s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 13 November 2024, Ms Chun Man Lo (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by BSK Management Pty Ltd (the Respondent). The Applicant commenced her employment with the Respondent on 23 September 2024. The Applicant claimed she was notified of her dismissal on 21 October 2024 and confirmed on her Form F8 that the dismissal took effect on that same day.

• [2] General Protection applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. An application for a remedy should have been lodged by 11 November 2024. The Application was therefore lodged outside of the time prescribed and was lodged 2 days after the last day on which such an application could have been made.

• [3] On 5 December 2024, the matter was allocated to my Chambers and on that same day Directions were issued to determine the programming of the matter. The Directions were:

[1] This matter is listed for Hearing before Deputy President Cross at 10:00AM on 15 January 2025 to hear and determine the questions of the effective date of dismissal and whether to extend the time for filing (the Jurisdictional Issue).

[2] By no later than 4:00PM on 17 December 2024 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:

• The reason(s) for the delay;
• Whether the Applicant first became aware of the dismissal after it had taken effect;
• Any action taken to dispute the dismissal;
• If there is any prejudice to the employer (including prejudice caused by the delay);
• The merits of the application; and
• Fairness as between the Applicant and any other persons in a similar position.

[3] By no later than 4:00PM on 3 January 2025 the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.

[4] By no later than 4:00PM on 10 January 2025 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.

Important note: Failure to comply with these Directions or to attend the Conference/Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

• [4] The Applicant filed two Statements and some accompanying annexures. The Respondent filed an outline of submissions with annexures

• [5] The Hearing took place on 15 January 2025.

• [6] The Applicant was terminated on 21 October 2024. She was advised of her termination verbally via phone call on 21 October 2024. The Applicant was also provided a written termination letter via email later that day. The termination letter relevantly stated:

Your probation period with us at Bridge St Kids Early Learning Centre was due to end on 23rd of March 2025. We confirm that we have decided not to continue your employment beyond your probationary period. As a result, your employment will end on the 21 of October 2024.

Your employment will cease immediately. Based on your length of service, your notice period is 1 week. However, you will receive payment in lieu of your entitlement to notice of termination. Please note that in order for your final payment to be processed, all company property listed below must be returned to the employer by the agreed date.

You will also be paid your accrued entitlements, including 17.5% leave loading on any annual leave accruals, and any outstanding pay up to and including your last day of employment. This includes superannuation. If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.

You are required to return all of the Employer's property to Olympia Shenton-Kaleido at 10:00am Wednesday the 23rd of October at the Blakehurst centre, at 12 Resthaven Road, South Hurstville, NSW, 2221, including:

Any other materials, records or other information or documents in your possession or under your control (including confidential information or intellectual property) which are the property of the Employer

• [7] On 5 November 2024, 15 days after the termination the Applicant filed a Form F2 Application for an Unfair Dismissal remedy.

• [8] On 12 November 2024, a case manager from the Commission emailed the Applicant advising, in part:

We have now started a case at the Fair Work Commission. Your case number is U2024/13333.

Our staff will check your application to make sure it is complete. We will write to you again soon with information about what happens next.

On 13 November 2024, 8 days after initially lodging the Unfair Dismissal Application, a case manager from the Commission phoned the Applicant and advised that the Applicant was unable to pursue an unfair dismissal application as she did not meet the minimum employment period.

• [9] The Applicant then withdrew her unfair dismissal claim and lodged the Application on 13 November 2024 at 5:26pm, being 23 days after the termination.

• [10] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [11] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

• [12] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

• [13] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 stated at [30]:

"Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances."

• [14] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 noted at [39]:

"The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each."

• [15] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.

• [16] The Applicant stated the following with respect to the reason for the delay:

I initially lodged my claim within the 21-day timeframe following my dismissal on 21 October 2024. I submitted form F2 on 5 November 2024; however, a Fair Work Commission officer informed me that this form was inappropriate for my situation, as it only applies to employees with over six months of service. Following their guidance, I promptly submitted the correct form, F8, on 13 November 2024. My actions reflect my commitment to adhering to the process, and the delay was purely procedural, not intentional.

