Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - application filed out of time - no exceptional circumstances found - extension of time not granted.

• [1] On 3 September 2024, Mr Paulo Gonzalez 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 Gonzalez'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 Gonzalez's employment with the Department of Transport and Planning (the Respondent) came to an end, by way of redundancy, on 31 May 2024. For Mr Gonzalez to have filed his application on time, he was required to file by 21 June 2024. Mr Gonzalez filed his application 74 days after the 21-day timeframe. Mr Gonzalez is therefore required to seek an extension of time for his general protections application to proceed.

• [3] I conducted a Hearing of the matter on 25 November 2024. My Chambers prepared a Digital Hearing Book, containing all the submissions and evidence filed by the parties, which was issued prior to the Hearing. Noting that there were no objections from either party, I accepted into evidence the entirety of the Digital Hearing Book.

• [4] Mr Michael Carrick of the Victorian Government Solicitor's Office appeared for the Respondent. In a Hearing on 20 November 2024 of a request for orders to produce, which was not granted, Mr Carrick relied on the Decision of Commissioner Bissett in Megan Parolin v Commissioner of State Revenue T/A State Revenue Office; Department of Treasury and Finance and State of Victoria,[1] in which the Commissioner determined that as employees of the Victorian Government Solicitor's Office were employees of the Crown, they were not required to seek permission pursuant to s.596 of the Act when representing the State of Victoria (through its Departments). For the avoidance of doubt, notwithstanding this Decision, and there being no objection from Mr Gonzalez, I also granted Mr Carrick permission to represent the Respondent pursuant to s.596(2)(a) of the Act.

• [5] For the reasons given below, I am not satisfied that Mr Gonzalez has demonstrated that there are exceptional circumstances and therefore do not extend time for Mr Gonzalez 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, Mr Gonzalez asserted that the reason for the delay was because of his mental and physical ill health, which impacted his memory, concentration and comprehension, and this meant he could not file his application within time.[5]

• [10] The Respondent submitted that there are no exceptional circumstances. In relation to the reason for delay, the Respondent submitted that Mr Gonzalez was capable of undertaking multiple other activities, including filing two workers' compensation claims and then appeals during the same time period.[6] Further, it submitted that the medical evidence provided by Mr Gonzalez lacks specificity and does not provide any evidence as to why Mr Gonzalez was unable to file his general protections application.[7] The Respondent also submitted that Mr Gonzalez's belief that the matter was ongoing due to two open workers' compensation claims was wrong at law and in fact.[8] It is also contended by the Respondent that the interstate travel undertaken by Mr Gonzalez in March and June 2024 demonstrated he had some capacity to undertake activities, and therefore Mr Gonzalez could have filed his general protections claim within the 21-day timeframe.

• [11] Critically, at the Hearing, it was Mr Gonzalez's evidence that he only became aware he could file a general protections application at the end of August 2024. Upon becoming aware of this, he proceeded to file his application, approximately five days later, on 3 September 2024. This evidence is compelling, as it demonstrates that Mr Gonzalez was capable of filing his application promptly, despite the health issues he was experiencing. This evidence suggests that the reason for the delay was because Mr Gonzalez was not aware he could file a general protection application until after the 21-day timeframe had already elapsed. It is well established in the case law that ignorance of the timeframe is not an exceptional circumstance.[9] I have considered this evidence and find that Mr Gonzalez's ignorance of being able to file a general protections application, which caused the application to be filed out of time, cannot be considered exceptional.

• [12] I now turn to the medical evidence and the reason for the delay submitted by Mr Gonzalez in his submissions and evidence. Mr Gonzalez submitted documents from a number of medical practitioners and specialists, detailing the health issues he had been diagnosed with from 2023 to the present day. The only medical document which appears to draw a causal link between Mr Gonzalez's health issues and the late filing of his application is a letter from Dr Macedo, one of Mr Gonzalez's treating practitioners, dated 6 November 2024.[10] This letter describes Mr Gonzalez having developed symptoms which impact his ability to function optimally. It goes on the state that the '[d]ynamics of bullying and harassment in the work environment have the potential to jeopardize cognitive functioning - which includes impairments in concentration, decision-making, working memory, problem-solving, and overall productivity levels.'[11] The letter further states that '[i]t is therefore [his] professional opinion that these factors have significantly contributed to [Mr Gonzalez]'s recent difficulties with executive functioning - which have resulted in the herein-discussed missed deadlines.'[12]

• [13] Had the medical opinion of Dr Macedo been the only evidence regarding Mr Gonzalez's circumstances at the relevant time, I would likely consider it somewhat compelling in finding ill health to be an exceptional circumstance. However, in determining whether there are exceptional circumstances, I must consider all the evidence. The evidence before me demonstrates that despite Mr Gonzalez's ill health, he was capable of undertaking interstate travel, filing two workers' compensation claims and subsequent appeals in relation to these claims, (through his union, whom he would have been required to instruct), and engaging in post-redundancy calculations.

