Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - jurisdictional objection - application filed out of time - application dismissed.

• [1] On 16 October 2024, Mr Michael Maina (Mr Maina / the Applicant) applied to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as Rio Tinto Aluminium Limited (the Respondent).

• [2] The day before he filed this application C2024/7495, 15 October 2024, the associate to Deputy President Easton sent the following correspondence to Mr Maina:

On 27 September 2024, Mr Michael Maina filed the attached Unfair Dismissal Application with the Fair Work Commission. The unfair dismissal application names Rio Tinto Aluminium Limited as the Respondent. The unfair dismissal application has been assigned the file number U2024/11585.

On 9 October 2024, the Commission received the attached General Protections Application involving dismissal from Mr Maina. The general protection application also named Rio Tinto Aluminium Limited as the respondent. The general protections application has been assigned the file number C2024/7252.

Both applications have been referred to Deputy President Easton, Regional Coordinator.

Section 725 of the Fair Work Act 2009 prohibits the making of multiple applications in relation to the same dismissal. In particular, a second application must not be made. It is therefore the Deputy President's provisional view that the general protections application (matter C2024/7252) cannot continue because of section 725 of the Act.

A Full Bench of the Fair Work Commission in the matter of Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 said at [30]-[31]:

"[30] It follows from s.725 of the Act that the applicant is statutorily barred from making a general protections application unless the unfair dismissal application is withdrawn (or otherwise fails for jurisdiction reasons). Section 588 of the Act allows an applicant to discontinue an application in accordance with any procedural rules, whether or not the matter has been settled. Rule 10 of the Rules deals with the discontinuance of applications before the Commission by the applicant lodging a notice of discontinuance or giving appropriate notice that, inter alia, the applicant wishes to withdraw the application.

[31] The appropriate course for the applicant in the present matter to take if he seeks to pursue an application under s.365 of the Act in relation to his dismissal in lieu of the unfair dismissal application, is to withdraw the s.394 application and to file a s.365 application. In such circumstances, the appropriate procedural and other requirements under the Act for the making of the s.365 application will need to be met and an extension of time sought in accordance with s.366 of the Act."

If Mr Maina wants to pursue a general protections claim instead of an unfair dismissal claim he should consider following the course referred to by the Full Bench above, discontinue both applications and file a new s.365 general protections claim. Alternatively, Mr Maina might choose to continue with the first unfair dismissal application filed (matter U2024/11585) and discontinue the general protections claim**.**

Mr Maina has the opportunity to make any submissions about the above matters before the Deputy President makes his decision about dismissing the second application.

Could Mr Maina please provide any response to the above matters by no later than 4:00pm on Wednesday 23 October 2024? If Mr Maina wants to discontinue one or both applications he can do so by sending a reply email indicating which matter(s) he would like to discontinue."

• [3] As is set out in the email from Deputy President Easton's chambers, the Applicant filed a Form F2 application for Unfair Dismissal remedy on 27 September 2024. The Respondent asserts in its response to this application, and the earlier two applications, that the date of dismissal was 12 September 2024.

• [4] If that is correct, then the Form F2 application was filed 15 days after the termination, and 6 days before the 21-day time limit, the second Form F8 general protections application was filed on 9 October 2024 and was 6 days late, and this application filed on 16 October 2024 would be 13 days late.

• [5] At the hearing on 2 December 2024 conducted via Microsoft Teams, the Applicant represented himself and Mr Lawler from Ashurst Lawyers was granted leave to represent the Respondent. The Applicant provided oral evidence and was briefly cross examined, and Mr Fowler provided a witness statement for the Respondent. The Applicant advised he did not want to cross examine Mr Fowler and his statement was admitted into evidence.[1]

• [6] The Respondent submitted that it is plain and unambiguous that the Applicant was dismissed with effect on 12 September 2024, and was told so in the termination letter dated 28 August 2024 and attached to the evidence of Mr Fowler, which included the following:

"Accordingly, after careful consideration of the facts and and circumstances, and your responses, the Company has decided to terminate your employment effective 12 September 2024."

• [7] The Respondent submitted that any contention that the dismissal took effect on 25 September 2024, or that the Applicant was unaware of when it took effect, is unsustainable in light of Mr Fowler's evidence.

• [8] The Applicant's primary argument was that as his contract of employment provided for four weeks' notice, his date of dismissal was 25 September 2024. The Applicant's oral evidence was somewhat vague concerning his recollections of conversations with representatives of the Respondent, and he attributed this in part to his mental state at the time of his dismissal.

• [9] He appeared to accept at the end of his oral evidence that he was told his date of termination was 12 September 2024, however, he pressed that this was contrary to his contract. The Applicant decided not to challenge the evidence of the Respondent's witness Mr Fowler at the hearing, and conceded during his oral evidence he had been told his date of termination would be 12 September 2024. When considered in light of Mr Fowler's unchallenged evidence, it is clear the date of termination was 12 September 2024, and the Applicant was paid the balance of his payment in lieu of notice.

• [10] As I have found the application was filed out of time, an extension is required in order for the application to proceed. Section 366(2) of the Act provides that the Commission may allow a further period for the application 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 similar position.

• [11] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[2] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [12] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[3] 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.[4]

• [13] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional"[5]

• [14] The Applicant gave evidence that on the same day he filed his first application, being the Unfair Dismissal application on 27 August 2024, he had discussions with Fair Work. He appeared to indicate this was with the Fair Work Ombudsman. I asked him if he may have been referring to the Fair Work Commission. He was unclear however he gave evidence to the effect that he received advice he probably could not pursue an Unfair Dismissal application because if his dismissal had effect from 12 September 2024 he would not satisfy the minimum employment period threshold.

