s.365 - General protections

Application for the Commission to deal with a dismissal dispute under s.365 of the Act -application filed 27 days out of time - circumstances not exceptional - extension not granted - application dismissed.

• [1] On 1 August 2024, Mr Nick Karagiannis made application to the Fair Work Commission to deal with a general protections dispute involving dismissal pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Form F8 - General protections application involving dismissal (Form F8) filed by Mr Karagiannis indicated that the application was not made within 21 calendar days after his purported dismissal took effect. As such, Mr Karagiannis is required to seek an extension of time in which to file his application. The Respondent to the application is Muvehire Pty Ltd (the Respondent). In its Form F8A - Response to a general protections application involving dismissal (Form F8A), the Respondent objected to Mr Karagiannis' application on the basis that it had been lodged out of time and because it asserts Mr Karagiannis resigned from his employment on and effective from 14 June 2024, such that he was not dismissed within the meaning of s.386 of the Act.

• [2] A determinative conference was conducted on 13 September 2024 with reference to the material filed by the parties and evidence adduced on the day from Mr Karagiannis and the Respondent's Head of Freight Management, Mr Jeremy Lablache.

• [3] Section 366 of the Act sets out the statutory requirements for the timing of an application made pursuant to s.365:

(1) An 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."

• [4] The Act allows the Commission to extend the period within which an application under s.365 of the Act must be made only if it is satisfied that there are "exceptional circumstances". Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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.[2]

• [5] The requirement that the matters outlined in s 366(2) of the Act 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 Mr Karagiannis' application for an extension of time.

• [6] Notwithstanding there is a dispute as to whether the resignation of Mr Karagiannis on 14 June 2024 constitutes a dismissal within the meaning of s.386 of the Act, I will proceed on the basis of an assumption that there was a dismissal on 14 June 2024 solely for the purposes of considering whether this application has been filed within the prescribed 21-day time limit and, if not, whether a further period should be allowed under s.366(2). The prescribed 21-day period expired at midnight on 5 July 2024 and the delay required to be considered in this case is the 27-day period that ensued until the Form F8 was lodged on 1 August 2024.

• [7] The procedural background, having regard to the records of the Commission, is as follows:

1. On 20 June 2024, Mr Karagiannis attempted to make a general protections application not involving dismissal pursuant to s.372 of the Act when he emailed a Form F8C to the Commission (First s.372 Application). This was given the matter number C2024/4317 and a reference number (QQW3H7).

1. On 27 June 2024, an email was sent from the Commission to Mr Karagiannis outlining:

a) that there was no completed application form attached to Mr Karagiannis' 20 June 2024 email, in that the application could not be opened;

b) that the Commission only starts dealing with a case after a completed application on an approved form is received;

c) a request that Mr Karagiannis send a completed application form in Microsoft Word, Portable Document Format (pdf) or Rich Text Format (rtf) format;

d) a request for the completed application form to be sent to the Commission by email, fax or by post; and

e) a caution that there were strict time limits for some application types, with some applications dismissed if they were not lodged within the requisite time limit.

1. On Friday 5 July 2024, Mr Karagiannis emailed another Form F8C to the Commission at 9.56am. For reasons which are not apparent, the Commission gave this Form F8C a different matter number, C2024/4552 (Second s.372 Application).

1. At 4.07pm on Monday 8 July 2024, a Commission file note was made stating that the First s.372 Application, C2024/4317, was discontinued by telephone. This left only the Second s.372 Application open.

1. At 4.14pm on 8 July 2024, a Commission file note was made in relation to the Second s.372 Application, which noted that, while the contact details for both Mr Karagiannis and the Respondent had been outlined, Questions 1.1, 1.2, 2.1, 3.1, 3.2 and 3.3 in the Form F8C for the Second s.372 Application were not answered and nor was it signed and dated.

1. At 4.17pm on 8 July 2024, the Commission emailed a letter to Mr Karagiannis informing him that the Form F8C had been received, that it would be checked by a Commission staff member to ensure it was complete and that the Commission would write again "soon" with information about what would happen next.

