s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - extension of time - representative error - extension granted - matter to proceed to conference.

• [1] Mr Tim Sutcliffe (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 20 August 2024. The Applicant claimed that adverse action was taken against him by Aldi Stores (A Limited Partnership) and Mr Ben Lowe (the Respondents) under ss.340, 351 and 352 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant was dismissed on 25 July 2024. The Application is 5 days out of time from the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The Application can only be accepted if the Commission allows taking into the factors of s.366(2) which I have considered below.

• [3] The Respondent initially raised an objection against the inclusion of Mr Ben Lowe as a Respondent. This objection was not pressed during the hearing and I satisfied that Mr Lowe has been included in the application on the basis of the accessory liability provision in s.550 of the Act.

Should an extension of time be granted under s.366(2) of the Act?

• [4] Section 366 of the Act provides when a further period is granted to accept a late application.

(1) An application under section 365 must be made:

(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.

• [5] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

• Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.

• • It can be 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. [1]

• [6] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however it must be an acceptable[2] or a reasonable explanation.[3]

• [7] The Applicant submits that the reason for delay is due to representative error. Mr Hunter Trotman is the Applicant's representative. I note that earlier this year, I granted an extension of time for another general protections application which was also out of time due to representative error by Mr Trotman.[4]

• [8] Representative error is generally accepted as an exceptional circumstance of delay if the Applicant is blameless is causing the delay. The Full Bench summarises when a representative error is considered an exceptional circumstance:

"In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless, and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted."[5]

• [9] Mr Trotman has argued that the error is solely his. However, there is some evidence to suggest that the Applicant could have been more proactive in pursuing his claim.

• [10] The Applicant contacted Mr Trotman on 24 July 2024 to advise that he anticipated that he would be dismissed. The Applicant was verbally advised of the dismissal on 25 July 2024 and was given a termination letter on 26 July 2024.

• [11] Mr Trotman used 26 July 2024 as the date the dismissal took effect for the purposes of calculating the 21-day timeframe, meaning by his calculations, the application was due by 16 August 2024. Mr Trotman did not advise the Applicant that dismissal applications need to be filed within 21 days.

• [12] The Applicant advised Mr Trotman of the dismissal on 29 July 2024. The Applicant told Mr Trotman that he wanted to pursue a "dismissal claim". Mr Trotman asked the Applicant to prepare a chronology of events. On 29 July 2024, Mr Trotman entered a reminder in his calendar for 16 August 2024. The reminder was titled "Tim Sutliffe 21 days".[6]

• [13] Mr Trotman emailed the Applicant on 12 August 2024 to ask if the Applicant was available for a phone call on 14 August 2024 at 10:00am.

• [14] Mr Trotman failed to call the Applicant on 14 August 2024 and the Applicant did not reach out to Mr Trotman.

• [15] The Applicant did not prepare the chronology as Mr Trotman had asked him to. When asked why he did not do this, the Applicant said he "totally forgot". The Applicant stated that had he known about the 21-day statutory timeframe, he would have called Mr Trotman or would have "taken matters into my own hands".[7] I note that ignorance of the 21-day statutory timeframe is not an acceptable reason for delay.[8]

• [16] Mr Trotman called the Applicant on 20 August 2024. Mr Trotman apologised to the Applicant and told him that he had made a mistake, the Applicant's application had been due on 16 August 2024. Mr Trotman filed the application on 20 August 2024.

• [17] I find that given Mr Trotman had only been advised that the matter was a "dismissal claim", more information was needed before Mr Trotman could act on the Applicant's instructions to proceed with a claim in the most appropriate manner. It was not clear whether the application was for an unfair dismissal claim or a general protections claim involving dismissal.

• [18] While the Applicant failed to prepare a timeline as requested, ultimately the blame lay with Mr Trotman, who failed to call the Applicant to seek further information on 14 August and failed to file a claim as per the reminder in his calendar.

• [19] Mr Trotman took immediate steps to rectify the error once he realised the statutory timeframe had been missed. He filed the application after speaking with the Applicant on 20 August 2024. Given that it was an error because of the representative, I find that there was an exceptional circumstance for the reason of delay. This factor weighs in favour of granting an extension of time.

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

• [20] The Applicant contacted Mr Trotman the day before his dismissal, anticipating that he would be dismissed soon. On Friday, 26 July 2024 the Applicant received a termination letter from the Respondent.

• [21] The following Monday, on 29 July 2024, the Applicant again contacted Mr Trotman and advised him that he had a "dismissal related" claim.[9] The Applicant signed the necessary documents to engage Mr Trotman shortly after this.

• [22] The Applicant forgot to prepare a chronology of events for Mr Trotman, which would have assisted Mr Trotman in preparing the application. However, I am satisfied that on balance the Applicant did take active steps towards disputing the dismissal. This factor weighs in favour of granting an extension of time.

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

• [23] I note the application was filed 5 days out of time.

• [24] The Respondent has not adduced specific evidence of prejudice as a result of the delay other than "the Respondent's ability properly to defend the proceedings would be detrimentally affected".[10] This is a neutral factor.

• [25] In Kornicki v Telstra-Network Technology Group,[11] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [26] Without a hearing on the merits, it is difficult to consider the merits of the Applicant's claim. I am satisfied that the Application was not without merit. Accordingly, I find this a neutral factor.

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

• [27] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[12] Extensions of time have been granted in Rowe v National Pump & Energy Pty Ltd [2024] FWC 2103, Riazi v Santos Limited [2024] FWC 536, Falefatu v Shane Namour as trustee for the Namour Trust T/A Namour Transport [2024] FWC 2293 and Lawlor v The University of New England [2024] FWC 2824 granting an extension of time for representative error. This factor weighs in favour of granting an extension of time.

I find that there are exceptional circumstances in considering the above factors and the Commission may consider whether to allow a further period for the application to be made. I exercise my discretion to extend the period for the Application to be made to 20 August 2024. My Chambers will program the matter for conciliation.

R. Haddrick of Counsel for the Applicant, instructed by Queensland Workplace & Workplace Injury Law

P. Noakes appearing on behalf of the Respondent from Seyfarth Shaw

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[2] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[3] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[4] Falefatu v Shane Namour as trustee for the Namour Trust T/A Namour Transport [2024] FWC 2293

[5] Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 at [25].

[6] Hunter Trotman Witness Statement [7].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].

[11] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[12] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818, [31].

Printed by authority of the Commonwealth Government Printer