s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] Mrs Amiya Amiya made a general protections application involving dismissal pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) on 9 August 2024 in respect of the dismissal from her employment with the respondent, Sorbent Paper Company Pty Ltd.

• [2] Section 365(1) of the Act prescribes that a general protections application involving dismissal must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). The Form F8 application records that Ms Amiya's dismissal took effect on 18 July 2024.[1] It follows that on Mrs Amiya's case, the application was filed one day outside the 21-day statutory timeframe.

• [3] The respondent initially objected to the application on the basis that Mrs Amiya was not dismissed, however it withdrew this objection at the hearing. However, the respondent contends that Ms Amiya's dismissal took effect on 17 July 2024. On either case, whether the dismissal took effect on 17 July or 18 July 2024, the application was filed out of time and Mrs Amiya requires an extension of time if her application is to proceed.

• [4] For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

• [5] On Monday 15 July 2024, Mrs Amiya resigned from her employment as Office and HR Administrator with the respondent, a role she had performed for approximately five months.[2] Ms Amiya advised that her final day of employment would be Friday 19 July 2024.[3] The respondent accepted Mrs Amiya's resignation. Mrs Amiya attended work between 15 July and 17 July 2024.

• [6] Mrs Amiya says that on 16 July 2024, her home was broken into and on 17 July 2024, there was a secondary break in at the property.[4] Mrs Amiya says that she subsequently sustained an injury while fixing the fence on the morning of 18 July 2024.

• [7] On 18 July 2024, Mrs Amiya sent an email to the respondent's Head of Human Resources, Ms Erika Huete Zamora, advising that she would seek medical attention for her injury and would take personal leave that day. In an email response, Ms Zamora acknowledged the matters raised by Mrs Amiya, noting they sounded "serious," advised her to look after herself, and requested the respondent's Human Resources Business Partner to "terminate" Mrs Amiya's employment "with immediate effect with her last working day 17 July 2024."[5] Mrs Amiya contends that her employment terminated with effect on 18 July 2024 upon receipt of this email from Ms Zamora.

• [8] On 4 August 2024, Mrs Amiya made an application for an unfair dismissal remedy in the Commission pursuant to s 394 of the Act.[6] This application was made within the 21-day period after the dismissal took effect.

• [9] On 8 August 2024, Mrs Amiya received correspondence from the Commission which relevantly advised Mrs Amiya that the information provided in the unfair dismissal application indicated that she may not have met the minimum employment period and sought additional information from Mrs Amiya by 22 August 2024.[7]

• [10] At 12:40 pm on 8 August 2024, in response to the Commission's correspondence, Mrs Amiya sent an email to the Commission in which she requested the withdrawal of her unfair dismissal application so that she could "fill in the correct form as soon as possible."[8] Mrs Amiya's correspondence had the effect of bringing her unfair dismissal application to an end.

• [11] Mrs Amiya filed her Form F8 general protections application involving dismissal at 12:03 am on 9 August 2024.[9]

• [12] I accept Ms Amiya's contention that the effective date of her dismissal was 18 July 2024, being the date that she was advised that her employment was terminated with "immediate effect." Having regard to the effective dismissal date, for the application to have been within time it must have been filed by midnight on 8 August 2024. The application was filed at 12:03 am on 9 August 2024. It is not in dispute that it was therefore made one day outside the statutory timeframe for lodgement, albeit by only minutes.

• [13] The Commission has the power pursuant to s 366(2) of the Act to extend the time within which a general protections application involving dismissal can be made only if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[10] 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. 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.[11]

• [14] Under s 366(2) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

• [15] I consider these matters in the analysis that follows.

Reason for the delay: s 366(2)(a)

• [16] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[12] or reasonable[13] explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[14]

• [17] The period of the delay to be considered is the period commencing immediately after the 21-day timeframe for lodging the application has expired.[15] However, the circumstances from the time the dismissal took effect must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[16]

• [18] In her written submissions in support of an extension of time, Mrs Amiya submits that she acted promptly after withdrawing the unfair dismissal application, but the submission was delayed a few minutes after the deadline by reason of the following matters:[17]

• (1) Mrs Amiya submits that she contacted "Fair Work" (which Ms Amiya clarified to be the Fair Work Ombudsman) on 22 July 2024 as well as "Health and Safety Body, Victorian Equal Opportunity, and Job Watch," but these organisations did not provide clear guidance. Mrs Amiya says that it was only on 1 August 2024 that she received "correct guidance" from JobWatch, directing her to the Commission.[18]

(2) Following this guidance, Mrs Amiya filed the unfair dismissal application on 4 August 2024 but withdrew this application on 8 August 2024 upon advice Mrs Amiya says she received from the Commission that the form she had submitted was "incorrect" such that Mrs Amiya "began resubmitting the correct one."

