Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - request for extension of time to file application outside of 21-day time period - applicant alleges that he telephoned Fair Work Commission Helpline multiple times to obtain information and advice, but his calls were not answered or otherwise returned - overview of Fair Work Commission's information services - Fair Work Commission does not provide advice - no exceptional circumstances - application dismissed.

• [1] This Decision was originally made on an ex-tempore basis on transcript. In publishing these Reasons, I have taken the opportunity to revise same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at 229-230, including the authorities cited therein), and the New South Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).

• [2] On 19 January 2022, Mr Nathan Hodges (Applicant) filed a general protections involving dismissal application (under s.365 of the Fair Work Act 2009 (Act)) with the Fair Work Commission (Commission). The Applicant alleges that he was dismissed by GPS (Global Product Search) (Respondent) in contravention of Part 3-1 of the Act (because he made inquiries with his employer (the Respondent) concerning workplace training (ss. 340(1) 341(1)(c)), and for taking a "temporary absence/s" (s.352)).

• [3] Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow (subject to satisfaction as to the existence of "exceptional circumstances", as required by s.366(2) of the Act).

• [4] The parties are not in dispute that the Applicant was "dismissed" on 1 December 2021, and was notified of his dismissal on that date.

• [5] The Applicant should have filed his Application on or before 22 December 2021. Given that the Applicant filed his Application on 19 January 2022, it has been filed 28-days (four weeks) past the 21-day statutory time limit (or seven weeks after the date of the Applicant's dismissal).

• [6] At the hearing on 5 April 2022, the Applicant appeared for himself, and Ms Nicole Thompson, National IR Manager, appeared for the Respondent.

• [7] Section 366(2) of the Act reads:

(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."

• [8] Granting an extension of time requires me to be "satisfied" that there are exceptional circumstances. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term "exceptional circumstances", has stated:

"[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.

[14] Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance..."[1]

[15] A finding that there are "exceptional circumstances", taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when "exceptional circumstances" are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended."[2]

• [9] In Mohammed Ayub v NSW Trains[3], a Full Bench of this Commission described "exceptional circumstances" (in the context of an out of time application) as being a "very high bar" and "strictly limited".

• [10] The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[4]:

"[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

[19] To take a matter into account means that the matter is a 'relevant consideration' in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

'To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant'.

[38] 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.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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."[5]

• [11] On the issue of reason for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group[7] (Bianco Mamo), as follows:

"[11] The test invariably applied in such matters is whether an applicant has a 'credible or reasonable' explanation for the delay. The reasonableness of an applicant's explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances."

• [12] Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[8] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[9]

• [13] The Applicant's reasons for delay, as set out in his Application, are that he spent five days or more calling (or attempting to contact) the Commission, and left numerous telephone messages (with the Commission) for someone to call him back to discuss his circumstances, including the type of application he should make to challenge his dismissal.[10]

• [14] At the hearing, when making oral submissions, the Applicant significantly expanded upon his assertions in relation to the number of telephone calls he made to the Commission that went unanswered or were not responded to, and asserted that he in fact called the Commission numerous times during the whole of the seven-week period from the date of his dismissal (on 1 December 2021), to the date he filed his Application (on 19 January 2022). In this regard, I refer to the following transcript exchanges:

"MR HODGES: Yes, well, I would like to have an extension, basically, because when I was trying to find out information on where to go to, what to file, who to file it with, I was calling up Fair Work Commission quite a number of times. I think it took me nearly a month and a half before someone actually called me back, because I was calling up different people and they were putting me through to different departments and no one was getting back to me in regards to where I could go or what to fill out or who to speak to in regards to doing all this.

So, you know, by the time I actually got everything that I needed, I did have, I did go past the timeline where I had to have it submitted by. But yes, like I said, if I had have got someone, you know, return my call within that timeline, I would have had it submitted before then.

THE DEPUTY PRESIDENT: But you're saying that no one contacted you between the 1 December and 19 January?

"THE DEPUTY PRESIDENT: I just can't understand how no one would take your call between 1 December and 19 January.

MR HODGES: Me either mate, like, you know, I'm a bit dumb-founded by it myself. It was extremely frustrating to say the least.

THE DEPUTY PRESIDENT: But again, the Commission is not there to assist parties to file applications or tell them what to do. I mean, it's a general information line, and information service.

MR HODGES: I understand that, but when I was calling up to ask someone in regards to the correct information on where to go, they would say leave your number and I would do that, and I'd hear nothing back. No calls were returned.

THE DEPUTY PRESIDENT: All right. Okay, anything further?

