprise agreement, raised health and safety concerns, made complaints of bias, unfair treatment and procedural failures and bullying, was discriminated against because of his mental health and taking authorised sick leave. The Respondent denies the allegations and say that it dismissed Mr Oliver for breach of its Respectful Workplace Policy on 18 March 2020 and 1 August 2020 and as a consequence of a formal warning issued on 30 April 2020.[29]

[28] Given the interlocutory nature of these proceedings, and on the material currently available to the Commission, it is not possible to form a concluded view as to whether adverse action was taken against Mr Oliver in breach of section 340, 343 and/or 351 of the Act. The evidence of Mr Oliver and the Respondent would need to be fully tested under oath. In these circumstances, I reject the Respondent's submission that the Commission ought find that the application has limited prospects of success[30] and consider the merits of Mr Oliver's application to be a neutral consideration.

Fairness as between the person and another person in a like position

[29] Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[31] Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.[32] Mr Oliver made no written submissions as to this consideration. At hearing he submitted that there are persons still employed at the Respondent who have engaged in more serious conduct than he who are still employed. I do not consider such matters to be presently relevant. The Respondent drew the Commission's attention[33] to the decisions of Lane v Kangaroo Island Drive & Adventures Pty Ltd[34] and Green v Bilco Group Pty Ltd.[35] It submitted that the present matter is distinguishable from those cases. I accept that submission. Mr Oliver has not at any point contended that he erroneously filed the Unfair Dismissal Claim, nor do I consider he did so. He has simply elected to discontinue the Unfair Dismissal Claim in favour of pursuing a general protections application. Finally, the Respondents relied upon the decisions of Everingham v Candice Care Inc[36] (Everingham) and Soubra v Adapt-A-lift Group Pty Ltd[37] (Soubra). In both Everingham and Soubra the applicant had previously lodged an unfair dismissal claim, which was subsequently discontinued in favour of a general protections application. Exceptional circumstances were found not to exist in either case. Whilst each matter turns on its own facts, I consider those decisions do, generally, support the Respondent's position. I consider this weighs against the grant of an extension of time.

[30] The time limit that applies to the exercise of a person's right to bring an application under section 365 reflects the Parliament's intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[31] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mr Oliver's application.

[32] Accordingly, I decline to grant an extension of time under section 366(2). Mr Oliver's application under section 365 of the Act is dismissed.

[1] Applicant's outline of argument: extension of time, q.1d at [23]; Respondent's outline of argument at q.1e at [1]

[2] Applicant's outline of argument: extension of time, q.1d at [35]; Respondent's outline of argument: extension of time, q.1e at [2]

[3] Applicant's outline of argument: extension of time, q.1d at [36]; Respondent's outline of argument: extension of time, q.1e at [2]

[4] Respondent's outline of argument: extension of time, q.1e at [3]

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [14]

[6] [2011] FWAFB 975

[8] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, per Gostencnik DP at [9]

[9] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]

[10] [2018] FWCFB 901

[12] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

[13] Applicant's outline of argument: extension of time, q.1d at [14]

[22] Form F8A Application, Attachment; Applicant's outline of argument: extension of time, Attachment

[23] Respondent's Further Submissions at [13]

[25] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

[26] Applicant's outline of argument: extension of time, q.1f

[27] Respondent's outline of argument: extension of time, q.1g at [1]

[28] Applicant's outline of argument: extension of time, q.1f at [1]

[29] Respondent's outline of argument: extension of time, q.1h at [1]

[31] Wilson v Woolworths [2010] WA 2480 at [24-29]

[32] Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645 at [26]

[33] Respondent's outline of argument: extension of time, q.1f at [2]

[35] [2018] FWC 6818

[36] [2019] FWC 4750

[37] [2020] FWC 5366

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