1. At 4.20pm on 8 July 2024, two attempts to contact Mr Karagiannis by telephone were made but were unsuccessful.

1. At 4.27pm on 8 July 2024, a letter was emailed to Mr Karagiannis stating the Commission had made attempts to telephone him and informing him that, inter alia, the Form F8C for the Second s.372 Application was missing information (i.e. that which was itemised in the 4.14pm file note) and needed to be signed and dated, that the required application fee was payable, that the information was required before the case could proceed and that the completed application was required within 14 days.

1. At 4.39pm on 8 July 2024, Mr Karagiannis telephoned the Commission. A Commission file note indicates that a Commission staff member informed him that the Second s.372 Application was incomplete, that the missing information was required and that, in reply, Mr Karagiannis stated that he would complete the Form F8C and send it back.

1. On Thursday 11 July 2024, Mr Karagiannis telephoned the Commission. A Commission file note outlines that Mr Karagiannis had telephoned to clarify what his matter number was because he had become confused after looking through his emails and discovering there were two matters. It is further recorded that the Commission staff member on that call stated that First s.372 Application was not active "due to app error" and enquired as to whether Mr Karagiannis was going to resubmit the Second s.372 Application with the missing information. The file note then records that Mr Karagiannis disclosed that he was dismissed on 14 June 2024, that he had been getting advice from the Fair Work Ombudsman (FWO) and Legal Aid and that he was considering lodging a dismissal application. The file note concludes by outlining that the Commission staff member explained the difference between a Form F2 and a Form F8 as well as the out of time process, and that Mr Karagiannis had replied by saying he was unsure what he would do next and that he would seek more legal advice.

1. On Wednesday 24 July 2024, the Commission made two attempts to telephone Mr Karagiannis because the application fee for the Second s.372 Application remained unpaid, and the Form F8C remained unsigned and incomplete. However, the Commission staff member was not able to speak with Mr Karagiannis or leave him a voicemail message.

1. At 2.06pm on Monday 29 July 2024, an email was sent from my Chambers to Mr Karagiannis requesting that the Form F8C be completed and the application fee paid by 3pm on 1 August 2024. This prompted an almost immediate response in the form of two telephone calls from Mr Karagiannis. The first was placed to my Chambers and went to voicemail. The second was to another member of the Commission's staff at 3.19pm, in which a number of matters were discussed. Mr Karagiannis again raised the issues he had experienced with filing attachments to his applications, his confusion in the face of the two matter numbers and his seeking of assistance from the FWO and a legal representative. Mr Karagiannis was provided with information regarding processes for filing applications, including the option of filing an application 'over the counter'. Mr Karagiannis advised that the Second s.372 Application was the incorrect application and that he would be submitting a Form F8.

1. At 3.28pm on Monday 29 July 2024, a Commission file note was made recording that the Second s.372 Application was discontinued by telephone on the basis that Mr Karagiannis was going to file a Form F8, and that he was cognisant that it would be filed out of time.

1. At 11.15am on Thursday 1 August 2024, Mr Karagiannis filed the Form F8, which commenced this C2024/5363 application.

• [8] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from 14 June 2024 until the end of the 21-day period which, for the purposes of this decision and as outlined above, ended at midnight on 5 July 2024. However, the circumstances from 14 June 2024 must be considered when assessing whether there is a credible reason for the 27-day delay in this case, or any part of that delay, beyond the 21-day period.[3]

• [9] At the determinative conference, Mr Karagiannis gave evidence that he knew at a very early stage after 14 June 2024 that there was a 21-day time limit, stating "that's why I did the form (the First s.372 Application) on the 20th." As to this, I have noted that both the First s.372 Application and the Second s.372 Application were made within the 21 day period after 14 June 2024 and, in particular, that Mr Karagiannis responded to the Commission's 27 June 2024 request by submitting a Form F8C on the 21st day, 5 July 2024. Filing the two Form F8Cs were Mr Karagiannis' mistakes and there is nothing before me that suggests that during the initial period, prior to the conversations between Mr Karagiannis and staff members of the Commission, the Commission was not justified in dealing with the applications that Mr Karagiannis had filed on their terms.

