s.365 - General protections

Application to deal with contraventions involving dismissal - Application filed beyond 21-day timeframe - No exceptional circumstances found - Application dismissed.

• [1] On 8 January 2025, Mr Paul Morrison 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. Mr Morrison's application was not filed with the Commission within 21 days of his dismissal as required under s.366(1)(a) of the Act.

• [2] Mr Morrison's employment with 622 142 214 Pty Ltd (the Respondent) came to an end, by way of redundancy, on 29 May 2023 and his application was filed on 8 January 2025. Mr Morrison therefore filed his application 569 days after the 21-day timeframe and is therefore required to seek an extension of time for his general protections application to proceed.

• [3] Mr Morrison's original application named BCivil Pty Ltd and DXC Technology as Respondents to the application.[1] The Respondent sought to amend its name on file from BCivil Pty Ltd to 622 142 214 Pty Ltd. I received submissions on whether an amendment should be made and noting that Mr Morrison no longer opposed the amendment at the Determinative Conference, I determined to exercise my powers pursuant to s.586(a) of the Act to amend the name of the Respondent on file to 622 142 214 Pty Ltd, and to remove DXC Technology as a secondary respondent.

• [4] I conducted a Determinative Conference of the matter on 26 May 2025. My Chambers prepared a Digital Hearing Book, containing all the material filed by the parties, which was issued 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.

• [5] For the reasons given below, I am not satisfied that Mr Morrison has demonstrated that there are exceptional circumstances and therefore do not extend time for Mr Morrison to make his application.

• [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.[2] I can only exercise my discretion if I am satisfied there are exceptional circumstances.

• [7] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[3]

"[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."

• [8] The matters that I need to consider to be satisfied whether there are exceptional circumstances are:[4]

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

• [9] In his submissions (which he was assisted by AI in preparing) Mr Morrison asserted that the reasons for the delay were:[5]

1. That the Respondent was late to notify him of the dismissal;
2. That he was confused regarding the identity of employer entity and effect of the transfer of business;
3. That he had ongoing WorkSafe proceedings;
4. That he suffered from medical and psychological complications;
5. That he received delayed advice from the Respondent; and
6. That he had attempted resolution before filing.

• [10] It was the Respondent's position that there are no exceptional circumstances.[6]

• [11] Mr Morrison says that one of the reasons for the delay is that DXC Claims Management Services (DXC) advised him to take this matter to the Fair Work Commission, several months after his dismissal, in an email on 18 December 2024, which said as follows: '[i]f you wish to pursue this matter further you are able to seek further legal advice or contact the relevant authorities such as Fairwork (sic).'[7] At the Determinative Conference, Mr Morrison said that it was only following this email, that he looked at the Fair Work Commission website as 'this was the only option he [...] had left' and that he had previously not contacted the Commission before. Mr Morisson says that after receiving the email on 18 December, he took a 'mental break' over the Christmas period and then began completing the form on 2 or 3 January 2025. Mr Morrison says that it was reasonable for him to rely on DXC for guidance, as they were actively involved in his WorkCover claims, and that DXC did nothing to protect his rights. However, this is misguided. It is not the responsibility of a third party to advise Mr Morrison of his legal options. It is Mr Morrison's responsibility to make enquires and pursue whatever options he considers appropriate.

• [12] In addition to this, Mr Morrison has also provided other reasons for why his application was filed 569 days late. However, I do not intend to go through each of these reasons in detail. This is because of the evidence given by Mr Morrison at the Determinative Conference, which was that he only became aware he could file a general protections application in late December 2024. It was Mr Morrison's evidence that after receiving the email from DXC on 18 December 2024, he sought some advice and then proceeded to file his application on 8 January 2025.

• [13] Regardless of the various other reasons given for the delay, I find it instructive that Mr Morrison was able to file an application shortly after becoming aware of the option to file. This leads me to the conclusion that the sole reason he filed his application late was because he did not know he could do so. It is well established in case law that ignorance of the timeframe is not an exceptional circumstance.[8] I do not consider Mr Morrison's lack of awareness about the option to file his application to be an exceptional circumstance.

• [14] In any case, even if this were not so, I am not persuaded that the other reasons given for the delay, when considered either separately or collectively, constitute exceptional circumstances. Mr Morrison was capable of engaging with WorkSafe and participating in AAT proceedings prior to making this application. Mr Morrison was also partially able to complete a Diploma - a process which would require the completion of tasks by set deadlines. To make a general protections application within time, Mr Morrison only had to file an application within 21-days. I consider that these circumstances demonstrate that Mr Morrison had the ability to file an application.[9] Further, whilst I have sympathy for Mr Morrison's circumstances, I do not consider that the medical and psychological issues he experiences, based on the evidence he has provided, constitute exceptional circumstances.[10]

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

Any action taken by the person to dispute the dismissal

• [16] Mr Morrison was made redundant on 29 May 2023. He says he attempted to clarify and resolve his issues post-termination through direct communication with the Respondent, and sought confirmation of his entitlements, clarification on the termination and resolution of the procedural issues.[11] The Respondent contests this and denies that Mr Morrison was 'attempting resolution' for 'any of, let alone, the entire period of the delay with BCivil'.[12] Mr Morrison has not provided any specific evidence to show that he was disputing the dismissal itself at the time with the Respondent but I do acknowledge that he was attempting to ascertain the identity of the corporate entity that dismissed him.

• [17] I therefore find this factor to be a neutral consideration as to whether there are exceptional circumstances.

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

• [18] The Respondent contends that the business was sold two years ago, and that the cost and inconvenience in responding to this matter, so late, is significant.[13] While I do not consider mere inconvenience is sufficient to infer prejudice, in this case, I find the delay of 569 days is significant as the time elapsed may create difficulties for witnesses to recall events, which may be prejudicial to the Respondent in the further conduct of the matter.

• [19] I consider that the significant delay is prejudicial to the employer, which weighs against a finding that there are exceptional circumstances.

• [20] Mr Morrison filed a Form F8 alleging the Respondent dismissed him in breach of ss.340 and 351 of the Act.[14]

• [21] The Full Bench in Ivan Cowen v Renascent Regional Pty Ltd[15] 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.'[16]

• [22] The Respondent says the application is without merit as Mr Morrison's termination was not by reason of Mr Morrison's exercise of a workplace right, but rather that his role was terminated by way of redundancy. The Respondent says that the purchaser of the business did not offer a position to Mr Morrison.

• [23] Based on the positions of the parties, I do not have all the evidence before me which would enable me to make a full assessment on the substantial merits of the application.

• [24] As such, I consider the merits of the application to be a neutral factor in the consideration of whether there are exceptional circumstances.

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

• [25] 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, and that consideration may relate to matters currently before the Commission or others previously decided by the Commission.'[17]

• [26] Neither party made any substantiative submissions, nor did they direct me to cases involving other persons in similar positions to that of Mr Morrison. I consider this to be a neutral consideration.

• [27] In view of all the matters set out in s.366(1) of the Act, and considered above, there are two factors which weigh against and three factors which are neutral in the consideration of whether there are exceptional circumstances.

• [28] Having weighed each of these factors and having considered them both individually and collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Mr Morrison's general protections application is therefore dismissed, and an Order[18] to this effect will be issued with this Decision.

[1] Digital Hearing Book (DHB) page 6.

[2] Fair Work Act 2009 (Cth) s.366(2) ('FW Act').

[3] [2011] FWAFB 975.

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

[15] [2021] FWCFB 2606.

[17] [2015] FWC 8885 [29].

[18] PR788451.

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