s.365 - General protections

Lofaro; The Trustee for the Australian Project Trust t/as Fassifern Coaches/Yellow Bus

Application to deal with a general protections dismissal dispute - late application - whether extension of time should be allowed

• [1] Mr Paul Mulcahy was employed as a school bus driver by the Trustee for the Australian Project Trust (APT) trading as Fassifern Coaches/Yellow Bus from 23 January 2012 until 29 November 2024 when his resignation took effect in anticipation of re-employment in the new school year. Mr Mulcahy says he was subsequently dismissed on 20 January 2025 when APT withdrew an offer of employment dated 16 January 2025 (and which was due to commence on 28 January 2025). On 25 February 2025, Mr Mulcahy applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act).

• [2] Mr Mulcahy alleges that he was dismissed by APT in contravention of the general protections because it misled him into resigning to access his long service leave and subsequently refused to re-employ him. APT objects to the application on the basis that the application is out of time and Mr Mulcahy was not dismissed. In my view, Mr Mulcahy's employment with APT came to an end on 29 November 2024 when his resignation took effect. On this basis, the application is 65 days late. If I am wrong about the effective date of dismissal because there was a resumption in the employment relationship by offer and acceptance on 16 January 2025 (later withdrawn on 20 January 2025), the application is 15 days late. Either way, an extension of time is required for the application to proceed and the facts relevant to the exercise of discretion in this case are the same.

• [3] The question is whether additional time can and should be allowed for the application to be made. I find that I am satisfied that there are exceptional circumstances of relevance to the late filing of the application such that additional time can be allowed for the application to be made. But in the circumstances, I have decided not to exercise my discretion to allow the application to be made late because of an insurmountable jurisdictional hurdle faced by Mr Mulcahy. The application will instead be dismissed.

• [5] An application under s.365 of the Act must usually be filed within 21 days of dismissal. The Commission can extend the filing period if there are exceptional circumstances (s.366(1)(b)) after taking into account the following matters set out in s.366(2):

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

• [6] These are considered in turn as they relate to Mr Mulcahy's application.

• [7] Reason for delay: Mr Mulcahy initially applied on 6 February 2025 for the Commission to deal with an unlawful termination dispute under s.773 of the Act. This was within 21 days of what Mr Mulcahy understood to be his dismissal on 20 January 2025. At that time, Mr Mulcahy was not employed by APT. He was a prospective employee: he had accepted an offer of employment and was due to commence on 28 January 2025. This followed his resignation in November 2024 after being told by Mr John Musso, Owner of APT, that he needed to resign to access his long service leave and that he would be 'restarted' in January 2025.

• [8] The offer of employment made to Mr Mulcahy in January 2025 would have changed his duties by moving him off the school run he had been working for approximately 12 years. It was in many respects more favourable to Mr Mulcahy: it was closer to his home, with better hours and pay. But it was also working from a different depot and for a different school. When Mr Mulcahy asked why he was not being returned to his old run, he was told that it had already been filled and that APT had received 'complaints' APT from the school although no details were provided.

• [9] This upset Mr Mulcahy. He approached the school (a client of APT) to ask if complaints had been made about him. The answer was no. He then spoke angrily to Ms Kimberly Honeysett, APT's Office Administrator, Ipswich depot, including by making personal attacks on APT's Chief Operating Officer, Ms Marisa Lofaro. APT responded by withdrawing its offer of re-employment and advising Mr Mulcahy that he would no longer be offered work in any capacity. At the time of his application under s.773 of the Act, Mr Mulcahy genuinely but wrongly believed that he had made an unfair dismissal claim and that it was in time.

• [10] On 20 February 2025, Mr Mulcahy spoke to the Commission about his application and was made aware that he may not be eligible to proceed if APT was a 'national system employer' and he could make a general protections application instead. Mr Mulcahy was told that he could not make both applications at once. Mr Mulcahy expressed his frustration at the confusing names of the different forms dealing with dismissal and that it had taken 14 days for the Commission to contact him in this regard. He said he would seek legal advice but ultimately did not do so as the estimated time for an appointment was 5 weeks.

