s.365 - General protections

Melbourne Structural Pty Ltd Trading AS Soil Test Melbourne, Alejandro (Alex) Rodriguez

Application to deal with contraventions involving dismissal - Application found to have been made outside the 21-day timeframe - Exceptional circumstances found - Extension granted.

• [1] On 21 November 2024, Ms Nimisha Krishnan filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal. The Respondents to Ms Krishnan's application are Melbourne Structural Pty Ltd T/A Soil Test Melbourne (Soil Test Melbourne) and Mr Alejandro (Alex) Rodriguez (the Respondents).

• [2] In its Form F8A - Response to a general protections application involving dismissal, the Respondents raised a jurisdictional objection to Ms Krishnan's application, being that it was filed outside the 21-day timeframe. This objection must be dealt with before the Commission can conduct a Conference under s.368 of the Act.

• [3] The Respondents say that Ms Krishnan's dismissal took effect on 23 October 2024, and as such, that Ms Krishnan filed 8 days after the 21-day period. Ms Krishnan says she was dismissed via text message on 30 October 2024 and so her application was filed 10 minutes out of time.

• [4] The matter proceeded to a Determinative Conference. My Chambers prepared a Digital Hearing Book which was issued to the parties prior to the Determinative Conference. Noting that there were no objections from either party, I accepted into evidence the entirety of the Digital Hearing Book. At the Determinative Conference, Ms Krishnan and Mr Alex Rodriguez, Director of Soil Test Melbourne, gave evidence.

• [5] In considering the evidence of the parties, I find that the application was filed outside the 21-day timeframe and that there are exceptional circumstances which justify the granting of an extension of time. The reasons for my decision follow.

• [6] The Act allows the Commission to consider extending the period within which a general protections application involving dismissal may be made, if it is satisfied that there are exceptional circumstances.[1] I can only exercise my discretion if I am satisfied there are exceptional circumstances. The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]

"[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."

• [7] The matters that I need to consider to be satisfied whether there are exceptional circumstances are:[3]

• the reason for the delay;
• any action taken by the person to dispute the dismissal;
• prejudice to the employer (including prejudice caused by the delay);
• the merits of the application; and
• fairness as between the person and other persons in a similar position.

• [8] The parties have different views as to the date that Ms Krishnan's dismissal took effect.

• [9] Mr Rodriguez says that he sent Ms Krishnan an email on 23 October 2024 saying that Ms Krishnan's employment was terminated. At the time, Ms Krishnan was on a period of personal leave. At the Determinative Conference, Mr Rodriguez showed the parties this email that he says was sent to Ms Krishnan's email address from one of Soil Test Melbourne's email addresses. The email shown was a termination email of 23 October 2024 and appears to have been sent to Ms Krishnan's email. However, Ms Krishnan strongly refutes having ever received this email.

• [10] Ms Krishnan says that the first time she became aware of her dismissal was when she received a text message from Mr Rodriguez on 30 October 2024, which stated the following:[4]

Due to unforeseen financial hardships the business is no longer in a position to be able to sustain your employment. We thank you for your service and dedication to the company. We wish you all the best with your future endeavours. We will be paying out your annual leave and 4 weeks redundancy.

• [11] A termination does not take effect until it is communicated to the employee.[5] Whilst it is unclear why Ms Krishnan did not receive Mr Rodriguez's email of 23 October, it is clear she did receive the text message of 30 October.[6]

• [12] In addition, Ms Krishnan was on a period of paid personal leave from 16 to 29 October 2024, supported by a medical certificate, which Mr Rodriguez does not dispute. It was Mr Rodriguez's evidence that he knew Ms Krishnan was on paid personal leave until 29 October. At the Determinative Conference, Mr Rodriguez conceded that the dismissal date was not 23 October and instead said that the termination date was 29 October. I disagree. If Mr Rodriguez concedes that 23 October is not the termination date, Ms Krishnan was on paid leave until 29 October, and there is no evidence of any communication of the termination occurring on 29 October. The text message of 30 October is the only communication of termination sent to Ms Krishnan after her period of personal leave ended on 29 October.

• [13] I believe the evidence of Ms Krishnan that she did not receive the email of 23 October and that she did not find out about her termination until receiving the text message on 30 October.