• [10] I can accept that Mr Karagiannis may not have had prior experience with general protections laws and processes or in dealing with the Commission but it is well established that ignorance of one's rights will not usually provide an acceptable explanation for a delay in lodging an application within the time prescribed[4] and unfamiliarity with the general protections laws and processes is not exceptional. Additionally, even if Mr Karagiannis was unsure about which form to use and twice made the mistake of using a Form F8C, the wording used on the Commission's website and the Form F8C is very clear.

• [11] Firstly, when accessing a Form F8C, the text on the relevant page entitled "Apply for general protections - no dismissal (Form F8C)" on the Commission's website states "Make a claim about a dispute or incident under general protections laws. In a dispute not about dismissal, you can apply up to 6 years after the incident. This is different from a general protections dismissal claim". Further, under the heading "Who can use this form", the Commission website states:

"You can apply to us if you believe you are eligible and the general protections cover you.

See About the general protections laws if you need more information.

Only use Form F8C if you are a current or potential employee or worker who:

• has not been dismissed AND
• believes someone has taken 'adverse action' against you AND
• believes the laws protect you because the reason for the adverse action is illegal ('prohibited')..."

• [12] Secondly, on the cover page of the Form F8C, the following text appears:

General protections application not involving dismissal

About general protections applications not involving dismissal

The general protections provisions of the Fair Work Act 2009 aim to protect workplace rights and freedom of association and to provide protection from workplace discrimination...

In general protections disputes not involving dismissal, if the parties to the dispute agree to participate, the Fair Work Commission (Commission) must hold a private conference to deal with the dispute...

This form is used to lodge an application with the Commission to deal with general protections dispute not involving dismissal under s.372 of the Fair Work Act 2009."

• [13] Thirdly, the heading on the first page of the Form F8C, which requires an applicant to start providing details, is "Form F8C - General protections application not involving dismissal" (my emphasis in bold).

• [14] While I can also accept that the subsequent creation of the Second s.372 Application by the Commission on 5 July 2024 may have caused Mr Karagiannis some confusion, I do not consider this was a factor in the delay that followed 5 July 2024 because the mistakes of Mr Karagiannis soon became apparent, as was the fact that he was outside the 21-day time period. Mr Karagiannis gave evidence that in the conversation he had with a staff member of the Commission on 8 July 2024, he had raised the 21-day time period. While Mr Karagiannis claims he was told he would be given an extension, the Commission's letter dated 8 July 2024 that was sent to Mr Karagiannis shortly before that telephone conversation, simply outlined requests that he complete and sign the (Form F8C) application form and make payment or an application for a fee waiver by 22 July 2024. Regardless, the Commission file note of the discussion between Mr Karagiannis and a staff member of the Commission on 11 July 2024 outlines that Mr Karagiannis disclosed having been dismissed on 14 June 2024, that he had been getting advice from the FWO and Legal Aid and that he was considering lodging a dismissal application. I therefore consider that any initial confusion about the creation of the two s.372 application files became academic by 11 July 2024 because Mr Karagiannis gave evidence at the determinative conference that it was on 11 July 2024 that he was advised by the Commission that he should have been using a Form F8 for a general protections dispute involving dismissal, instead of a Form F8C. Mr Karagiannis also gave evidence that it was suggested to him on 11 July 2024 that he obtain legal advice, because the Commission could not provide this, and that he was aware that he was, by this stage, outside the 21-day time period and would require an extension of time. My conclusion is that by 11 July 2024, Mr Karagiannis was on notice that he would need to lodge a Form F8 for a general protections dispute involving dismissal and that he was already beyond the 21-day time period.