(3) The "correct form" was submitted on 9 August 2024 at 12:03 am. Mrs Amiya submits that the delay was due to the "lengthy form, the need to re-gather all documents and the fact that Amiya's family was engaged in other personal matters, including job-hunting interviews, which caused unavoidable delays." Mrs Amiya submits that the effort to meet the deadline were genuine and the submission was only a few minutes late.

• [19] During the hearing, Mrs Amiya gave evidence that she knew she had 21-days within which to make an application to the Commission. Mrs Amiya said that she filed the "wrong" application. Mrs Amiya says that following the withdrawal of her unfair dismissal application at 12:40 pm on 8 August 2024, she did not attend to the preparation of her general protections application immediately as she had job interviews to attend during the afternoon and when she returned home, she cared for her parents until later in the evening.

• [20] Mrs Amiya further says that the termination event had an effect on her mental health, and that she felt worried and was in physical pain. Mrs Amiya relies upon these additional matters to explain the delay.

• [21] I am not satisfied that Mrs Amiya has provided an acceptable or reasonable explanation for the delay. I accept that Mrs Amiya did not anticipate being dismissed by the respondent on 18 July 2024, in circumstances where her employment was to conclude the following day in light of her own resignation. However, there is no evidence before the Commission from Ms Amiya's treating medical practitioner explaining the nature of Ms Amiya's health condition or confirming that Mrs Amiya was unable to lodge her general protections application within the statutory timeframe on account of her mental health or physical pain, as contended. On the contrary, the material before the Commission discloses that Mrs Amiya's health-related concerns arising from the dismissal did not prevent her from lodging an unfair dismissal application on 4 August 2024, within the 21-day timeframe. The medical evidence before the Commission is otherwise limited to a medical certificate explaining Ms Amiya's incapacity for a single day's absence from work on the date of her dismissal, 18 July 2024.[19]

• [22] I am not persuaded by Mrs Amiya's contention that she filed the "wrong" application when she lodged her unfair dismissal application on 4 August 2024. The evidence supports a conclusion that Mrs Amiya intended to pursue an unfair dismissal application against the respondent, with the benefit of considering information she received from JobWatch on 1 August 2024. This is consistent with Mrs Amiya's advice to Ms Zamora that her dismissal was an "unfair termination" and "this unfair dismissal has caused me trauma and anxiety."[20] Mrs Amiya withdrew her unfair dismissal application only upon advice from the Commission that she was not eligible to make the application given that she had been employed by the respondent for a period of less than six months. I am satisfied and I find that Mrs Amiya chose to first make an application seeking an unfair dismissal remedy. This choice does not provide an acceptable reason for the delay in lodging the general protections application.

• [23] Despite Mrs Amiya giving evidence that she knew she had 21-days within which to make an application to the Commission, Mrs Amiya did not prioritise the preparation of her general protections application immediately upon withdrawal of her unfair dismissal application, which occurred on the 21st day after the dismissal. Mrs Amiya was unable to provide any relevant details about the job interviews she says that she attended on the afternoon of 8 August 2024. Mrs Amiya's efforts to care for her parents during the evening of 8 August 2024, while commendable, does not of itself provide a reasonable explanation for the delay. I regard this aspect of the delay to be significant in the context of Mrs Amiya's application, and do not consider that Mrs Amiya has provided a credible reason to explain it, despite being given the opportunity to do so in her oral evidence.

• [24] Mrs Amiya submits that the delay was also occasioned by the lengthy application form and the need to re-gather all documents. This is not a matter that I consider provides a credible explanation for the delay. This is particularly so in circumstances where there is little material difference between the content of Mrs Amiya's three-page general protections application and the contentions first advanced by Mrs Amiya in her (discontinued) unfair dismissal application. Consistent with my view at [22] of this decision, in the absence of supporting medical evidence, I do not accept Mrs Amiya's contention that the trauma of revisiting the circumstances of her dismissal while completing the application provides an acceptable explanation for the delay.