THE DEPUTY PRESIDENT: Thank you. I'll move to make my decision."[12]

• [15] I do not accept that the reasons advanced by the Applicant, for the 28-day (four week) delay in filing his Application, are either credible or reasonable. In this regard, I take notice of the following:[13]

a) the Commission is an independent tribunal. It's information services (via the telephone, or over the internet) provide knowledge, not advice. To be clear, the Commission does not provide legal advice, nor does it recommend any particular lawyer/s or paid agent/s;

b) the Commission can be contacted via email, web-page enquiry, or via a telephone helpline, 1300 799 675 (Telephone Helpline) (the latter between 9am and 5pm Monday to Friday, excluding public holidays);

1. relevantly, the Commission's website provides an extensive range of comprehensive plain English information to assist persons to:

• find and/or obtain their own independent advice or representation (including free legal advice or representation from the Commission's Workplace Advice Service and/or other community legal services across Australia);

• make their own determination as to the type of application/s they may wish to make to dispute their dismissal under the Act;

d) the information contained on the Commission's website is available to anyone who cares to access same via a mobile telephone or computer (i.e. absent any need to telephone the Commission). The Commission's website is able to be located via a simple Google keyword search;

• e) the Commission's Telephone Helpline does not enable one to leave a message. It does, however, record telephone numbers that call the Telephone Helpline (including hang-ups). Any and all discussions or other interactions had with Commission staff over the Telephone Helpline are recorded. Such recordings can be accessed by Commission members and staff (including for the purposes of proceedings before the Commission). The Commission's Telephone Helpline exists to provide information; not advice. The Commission's website states that calls to its Telephone Helpline are answered within 10 minutes (ordinarily, within less than 5 minutes);[14]

f) the Commission has a robust and expeditious complaints process (set out on its website). Any issue as to communication with the Commission can be agitated pursuant to same;

• g) finally, and perhaps most importantly, even putting aside what has been outlined in (a) to (f) above, there is no reason that an individual ought to be waiting to hear back from the Commission prior to filing a general protections involving dismissal application (or an unfair dismissal application). The Act provides that such applications are to be filed within 21-days of a dismissal, and ignorance of this 21-day time does not (in and of itself) give rise to an exceptional circumstance.[15]

• [16] The substantial information and resources that the Commission makes available or otherwise provides to the public (over the internet, and over the telephone) point directly against any suggestion that information to assist the Applicant (over the internet, and/or over the telephone) was unavailable to him during the seven-week period between 1 December 2021 and 19 January 2022. Further, the assertions made by the Applicant at the hearing, as to him leaving multiple voicemail messages on the Telephone Helpline over a seven-week period, and having his calls not returned:

(a) were not been particularised by the Applicant at the hearing (e.g. by reference to the Applicant's own telephone records identifying the specific times and dates that he called the Commission, the duration of the call/s, what telephone number/s he used to call the Commission, and/or whether the Applicant anonymised his telephone number/s in making such calls); and

(b) in any event, simply cannot be correct (i.e. there is no voicemail message service attached to the Commission's Telephone Helpline).

• [17] In short, I find that the Applicant's reasons for delay in this matter do not weigh in favour of a finding of exceptional circumstances. Even if the Applicant is confused, and he was in fact calling and leaving messages with the Fair Work Ombudsman (which is a separate government agency to the Commission), the outcome does not change. Calling (mistakenly or otherwise) an incorrect government agency does not give rise to exceptional circumstances, especially given the wealth of information readily available and accessible on the Commission's website. For the purposes of this decision, I treat the Applicant's reasons for delay as weighing against any finding as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute his dismissal[16]

• [18] Whilst the Applicant did not rely upon evidence in respect of this criterion, I accept the Applicant's submissions during the hearing that, at or around the time of his dismissal, he attempted to speak to the Respondent's office staff and that in doing so, he was told that they were not to speak to him and that he was only able to speak to an individual by the name of "Warren".

• [19] However, beyond the foregoing, there is no evidence of any indication by the Applicant to the Respondent that he intended to dispute his dismissal (i.e. prior to filing his Application with the Commission). I therefore do not consider that this criterion as one that weighs in favour of a finding as to the existence of exceptional circumstances. I treat it as a neutral consideration.

• [20] The next criterion to be considered is any prejudice to the employer, including any prejudice caused by the delay. I note that the Respondent has not raised with the Commission any issue of prejudice.

• [21] The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor automatically weighing in favour of a finding as to the existence of exceptional circumstances.[18] I therefore treat this criterion as a neutral consideration.