• [15] As to what occurred between 11 July 2024 and 29 July 2024, Mr Karagiannis gave evidence at the determinative conference that he consulted a lawyer on 13 July 2024 and following this, he spent three or four days gathering material to support an application. Mr Karagiannis stated that having sent this material to the lawyer, a further week passed before they discussed the matter further. Mr Karagiannis' further evidence was that he and the lawyer ultimately adopted different views about what was required in terms of information, with the result that he decided to progress things himself. The subsequent contact Mr Karagiannis had with the Commission on 29 July 2024 is outlined above. Of particular note is that on 29 July 2024 Mr Karagiannis was told that he could lodge an application 'over the counter' and yet it took him until 1 August 2024 to do so.

• [16] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an application that provide a credible reason for the ensuing 27-day delay. Nor do I consider there was an acceptable or reasonable explanation for the 27-day delay. In particular, Mr Karagiannis knew about the 21-day time period (and that it had passed) for at least 22 days prior to lodging the Form F8 on 1 August 2024 and the absence of an acceptable or reasonable explanation for the delay in filing weighs against a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal - s.366(2)(b)

• [17] Action taken by an employee to dispute a dismissal, other than lodging a general protections application, may weigh in favour of granting an extension of time.[5] I am satisfied Mr Karagiannis discussed matters relating to his termination with the Respondent on 18 June 2024 and the parties disagreed about certain things. Even though Mr Karagiannis had no further contact with the Respondent thereafter before filing the Form F8, I am satisfied this factor weighs in favour of a finding that there are exceptional circumstances, but not to any great extent.

Prejudice to the employer - s.366(2)(c)

• [18] Neither party contended there is any prejudice to the Respondent including prejudice caused by the delay and I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. This consideration is a neutral consideration.

Merits of the application - s.366(2)(d)

• [19] I am required to "take into account" the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory.

• [20] Mr Karagiannis asserts that due to his being restricted to performing light duties, he was given an ultimatum that required him to either move to an alternate position at another site, which attracted a lower rate of pay and constituted a demotion, or resign. Having regard to this context, Mr Karagiannis asserts he was coerced into resigning. For its part, the Respondent asserts it was trying to settle upon a return-to-work plan with Mr Karagiannis that was sympathetic to a certificate of capacity he had provided. This was said to have involved discussions regarding the performance of light duties at an alternate facility which the Respondent claims "was based on clauses of the Applicant's employment contract."[6] The Respondent contends these discussions descended into a dispute about the rate of remuneration to be paid, at which point Mr Karagiannis resigned.

• [21] The weight to be given to the merits consideration in s.366(2)(d) of the Act is dependent on the extent to which there is merit in the substantive application.[7] I consider the merits of the application of Mr Karagiannis and the Respondent's foreshadowed defence turn on contested points of fact that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed and further, that the parties would need the opportunity to fulsomely present their respective cases. As I am not able to make any firm assessment of the merits at this stage, I do not consider they tell for or against an extension of time and therefore have concluded they are a neutral consideration.

Fairness as between the person and other persons in a similar position - s.366(2)(e)

• [22] 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. The matters Mr Karagiannis raised were directed at similar treatment he claims another former employee received from the Respondent but my conclusion is that neither party has brought to my attention any relevant matter concerning this consideration. I am also unaware of any relevant matter. I therefore consider this factor to be a neutral consideration.

• [23] The requirement that there be exceptional circumstances before time can be extended under s.366(2) of the Act 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.

• [24] The task before me in determining whether to grant this extension of time application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd:

"[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."[8] (italicised text in original)

• [25] I have had regard to and weighed each of the matters I am required to take into account under s.366(2), and, having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2). Accordingly, I dismiss the application of Mr Karagiannis to the Commission to deal with a general protections application involving dismissal. An order[9] to that effect will be issued with this decision.

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

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[6] Exhibit R1 at Digital Court Book 65.

[7] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71].

[8] [2018] FWCFB 901.

[9] PR779512.

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