• [25] For the reasons given, I do not find that any of the matters relied upon by Mrs Amiya as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the grant of an extension of time.

Action taken by the person to dispute the dismissal: s 366(2)(b)

• [26] Where an applicant takes action to dispute a dismissal (other than by lodging the relevant application), it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[21]

• [27] The evidence discloses that Mrs Amiya wrote to Ms Zamora and the respondent's Chief Executive Officer on 18 July 2024 to raise concerns about her dismissal.[22] This correspondence refers specifically to making an application in the Commission. Thereafter, Mrs Amiya took steps to contest her dismissal by commencing the unfair dismissal application. To the extent that the consideration in s 366(2)(b) requires the Commission to take into account any action (other than the relevant application under consideration before me), I am satisfied that Mrs Amiya's earlier proceedings - while ultimately discontinued - and her 18 July 2024 email placed the respondent on notice that the dismissal was actively challenged. This weighs in favour of the grant of an extension of time.

• [28] I cannot identify any prejudice that would accrue to the respondent were an extension of time to be granted in Mrs Amiya's favour. The mere absence of prejudice is not in itself a factor that would point in favour of the grant of an extension of time. I consider this to be a neutral factor.

• [29] For the consideration in s 366(2)(d) to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[23] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mrs Amiya's application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[24]

• [30] In her general protections application Mrs Amiya contends, in summary, that her employment was terminated during her notice period either because of an exercise of workplace rights, because of her race, or because of her temporary absence from work. Further, Mrs Amiya contends that the respondent unlawfully required her to repay a day's worth of wages which she did under duress.[25]

• [31] The respondent submits that the merits of Mrs Amiya's application are weak. It says that even if Mrs Amiya could establish that her dismissal was because of a proscribed reason (which the respondent denies), the factual circumstances are such that no meaningful remedy would be awarded. This is because Mrs Amiya's employment would have otherwise come to an end on 19 July 2024 as planned, following Mrs Amiya's resignation.

• [32] The parties hold substantially different views as to the matters that preceded the dismissal. The allegations of adverse action turn on contested points of fact, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a view about these matters. However, I observe that Mrs Amiya would need to lead evidence in support of her position that there is a relevant connection between the matters addressed in her 18 July 2024 email to Ms Zamora, and Ms Zamora's decision to terminate her employment, noting that Ms Zamora rejects that her decision was for the reasons alleged.[26] In the circumstances, I regard the merits of Mrs Amiya's substantive general protections application to be a neutral factor in my assessment of whether to grant an extension of time.

Fairness as between Mrs Amiya and other persons in a similar position: s 366(2)(e)

• [33] Applications to extend time generally turn on their own facts. Neither party has brought to my attention any matters of fairness relevant to this consideration. Accordingly, this factor is neutral in my consideration.

• [34] The statutory time limit that applies to the exercise of a person's right to bring a general protections application involving dismissal reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 366(2) of the Act establishes a high hurdle for an applicant for an extension of time.[27] Whether an application is lodged minutes outside the statutory time limit or more, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.[28]

• [35] I have taken into account the fact that Mrs Amiya took steps to dispute her dismissal. However, Mrs Amiya has not provided an acceptable or reasonable explanation for the delay in lodging the application before me, including - significantly, in my view - in relation to the critical period between the discontinuance of her unfair dismissal application and the lodgement of the current application in circumstances where she knew that there was a 21-day statutory timeframe for lodgement. This weighs heavily against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together.

• [36] As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Mrs Amiya's application may be made is not enlivened.

• [37] Mrs Amiya's general protections application is dismissed.

A Mollison of Lander & Rogers for the respondent.

[1] Exhibit 1 (Digital Court Book (DCB)) 3 at [1.4]

[10] [2011] FWAFB 975, 203 IR 1

[12] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9]

[13] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16]

[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39]

[15] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]

[16] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]

[21] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

[23] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71]

[24] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14]

[27] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21]

[28] See Cem Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479, upheld on appeal in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

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