• [11] At the time of filing this application on 25 February 2025, Mr Mulcahy understood that he needed to "get rid" of his first application to make a general protections application, but he wanted to ensure there was proof in the system of his earlier application being filed in time. On 27 February 2025, Mr Mulcahy discontinued the s.773 application. The difficulty with this timeline was that s.725 of the Act operated to prevent Mr Mulcahy from applying to the Commission under the general protections while his s.773 application remained active (discussed further below).

• [12] Action to dispute the dismissal: It is clear from the history above that Mr Mulcahy actively sought to dispute the alleged dismissal after he was told he would not be re-employed by APT in January 2025. This was when he believed he had been dismissed. He did not earlier take steps to dispute the dismissal after his resignation with effect from 29 November 2024 because he was relying on APT's promise of a "restart" in January 2025.

• [13] Prejudice to the employer: There is limited prejudice to APT if additional time is allowed for the application to be made in the circumstances. The only prejudice it asserts is the cost and time associated with responding to such a claim. But to the extent that these are exacerbated by the delay, APT was a significant contributor to its own circumstances. It misled Mr Mulcahy about resigning to access his long service leave entitlements. This caused Mr Mulcahy to resign and then wait almost 2 months before what he thought would be a resumption in the employment relationship. In the interim, APT decided to change the work it was prepared to offer Mr Mulcahy without explaining its rationale or discussing the changes with Mr Mulcahy ahead of time. Although the work was more favourable to Mr Mulcahy, he did not understand the reason for the change and the lack of transparency caused inevitable disputation.

• [14] Merits: On the face of the record, the application has merit if Mr Mulcahy can establish that he was dismissed on 29 November 2024. In this regard, I find that Mr Mulcahy was misled into resigning so that he could access to his long service leave entitlements. This was a course of conduct engaged in by APT which was likely to bring the employment relationship to an end. The only question is whether this conduct forced Mr Mulcahy to resign when he did.

• [15] If Mr Mulcahy was instead dismissed when the offer of employment was withdrawn on 20 January 2025, the merits are less certain. The apparent reason for dismissal was Mr Mulcahy's conduct in response to APT's own conduct in changing the work offered in January 2025. These are questions of fairness and reasonableness rather than illegality. Whether the dismissal also amounted to adverse action for a prohibited reason is unable to be ascertained on the face of the record.

• [16] Fairness as between Mr Mulcahy and another person in a like position is not a relevant consideration in this case.

• [17] I am satisfied that there are exceptional circumstances in this case in connection with the late filing of the application. Mr Mulcahy was misled about having to resign to access his long service leave and this brought the employment relationship to a premature end on 29 November 2024 after more than 12 years' service.

• [18] Mr Mulcahy is 65 years of age and appears to have had difficulty understanding the information on the Commission's website. This caused him to initially make the wrong application to the Commission. After receiving additional information from the Commission about eligibility to apply and the prohibition on multiple actions, he decided to file a new application without first withdrawing the earlier application.

• [19] Section 725 of the Act provides that a person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies. Section 727 of the Act deals with general protections applications to the Commission under s.365. Section 730 deals with unlawful termination applications to the Commission under s.773. Each of those sections apply if an application of the relevant type has been made and has not either been withdrawn, or failed for want of jurisdiction, or resulted in the issue of a certificate under s.368(3) or s.776(3) respectively. On 25 February 2025 when this application was made, the s.773 application had not been withdrawn. It had not failed for want of jurisdiction (even if that was a likely outcome) and no certificate had been issued under s.776(3).

• [20] On balance, I have decided not to exercise my discretion to extend the filing time in the circumstances. Mr Mulcahy took prompt action to dispute the dismissal from the time he knew he would not be re-employed. There is limited prejudice to APT if the application is to proceed. The merits weigh in favour of Mr Mulcahy (in relation to a dismissal date of 29 November 2024) and neutrally (in relation to dismissal date of 20 January 2025) and fairness as between others is not a relevant consideration. However, these matters are outweighed by the jurisdictional hurdle faced by Mr Mulcahy in bringing this application by reason of s.725 of the Act, which operated to prevent the application from being made under s.365 of the Act at the time that it was filed on 25 February 2025.

• [21] As no extension of time is granted, it remains the case that the application was not filed within 21 days after the dismissal took effect. The application was not made in accordance with the Act.

• [22] The application is dismissed under s.587(1)(a) of the Act.

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