Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time - application dismissed.

[1] On 16 March 2023, Ms Ogechi Charis made an application under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving the dismissal from her employment with Canberra Health Services (CHS).

[2] Ms Charis commenced employment with CHS on 12 December 2022 in the role of Registered Nurse Level 1. She gave evidence that she was notified of her dismissal during a meeting on 21 February 2023 which was followed by a letter the following day confirming her termination, effective immediately. Ms Charis' general protections application was made outside the 21 day period prescribed by the Act and can only proceed if the Commission allows a further period in accordance with s.366(2) of the Act.

[3] The application was initially listed for hearing on 25 May 2023 to consider whether to extend time. CHS was represented by Mr C Phillipson of ACT Government Solicitor, however Ms Charis did not appear. She later advised that the reason for her non-attendance was that she was in Perth and forgot about the time zone difference. The application was relisted for hearing on 30 May 2023 and proceeded at that time.

• [4] The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]

(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] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:

"[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 onus of establishing exceptional circumstances lies with Ms Charis.

[8] I now deal with each of the provisions of s.366(2) of the Act.

• [9] The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]

[10] Ms Charis, in her written submissions, said she 'only applied to Employee Dismissal to file for my case on the 16th of March because of financial circumstances". She went on to say that she received her final pay on 16 March and so was able to lodge her application through Employee Dismissals, a paid agent, on that date.

[11] In her oral evidence, Ms Charis confirmed the reason for the delay was that she was waiting to be paid.

[12] Ms Charis also gave evidence that she applied for and was granted a fee waiver for the $77 fee to make her application.

[13] On the evidence before me, I am not satisfied that Ms Charis has provided satisfactory explanation for her failure to file her application within the statutory time period. There is nothing out of the ordinary or uncommon for an applicant to experience financial difficulties having been dismissed.

[14] This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[15] There is no evidence to suggest that Ms Charis took any steps to contest her dismissal until the filing of this application. This weighs against a finding that there are exceptional circumstances.

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

[16] There is no evidence to support a finding that CHS would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.

• [17] For the purpose of determining whether to grant an extension of time for Ms Charis to file her application, the Commission 'should not embark on a detailed consideration of the substantive case.'[4]

[18] Ms Charis was dismissed after approximately 3 months of employment for performance reasons, the details of which are set out in her letter of termination and the response provided by CHS. Ms Charis says in her application that she had asked whether she could "drop her work hours' from full time to part time and was dismissed because she made complaints or inquiries in relation to her employment. In her oral evidence, she disputed the performance issues raised by CHS.

[19] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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

• [20] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[5] considered this criterion and said 'cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.'[6]

[21] Other than Ms Charis asserting she was not treated fairly, neither party made submissions on this criterion and I therefore find this to be a neutral consideration.

[22] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Ms Charis are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[23] An order giving effect to this decision is separately issued.

C Phillipson of ACT Government Solicitor for Canberra Health Services.

[1] [2016] FWCFB 6963.

[2] [2011] FWAFB 975.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[5] [2015] FWC 8885.

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