• [17] The Respondent submitted the following in response to this contention:

The Applicant has stated she was unaware of the 6-month employment length requirement for lodging an unfair dismissal application, and that she was only made aware of this by the Fair Work Commission once she submitted the unfair dismissal application on 5 November 2024. However, the Applicant still did not submit her general protections application until over a week later, on 13 November 2024. Further, all necessary information regarding eligibility for unfair dismissal and/or general protections claims is readily available on the Fair Work Commission website and can also be accessed via phone call or through email with the Commission.

The Respondent contends that being unaware of the correct application to lodge is not an exceptional circumstance, just as lodging in the wrong jurisdiction is not an exceptional circumstance. The Commission has previously held that mere inadvertence or accident is not sufficient grounds to warrant an exceptional circumstance for an extension of time.

• [18] The Commissions records indicate that the Applicant lodged an unfair dismissal application well within time on 5 November 2024. On 12 November 2024 the Applicant was advised by email that the Commission's staff would check her application to make sure it was complete. She was then advised the following dayby telephone that she did not meet the minimum service. The Commission waited eight days before finally informing the Applicant of this, resulting in a further delay for her.

• [19] I note that Senior Deputy President O'Callaghan in Mr Gery Lane v Kangaroo Island Dive & Adventures Pty Ltd[1] granted an extension of time in circumstances where the applicant in that case had made an application within the statutory timeframe using the incorrect application form, with that error only detected seven days after the initial lodgement.

• [20] On balance, I consider the reasons for the delay relied upon by Ms Lo point to the existence of exceptional circumstances. Once she became aware of lodging the incorrect application, she immediately amended her application and lodged the Application. Had she been made aware of this upon lodgement, it is likely she would have made her general protections application in time.

• [21] The Respondent submitted that the Applicant did not take immediate action to contest her dismissal as claimed. The Respondent asserted that the Applicant's initial application was lodged 15 days after her termination took effect, with her second application lodged a further 8 days after that.

• [22] As mentioned above, Ms Lo lodged her initial Unfair Dismissal application with the Commission on 5 November 2024. In other words, Ms Lo did take action to dispute her dismissal shortly after her employment ceased.

• [23] In all the circumstances, I find that the Applicant took action with the Respondent to dispute the dismissal after it occurred. I consider this factor weighs slightly in favour of the Applicant.

• [24] A delay of two days would not likely prejudice the employer, and I note the Respondent does not submit there has been prejudice. In the circumstances, I consider this consideration to be neutral.

• [25] This is a general protections claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

• [26] In the matter of Kornicki v Telstra-Network Technology Group[2] a predecessor of the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive 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."[3]

• [27] I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.

Fairness as between the Applicant and other persons in a similar position

• [28] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. However, cases of this kind will generally turn on their own facts.

• [29] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [30] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group[4] (Nulty) in the following way:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [31] Having considered all of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). The key considerations in that regard were that Ms Lo filed her initial Unfair Dismissal application, well within the 21-day timeframe, and only due to the eight day delay form filing by the Commission was unable to file the Application until 2 days after the timeframe ended. Upon becoming aware of the error, the Applicant acted promptly to lodge her s.365 application when advised by the Commission of the error concerning her initial unfair dismissal application.

• [32] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight, was the presence of an acceptable reason for delay, and to a lesser extent the fact that the Applicant took prompt steps to challenge her dismissal. Both factors weigh in favour of a conclusion there are exceptional circumstances. None of the relevant factors weigh against such a conclusion.

• [33] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant and the Respondent, I am satisfied that there are exceptional circumstances.

• [34] As there are exceptional circumstances, I consider there is a basis for me to exercise my discretion to allow an extension of time. I grant an extension of time under s.366(2).

• [35] The timeframe for lodging the application is extended to 13 November 2024. The application will now be listed for a conference.

[1] [2010] FWA 3939.

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[4] [2011] FWAFB 975.

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