• [15] It appears from this evidence that the Applicant was made aware his first application may not be able to proceed based on the jurisdictional issue concerning the minimum employment period. In this regard, it is notable that his first application stated he did not know his date of dismissal, but the subsequent applications stated his date of dismissal was 25 September 2024.

• [16] I asked the Applicant to give me his reasons for the delay in the event I found his date of termination was 12 September 2024. The Applicant said his reasons for delay are his belief that his termination did not occur until the end of the four-week notice period despite being told otherwise orally and being advised it was 12 September in written correspondence.

• [17] The other argument the Applicant relied on was that he was suffering from poor mental health at the time.

• [18] The Respondent submitted the reason for the delay is unclear given the terms of the termination letter. The evidence of Mr Fowler was that the Applicant was told in a meeting on 28 August 2024 his employment would cease on 12 September 2024, and he told the Applicant in a phone call on 4 September 2024 that his employment was terminating on 12 September 2024. Mr Fowler sent the Applicant an email on 5 September 2024 which again confirmed his employment would cease on 12 September 2024.

• [19] On the evidence, if the termination had effect from 12 September 2024, the Applicant did not satisfy the minimum employment period of six months to bring an Unfair Dismissal application. The Respondent submits the Applicant made a forensic decision to pursue the out of time General Protections application in circumstances where he could not pursue the Unfair Dismissal application.

• [20] I agree with the Respondent that it did all it could to make clear to the Applicant his date of termination after the Applicant sought clarification on this issue. The Applicant's employment contract makes clear that the Respondent is entitled under the contract's terms to pay notice in lieu, either in part, which it did, or in full. There is no right in the contract of employment for the Applicant to insist on working out the notice period.

• [21] I accept on balance that it is likely the Applicant made a forensic decision to pursue the second general protections application when he became aware of the minimum employment period issue in respect of his first application on or around 27 August 2024.

• [22] I have concluded that the Applicant has provided no adequate explanation for why he waited until 9 October 2024 to file his second application, which was 6 days outside the time limit. I am satisfied on the balance of probability he understood that his employment ended on 12 September 2024, and the second application was filed because he was made aware he could not pursue the first.

• [23] The Applicant has submitted that his mental health would also have contributed to the delay. He did not provide any evidence concerning this claim and how it would have impacted on his ability to file his general protections application by 3 October 2024. The Applicant did file the Form F2 application on 27 September 2024, so there appears to be no basis for him to argue he was not capable of filing a Form F8 application by 3 October 2024 or at any time from then up to 9 October when he did file the first Form F8 General Protections application.

• [24] Having considered the evidence and submissions, I am not satisfied that the reason for delay would favour the granting of an extension of time.

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

• [25] The Applicant filed an Unfair Dismissal application within time. It is clear the Applicant took steps to dispute his termination before the expiration of 21 days, however subsequently discovered he could not pursue this application as he did not satisfy the minimum employment period threshold.

• [26] The Respondent referred to the decision of DP Millhouse in Rallis v Clinical Laboratories Pty Ltd and Ors[6], and the decision of Commissioner Yilmaz in Watson v Crestkey Pty Limited[7] where the Commission has refused to extend time notwithstanding applicants filing in-time applications, and later pursuing different applications out of time.

• [27] The fact of the Applicant having taken action to dispute his dismissal is a factor which would favour the granting of an extension of time.

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

• [28] The Respondent will not suffer any prejudice by granting an extension of time and this is a neutral consideration.

• [29] The initial primary argument foreshadowed in the first application was that the Applicant was unfairly dismissed on account of his having poor mental health at the time of the dismissal. The second application filed six days out of time also referred primarily to his mental health condition being the basis to argue the Respondent breached the general protections provisions. The third application introduced a new ground in relation to discrimination on the basis of race.

• [30] The Respondent submits the merits of the matter are poor. The Respondent provided with its case each of the allegations in the allegations letter, the show cause letter, the response to the show cause letter, and the termination letter.

• [31] The Applicant contends in this matter, the third application filed, that he was discriminated against on the basis of race, national extraction or social origin, and physical or mental disability and his conduct was the result of his mental disability and unfairness in the disciplinary process.

• [32] The Respondent referred to the Full Court of the Federal Court decision in Western Union Business Solutions (Australia) Pty Ltd v Robinson[8] and the decision in Dahler v Australian Capital Territory (No 2)[9]. The Respondent submitted that given the reasons for termination were clearly spelt out in the letter of termination, being misconduct that was in breach of the Respondent's policies, and that complaints about procedural fairness are irrelevant in general protections cases, the Applicant faces insurmountable hurdles.

• [33] The Respondent refers to the termination letter evidencing a pattern of behaviour occurring over many months, and the show cause response indicates there was very little in dispute about the fact that the Applicant engaged in the conduct.

• [34] On review of the material it would appear at this stage, without the benefit of evidence, that given the breadth of issues in relation to conduct relied on by the Respondent, that do not appear to be in contest by reference to the Applicant's show cause response before termination, that the Applicant's prospects of succeeding in the general protections claim are poor. This weighs against granting an extension of time.

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

• [35] There were no submissions or evidence addressing this consideration and on that basis I am satisfied there are no other persons in a like position and this is a neutral consideration.

• [36] I have considered each of the matters that I am required to consider in section 366(2) and having weighed each of those matters I am not satisfied that there are exceptional circumstances warranting an extension of time. On that basis I have determined to dismiss the application. An order will be issued separately and concurrently with this decision to that effect.

[2] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[5] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].

[6] [2024] FWC 2739.

[7] 2024] FWC 2087.

[8] [2019] FCAFC 181.

[9] [2015] FCCA 845; (2015) 296 FLR 363.

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