• [14] I therefore find Ms Krishnan's date of dismissal to be 30 October 2024, which means that her application was filed 10 minutes late.

Are there any exceptional circumstances that justify the granting of an extension of time?

• [15] I now consider the factors under section 366(2) of the Act and whether there are exceptional circumstances which warrant the granting of an extension of time.

• [16] Ms Krishnan says that she was aware of the 21-day timeframe to file her application from the date she was dismissed. Ms Krishnan filed her application at 12:10AM on 21 November 2024, some 10 minutes after the deadline.

• [17] Ms Krishnan says that she was uncertain as to when her dismissal took effect, as she received information from the Fair Work Ombudsman which she understood as meaning she was not dismissed until she received her payment in lieu of notice.[7] Ms Krishnan also says that she was under a great deal of stress at the time and that she was waiting to receive her payment in lieu of notice to then determine the date she was dismissed. Ms Krishnan says she is still unsure as to whether she has received her payment in lieu of notice and that although she has received some payments from Soil Test Melbourne, it is unclear to her what these payment amounts relate to.[8] It is incumbent on an employer to clearly specify the nature of payments made to an employee, which does not appear to have been done in this case. Mr Rodriguez says that the accountant was responsible for the payments. Nevertheless, it is an employer's responsibility to ensure this is done correctly.

• [18] While I accept Ms Krishnan was confused about the payment in lieu of notice, and her confusion was exacerbated by the lack of documentation regarding the payments made to her, I do not find that this an acceptable reason for the delay. Ms Krishnan was aware she had 21 days to file her application. Ms Krishnan proceeded to file her application regardless of the payment in lieu of notice issue being resolved, as she was aware of the 21-day requirement, and could have filed earlier irrespective of her confusion.

• [19] Ms Krishnan also says that she conducted research herself and that it took several days to understand the Act but it is unclear how this contributed to the delay, especially when she was aware of the 21-day requirement.[9] I do not accept this as a credible reason for the delay.

• [20] Ms Krishnan also says that whilst she was attempting to file her application online, she had sudden IT issues which meant she could not upload her application in time.[10] Ms Krishnan says that her computer froze whilst she was attempting to submit her application which required her to then start up another computer, resulting in her application being filed 10 minutes after midnight. While I appreciate that IT issues arise and computers can freeze, this is not an exceptional circumstance. IT issues are commonplace and should be factored in when filing an application. That Ms Krishnan chose to leave the filing of her application until the 'eleventh hour', when she had the 21 days to do so, is not an acceptable reason for the delay.

• [21] I find that the reasons for delay weigh against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [22] Ms Krishnan says she tried to call Mr Rodriguez on 30 October when she got his text message, but he refused to answer her calls. Mr Rodriguez says he called her back, but she did not answer. Ms Krishnan says that on 8 November, Mr Rodriguez called her. She says that during this call she asked him why he terminated her employment over text message, and he did not respond. She says that he asked her if she was interested in coming back to work. Mr Rodriguez agrees that a conversation took place on 8 November, but disputes that he asked her if she was willing to come back to work. There is no evidence that Ms Krishnan made any other attempts to contact Mr Rodriguez regarding the dismissal and to dispute the dismissal.

• [23] I therefore consider this factor to be neutral.

Prejudice to the employer (including prejudice caused by the delay)

• [24] The Respondent has not made any substantive submissions on this consideration. I do not consider that the Respondent has suffered any undue prejudice caused by the 10-minute delay, relative to if the application had been filed within time.

• [25] I therefore consider this factor to be neutral.

• [26] The Full Bench in Ivan Cowen v Renascent Regional Pty Ltd[11] stated that 'in cases such as this where there is not a full examination of the substantial merits, it is appropriate to make an assessment of the case based on the limited material available through the prism of viewing [the] case at its most favourable.' On the material provided in the application, Ms Krishnan appears to have an arguable case, which is not to suggest that it will succeed, but rather that there is enough to justify the pursuit of her general protections claim.

• [27] In her Form F8, Ms Krishnan says that the Respondents have contravened ss. 340, 343, 351 and 352 of the Act. Ms Krishnan says she was terminated for taking personal/ carer's leave. Following the birth of her baby, Ms Krishnan took a period of parental leave and returned to work in August 2024. Ms Krishnan says that upon returning from parental leave, she returned to a hostile work environment. It is uncontested between the parties that following her return, Ms Krishnan took a number of days of personal/ carer's leave.