• [22] The principles stated Kyvelos v Champion Socks Pty Ltd[20] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:

"In considering whether to accept an application which has been lodged outside the time ... the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar ... 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. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application ... In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case ...".[21]

• [23] In Kornicki v Telstra-Network Technology Group,[22] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under s.170CE(8) of the (repealed) Workplace Relations Act 1996. In that case, the Full Bench 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."[23]

• [24] In his Application, the Applicant relevantly makes the following allegations:

(a) during his employment with the Respondent, the Applicant had a "workplace right" to make a complaint or inquiry in relation to his employment;[24]

(b) during his employment with the Respondent, the Applicant exercised his workplace right by making a complaint or inquiry in relation to his employment about training;[25]

(c) "adverse action", in the form of "dismissal", was taken against the Applicant by the Respondent;[26]

(d) the adverse action that was taken against the Applicant by the Respondent was taken 'because' he exercised his workplace right to make a complaint or inquiry in relation to his employment;

(e) in view of (a) to (d) above, the Respondent has contravened s.340 of the Act; and

(f) further or in the alternative to (a) to (e) above, the Applicant was absent from work for short periods of time due to illness, injury or carer's responsibilities, and was terminated 'because' he took such "temporary absences" from work.[27]

• [25] For its part, the Respondent denies the foregoing allegations made by the Applicant, and says that it was entitled to dismiss him during his probation or qualifying period of employment (i.e. the Respondent determined that, as at 1 December 2022, it no longer wanted to continue its relationship with the Applicant any further - for good reason, for bad reason, or for no reason at all, albeit, not for a prohibited reason).

• [26] The merits of the Applicant's case, by reference to his allegations, and the Respondent's counter assertions, were not fully tested before me (i.e. it is not the role of the Commission to "embark [upon] a detailed consideration of the substantive case" for the purpose of determining whether to grant an extension of time to an applicant to lodge his or her application).[28] That said, on the basis of the evidence that was before me at the hearing, it is apparent that:

(a) whilst the Respondent is correct to state (essentially as a matter of contract) that it was entitled to dismiss the Applicant during his qualifying or probation period, the Respondent has made no effort to engage with the question of the real or operative reason/s for the Applicant's dismissal (i.e. so as to directly rebut the Applicant's allegations that an operative reason for his dismissal was a prohibited reason under Part 3-1 of the Act);

(b) it does not appear to be in dispute that the Applicant did make complaints or inquiries in relation to his employment about training, and that he did take temporary absences from work during his short period of employment with the Respondent due to illness, injury or carer's responsibilities; and

(c) the core issue, whether the Applicant was dismissed 'because' of a prohibited reason (under Part 3-1 of the Act) could not be resolved on the available evidence.

• [27] All in all, even taking the Applicant's case at its highest, given the very limited evidence before me, and the dispute issues between the parties which were not resolved at the hearing, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits neither for nor against any finding as to the existence of exceptional circumstances in this case.

Fairness as between the Applicant and other persons in a similar position[29]

• [28] I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[30] Given that neither party made relevant submissions on this issue, and I am not aware of any cases where there have been the same, or similar, characteristics and/or circumstances, I treat this criterion as a neutral consideration.

• [29] I have taken into account the criteria set out under s.366(2)(a)-(e) of the Act. In this regard:

(a) none of the requisite criteria, considered individually, point towards the existence of exceptional circumstances; and

(b) considering the requisite criteria on a collective basis, there is no basis for me to find that exceptional circumstances exist (i.e. one criteria weighs against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[31]

• [30] On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances warranting the grant of an extension of time for the Applicant to file his Application.[32] In view of this finding, there is no basis at law for me to grant an extension of time. I therefore decline the Applicant's request for an extension of time. The Application filed by the Applicant on 19 January 2022 is dismissed, and an Order to this effect will be issued contemporaneously with this decision.

Mr Nathan Hodges (the Applicant), appeared for himself.

Ms Nicole Thompson, National IR Manager, appeared for the Respondent

[1] [2011] FWAFB 975.

[3] [2016] FWCFB 5500.

[4] [2018] FWCFB 901.

[5] Ibid, at [17], [19], [38]-[39].

[6] Section 366(2)(a), Fair Work Act 2009.

[7] [2021] FWC 3903.

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39].

[10] See Form F8, at Item 1.4, and the additional material filed by the Applicant on 27 January 2022.

[11] Transcript, 5 April 2022, PN26-PN29.

[13] Note s.144(1)(b) and (2) of the Evidence Act 1995.

[14] See https://www.fwc.gov.au/about-us/contact-us

[15] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [13].

[16] Section 366(2)(b), Fair Work Act 2009.

[17] Section 366(2)(c), Fair Work Act 2009.

[18] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, at [38]).

[19] Section 366(2)(d), Fair Work Act 2009.

[20] (1995) 67 IR 298.

[22] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).

[23] Ibid. See also Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [36].

[24] Section 341(1)(c), Fair Work Act 2009.

[25] Section 340, Fair Work Act 2009.

[26] Section 342(1), (Item 1(a) of the table), Fair Work Act 2009.

[27] Section 352, Fair Work Act 2009.

[28] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd [2021] FWC 5962, at [33].

[29] Section 366(2)(e), Fair Work Act 2009.

[30] Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].

[31] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.

[32] Again noting the definition of "exceptional circumstances" set out in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [13].

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