s.365 - Application to deal with contraventions involving dismissal

Application to deal with general protections contraventions involving dismissal - jurisdictional objection - filed out of time - extension of time not granted - application dismissed.

• [1] Ms Anitha Buntubwimana (the Applicant) made a General Protections application pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with alleged contraventions involving dismissal. The Applicant submitted that her employment was terminated by the University of Southern Queensland (the Employer/Respondent) on 4 March 2025. The Applicant commenced as a casual employee with the Respondent on 3 February 2025 and her employment was ended on 4 March 2025 when the Respondent stated that there was no further work available to offer the Applicant. The Applicant refuted this and stated that her appearance had been questioned and she argued she was dismissed on the basis of her race and skin colour. Ms Leandri Van Staden, the Senior Advisor - Workplace Relations at the University denied the allegations that the Applicant's employment had been terminated on the basis of an unlawful reason and stated that it was for a lawful reason given the contracted casual work.

• [2] The Applicant made a number of responses which the Respondent stated contained a series of changing reasons as to why she considered the Employer had contravened an attribute leading to the unlawful termination of her employment. The last issue raised by the Applicant was that those of a different skin colour were being charged more for items in the cafe. The Respondent completely denied that conduct was occurring and that there was no evidence that the Applicant's casual employment was finalised on the basis of race or skin colour. The Respondent submitted that the Applicant was employed on the basis of a casual contract with no guarantee of continuing work. The Respondent states that under the relevant Enterprise Agreement, that one hour's notice was required, and stated that this occurred on 4 March 2025 at the end of the Applicant's shift that day when she was informed that her casual employment was terminated as there was no further work available to her.

• [3] The Applicant filed her application on 22 April 2025; 49 days after the termination of employment and 28 days after the 21-day statutory time limit which occurred on 25 March 2025. Accordingly, the Applicant sought an extension of time pursuant to s.366(1)(b). This decision relates to this jurisdictional issue only regarding the required extension of time to accept the application. The relevant legislative provisions are set out below.

• [4] The Applicant was self-represented, and the Respondent was represented by representatives employed by the University; Ms Van Staden, Senior Advisor - Workplace Relations together with Ms Jacinta Forsyth, Director - Workplace Relations and Operations.

• [5] The matter was listed for a Determinative Conference on Friday, 30 May 2025 by Microsoft Teams. Directions were set for the provision of submissions prior to the Determinative Conference in relation to the jurisdictional objection. The Directions included the relevant legislation for the consideration of this matter as set out in s.366.

(1) The application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are 'exceptional circumstances', taking into account:

(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."

• [6] And the threshold test of ''exceptional circumstances'' in relation to the reasons for the delays, must be met. The definition, as set out below was provided to parties in the Directions:

"Exceptional circumstances are not regularly, routinely or normally encountered.[1] exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[2] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances."[3]

Extension of Time - s.366

• [7] In order for the jurisdiction to be established for the Commission to hear the s.365 application, it is necessary for the Applicant to obtain an extension of time. In assessing an extension of time, pursuant to s.366 (2) for the Commission to allow for a further period of time, to accommodate the delay with filing, the Commission must be satisfied that 'exceptional circumstances' exist, taking into account the criteria in s.366 (2):

(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."

• [8] 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.[4] The Full Bench observed that it will come down to a consideration of whether, given the 'exceptional circumstances' found, it is fair and equitable that time should be extended.

• [9] The Act does not define 'exceptional circumstances' per se, but guidance can be taken from previous decisions. In the decision of 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.[5] '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.[6]

• [10] In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (Stogiannidis),[7] a Full Bench of the Fair Work Commission 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"[8]

Summary of Parties' Submissions and Consideration

• [11] The following statutory criteria are to be considered in the application for the extension of time. The Commission may allow a further period of time if the Commission is satisfied that there are 'exceptional circumstances'; taking into account the following criteria:

• [12] The Applicant was immediately made aware of the dismissal on the day that it occurred. However, the Applicant delayed filing her application, waiting for an 'outcome' of a discussion that was held on 18 March 2025 where the Employer had stated they would take the necessary steps to address the Applicant's concerns. The Applicant anticipated from the wording of the Employer's representative that an outcome would be achieved and told to her. The Respondent's representative denied this. At the time of having that discussion, the Employer's representative indicated that they did not raise any anticipated mediation or outcome. Therefore, on the date of that discussion being 18 March 2025, had the Applicant filed on that date she still would have been in the 21-day timeframe.