• [28] It was Mr Rodriguez's evidence that Ms Krishnan was made redundant. In their Form F8A, the Respondents state that Ms Krishnan returned from parental leave on 1 August 2024 and that between August and October 2024 she took 25 full days and 5 partial days of personal/carer's leave. The Form F8A states the following:[12]

After so much sick and carers leave, I was concerned about Ms Krishnan's wellbeing. I wanted to adhere to my obligations to avoid Ms Krishnan's work negatively affecting her health or the health of her child. I fully respected Ms Krishnan's right to privacy, and did not request clarification on the reasons for her frequent and extended personal leave. At no time did Ms Krishnan share more than general details of her condition (as is her right), or request any adjustment to her working arrangements in order to accommodate her needs.

Ms Krishnan repeatedly demonstrated that she could not carry out the tasks required of her role. In late September, I asked Ms Krishnan via the phone to provide a doctor's certificate confirming that she was fit to perform the role. I asked again via email on 10 October (copy of email provided). Ms Krishnan did not provide a medical certificate to say that she was fit for work. To the contrary, after receiving my email on 10 October she took another long period of personal leave from 16 - 29 October.

As Ms Krishnan was clearly unfit for work and unable to carry out her duties. I could not continue to employ her. Ms Krishnan's attempts to work were damaging the business by neglecting her duties. Clients reported that calls were going unanswered at times when Ms Nimisha was on duty, and were not receiving replies to emails. Clients also reported that Ms Krishnan provided misleading and incorrect information.

Ms Krishnan abandoned her duties on several occasions due to an unspecified medical condition.

• [29] The Respondents appear to equate the taking of personal/ carer's leave with abandoning one's duties. It was Mr Rodriguez's evidence that he had several conversations with Ms Krishnan from August 2024 onwards about her being unable to perform her role and the impact this was having on the business, and that he told her that if she could not do the work required, then he would need to bring in somebody else to do the work.

• [30] At the Determinative Conference, Mr Rodriguez gave several reasons for terminating Ms Krishnan's employment, including redundancy. Ms Krishnan says that someone else was employed to do her role and that this individual commenced on 28 October 2024. Mr Rodriguez did not contest this.

• [31] The Respondents bear the onus of rebutting the presumption that the dismissal was due to a protected reason. Ms Krishnan is entitled, subject to notice and evidence requirements, to take personal/ carer's leave. While I do not make a determination on whether the termination was due to a protected reason, I regard Mr Rodriguez's own admission that he terminated Ms Krishnan because she had 'abandoned her duties on several occasions due to an unspecified medical condition' as instructive in considering the merits of Ms Krishnan's application.[13]

• [32] In light of the general protections matters raised in Ms Krishnan's application, and Mr Rodriguez's response, I consider this factor strongly weighs in favour.

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

• [33] As Deputy President Gostencnik in Morphett v Pearcedale Egg Farm noted, 'this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.'[14]

• [34] Neither party made any substantive submissions with respect to this factor. As each matter turns on its own facts, having found no cases with a similar factual matrix to this matter and considering the circumstances of this case, I consider that this factor to be neutral.

• [35] The Full Bench in Nulty v Blue Star Group said the following with respect to whether exceptional circumstances warrant the exercise of my discretion:[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.

• [36] Having considered all the circumstances of this matter and the factors in s.366(2), I find one factor weighs against, three factors are neutral, and one weighs strongly in favour. I consider that the merits of the application weigh strongly in favour and therefore determine that it is appropriate to exercise my discretion to grant Ms Krishnan an extension of time. An Order[16] to this effect will be issued with this Decision.

• [37] The matter will now be listed for a conciliation conference.

[1] Fair Work Act 2009 (Cth) s 366(1) (FW Act).

[2] [2011] FWAFB 975.

[4] Digital Hearing Book (DHB) page 84.

[5] Ayub v NSW Trains [2016] FWCFB 5500 [36].

[11] [2021] FWCFB 2606 [42].

[14] [2015] FWC 8885 [29].

[15] [2011] FWAFB 975 [15].

[16] PR785891.

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