• [14] When I consider all the evidence, I am not persuaded that Mr Gonzalez's ill health constitutes a satisfactory reason for the delay, in view of all the tasks Mr Gonzalez was able to undertake in a similar period. The Form F8 is a simple form, which can be lodged online, and there is no satisfactory explanation given as to why Mr Gonzalez could complete these tasks but could not lodge his application within the 21-days. This finding is not to suggest that Mr Gonzalez is not experiencing health issues, but rather, that these health issues do not constitute exceptional circumstances when all the evidence has been considered.

• [15] I am not satisfied that Mr Gonzalez's ill health was the reason for the delay which resulted in the application being filed 74 days late.

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

Any action taken by the person to dispute the dismissal

• [17] Mr Gonzalez was first notified of a redundancy process in November 2023 and was subsequently made redundant on 31 May 2024.

• [18] The Respondent submitted that during the consultation period of the redundancy process, Mr Gonzalez provided a detailed response regarding the redundancy of his position.[13] The Respondent further submitted that Mr Gonzalez did not raise concerns with the redundancy outcome, and only raised issues in relation to his final payment calculation post his termination.[14] It is Mr Gonzalez's submission that he raised concerns with the Respondent's injury management team in May 2024 around workplace bullying issues.[15] Mr Gonzalez further submitted that his declining health hindered his ability to continue with this complaint.

• [19] On the material before me, it appears that Mr Gonzalez primarily raised the issues he had with his employment following the termination, and did not contest the termination itself with the Respondent, after he had been made redundant.

• [20] I therefore find this to be a neutral consideration.

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

• [21] The Respondent contends that the 'long delay' in filing the application gives rise to a general presumption of prejudice to the Respondent.[16] The Respondent further submitted that decision-makers made decisions regarding the redundancy at a certain point in time and that, subsequent to this, the passage of time negatively impacts the ability of these decision-makers to provide evidence of their state of mind during the redundancy process.[17] While the delay may be inconvenient and may make recollection difficult, I do not consider the delay to be prejudicial, as it is not normally out of course for these matters to be heard months after the termination event itself.

• [22] I therefore consider this to be a neutral consideration.

• [23] Mr Gonzalez filed a Form F8 alleging the Respondent dismissed him in breach of ss.351 and 352 of the Act.[18]

• [24] The Full Bench in Ivan Cowen v Renascent Regional Pty Ltd[19] 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.'[20]

• [25] The Respondent submitted the application is without merit as Mr Gonzalez's termination was because of genuine redundancy and not because of any prohibited reason.[21] The Respondent submitted that 130 redundancies took place across the organisation at the same time as Mr Gonzalez's, and therefore the application lacks sufficient merit, which should weigh against granting an extension of time.[22]

• [26] Based on the evidence and submissions before me, I have formed a preliminary view that this application does not appear to be particularly strong on merit. However, Mr Gonzalez submits that there are serious questions to be tried. As I do not have all the evidence before me, I am unable to make a full assessment on the substantial merits of the application.

• [27] 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

• [28] 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.'[23]

• [29] Neither party made any substantiative submissions, nor did they direct me to cases involving other persons in similar positions to that of Mr Gonzalez.

• [30] I consider this to be a neutral consideration.

• [31] In view of all the matters set out in s.366(1) of the Act, and considered above, there is one factor which weighs against and four factors which are neutral in the consideration of whether there are exceptional circumstances.

• [32] 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 Gonzalez's general protections application is therefore dismissed, and an Order[24] to this effect will be issued with this Decision.

M Carrick of the Victorian Government Solicitor's Office for the Respondent.

[1] [2018] FWC 4594.

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

[3] [2011] FWAFB 975.

[5] Digital Hearing Book ('DHB') page 24.

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

[16] Ibid page 363, citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[19] [2021] FWCFB 2606.

[23] [2015] FWC 8885 [29].

[24] PR782746.

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