• [13] The Applicant stated that she waited on the outcome and then after a further period of time she realised that no outcome in relation to her concerns was going to be provided; then she filed her application on 22 April 2025 this being 49 days since the date of termination and 28 days after the discussion had occurred.

• [14] The Applicant had been able to file within the 21-day time period and there was no impediment to her filing except that she anticipated an outcome from this meeting. However, she could have filed within the 21-day period with that process occurring concurrently. Instead, her application was filed a further 28 days beyond the 21-day time with no real reason advanced as to what was occurring during the period of 49 days that would have prevented the lodgement of the application other than awaiting the outcome which would not have prevented lodgement.

• [15] The Applicant had not provided adequate reasons for the period of the significant 49-day delay. This matter weighs against the Applicant being granted an extension of time.

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

• [16] The Respondent stated that the Applicant had not taken any action to dispute the dismissal or to follow up the Employer after the meeting to see if there was going to be an 'outcome' of that meeting. As above, having had that meeting the Applicant was awaiting an outcome, however the Employer stated that they had said to her there is no outcome or mechanism in relation to these matters. Still, the Applicant, having understood that she was going to receive an outcome or have her concerns addressed, did not take any action to further raise the matters with the Employer.

• [17] This matter weighs against the Applicant being granted an extension of time.

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

• [18] The Respondent's representative maintained they were at liberty to rely on the casual nature of the contract. In the circumstances with the Applicant, they stated they had been undertaking casual shifts in backfilling another employee's hours. The Applicant objected that that was the nature of the contracted hours that had been held out to her. The Respondent stated that they correctly relied on the engagement of the Applicant undertaking casual work and had given her one hour's notice as required under the relevant Enterprise Agreement.

• [19] If the Respondent had to use an alternative interpretation of engaging casuals this would prejudice the Employer's business. This matter weighs against the Applicant being granted an extension of time.

• [20] The parties had completely different views of the events that had occurred. The Applicant submitted that in the finalisation of the employment it had been undertaken in terms of contraventions that the termination had been based on the attributes of race and skin colour, and it was argued that therefore it was unlawful. The Respondent's representatives strongly argued that none of this had occurred but that there was simply no further work to offer to the Applicant.

• [21] In the decision of Telstra-Network Technology Group v Kornicki,[9] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the Applicant to establish that the substantive application was not without merit."

• [22] However, a full examination of the roles and significant evidence on the merits of an application is rarely called at an extension of time hearing. The Applicant referred to unlawful statements to the Respondent's employee to bring out the reasons for the termination of her employment. The Respondent directly refused that any unlawful conduct or reference to attributes had been engaged with.

• [23] Only limited detail was submitted in relation to the allegations given the approach of the Commission to be cautious in relation to considering the merits of the application, premature to form a determination at this stage; this assessment of the material available weighs against the Applicant in the circumstances being granted an extension of time.

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

• [24] No particular information was presented regarding persons in a similar position where there is a delay of 49 days in total. This particular criteria for the reasons set out is considered to be neutral.

• [25] I have weighed each of the matters I am required to consider and have determined that there are no 'exceptional circumstances' in this case that justify an extension of time of 28 days being granted beyond the 21-day statutory timeframe.

• [26] In considering all of the criteria pursuant to s.366(2), the circumstances of the delay were not considered to be exceptional and the discretion to extend the time limit is therefore not exercised to grant a further period of time to accept the application.

[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388, 10 [25].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [38] ('Stogiannidis').

[4] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[9] (1997) 140 IR 1.

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