s.365 - General protections

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time denied

• [1] On 18 April 2025, Mr Troy Tillier lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Fantastic Furniture Pty Limited (Fantastic or the Respondent). Mr Tillier commenced employment on 7 October 2024 and his employment terminated on 19 March 2025.

• [2] Mr Tillier was employed subject to a probationary period of employment in the position of Assistant Store Manager.

• [3] Section 366(1) of the Act requires an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 10 days after the 21-day statutory time limit.

• [4] Mr Tillier submits that his dismissal is a contravention of s.351 sexual orientation (he says he felt looked down on because of his sexuality) and s.352 temporary absence because he attended his partner's medical appointments.[1]

• [5] Mr Tillier submits that he met with his Store Manager and the Area Manager on 19 March 2025 when he was dismissed immediately. He submits that his dismissal was without due process.[2]

• [6] The Applicant's major concern was that after requesting an Employment Separation Certificate on 11 April 2025, he discovered a delay in receiving unemployment benefits through Centrelink because the Certificate stated that his employment ended by voluntary resignation.

• [7] The Applicant emailed the Respondent on 13 April 2025 at 7.04pm stating that the Employment Separation Certificate contains a serious error because it erroneously records a resignation and not a dismissal. In this email he states that his partner was present as a support person when he was dismissed and secretly recorded the meeting. He states that he informed the Aea Manager in his final meeting that he did not intend to resign and that Fantastic would have to dismiss him. He then demands that a correct document is uploaded and sent to him by "close of business today". [3]

• [8] On raising the incorrect statement in the Employment Separation Certificate he discovered that Fantastic had a letter of resignation which he says was not produced by him. Fantastic made further inquiries and amended their records to reflect a dismissal and a new certificate was issued.

• [9] Mr Tillier tendered various messages, payslips, and witness statements from himself, Kristofer Edwards, his partner and support person at the dismissal and Caleb Hema coworker at Fantastic.

• [10] On the day of the hearing Mr Tillier was contacted on multiple occasions by telephone and an email message was sent to remind him of the hearing after he failed to attend. As the Applicant failed to attend the hearing he was placed on notice that a decision will be made in his absence. This decision is based on the written materials filed.

• [11] The Respondent submits that the Applicant commenced employment on 7 October 2024 subject to a six-month probation period. It submits that Mr Tillier was spoken to on a number of occasions regarding concerns with his performance. The Respondent tendered into evidence an extract of time sheet entries from its payroll system which shows quite a number of occasions where Mr Tillier either did not punch in or punch out for a shift. Further a record of discussion referenced as a Diary Note records the discussion with Mr Tiller on 5 February 2025. The record shows that he was spoken to about the issue and both agreed and follow-up action was arranged. The record contains the Applicant's signature, and the Respondent contends that Mr Tillier was given a copy of the Record.

• [12] The Respondent tendered into evidence a statement of evidence from Ms Nancy Martin, head of People Partnering. In this statement Ms Martin says that the Respondent denies any contravention of general protections and asserts that Mr Tillier's employment was terminated during his period of probation due to performance concerns.

• [13] In relation to the performance concerns, the Respondent says it raised them with the Applicant, including password sharing, closing the warehouse without permission, instructing team members not to disclose the closure of the warehouse to the Area Manager, issues with customers and failing to clock in and out of shifts. She confirmed the Diary note of 5 February 2025 and says a more recent concern was raised on 12 March 2025 which resulted in a loss of trust making the probation period untenable.[4]

• [14] Ms Martin submits that a probation period does not require a formal performance improvement process, nevertheless the Applicant was aware of the Respondent's concerns with his performance through meetings in February and on 12 and 19 March 2025.

• [15] In relation to the alleged contraventions cited by the Applicant, the Respondent says the performance concerns had no relevance to the Applicant's sexual orientation or any absence from work.

• [16] The Respondent challenged the application on the basis that it was out of time and the Applicant has not demonstrated any exceptional circumstances to warrant an extension.

• [17] General protections applications involving dismissal must be made within 21 days.

• [18] However, s.366(2) of the Act permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

• [19] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[5] where it was held that:

"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 regular occurrence, even though it can be a on 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."[6]

• [20] I now turn to the Applicant's arguments for an extension of time in relation to each of the considerations of s.366(2)(a)-(e).

• [21] The general protections involving dismissal application was lodged with the Commission on 18 April 2025, 10 days late. Mr Tillier admits to his awareness that his dismissal took effect on 19 March 2025.

• [22] The explanation given for the delay of the application is that the Employment Separation Certificate stated that he resigned. He says the Certificate misled Centrelink because it noted a resignation and not a dismissal. The effect of this error delayed access to Centrelink payments. Consequently, he felt stressed and suffered financial hardship. He says that he contacted HR to rectify the Certificate as soon as he realised the error. He became aware that Fantastic relied on a letter of resignation which he contends is falsified. He alleges the document was developed by the Area Manager. He submits all of these vents created confusion and was he reason for the delay.

• [23] The Respondent submits that the dismissal took place in person on 19 March 2025 and a letter followed to confirm the dismissal. It submits that the Applicant has no genuine dispute other than his grievance that the Employment Separation Certificate noted a resignation instead of a dismissal. Further they accepted the Applicant's concern that the resignation was falsified, but the dismissal occurred during probation, the Applicant was aware of his dismissal and made no effort to file any claim until he encountered difficulty obtaining Centrelink payments.

• [24] Had the Applicant filed within the statutory time limit he should have filed before 9 April 2025. There is no evidence of any effort to contest the dismissal or make a claim prior to the 21-day deadline. Even on 11 April when the Applicant requested an Employment Separation Certificate no effort to make an application was made. Frankly, there is no evidence of any grievance before the evening of 13 April 2025 which was a complaint about his Certificate and not his dismissal. For the Applicant to argue that the error in the Certificate and subsequent delay in Centrelink payments causing confusion is baseless and unsupported by any evidence.

• [25] There must be a credible reason for the delay.[7] Mr Tillier's reason for delay is not credible nor sound. The dispute raised concerns Centrelink payments and not a general protection claim. In any event, there can be no confusion of the time limit to lodge an application. Therefore this consideration cannot weigh in favour of an extension of time.

• [26] The reason for the delay is one of the factors and not the only reason that is required to be an exceptional circumstance, it is all of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[8]

• [27] Mr Tillier raises the steps taken to address the Certificate but no steps were taken to dispute the dismissal.

• [28] In the evening of Sunday 13 April at 7.04pm Mr Tillier wrote an email to Fantastic advising that the Certificate issued to Centrelink was incorrect and that he was dismissed. He says that he had no intention of resigning and his support person recorded the meeting which confirms dismissal by the Store Manager. The email refers to the delay to claimable unemployment benefits through Centrelink and he demands the error to be rectified by close of business otherwise he will take further legal action.

• [29] I observe that on 14 April 2025 Fantastic commenced a process to verify whether the termination of employment was a resignation or dismissal. On 15 April it sent to the Applicant a copy of the alleged resignation letter they had on record. On instructions from the Applicant that it was a falsified document, on Thursday 17 April, Fantastic gave instructions to Payroll to reverse the termination and pay two weeks' notice. Arrangements were put in place to pay the two weeks on 24 April 2025 and Mr Tiller was sent a copy of the revised Certificate. This series of correspondence has nothing to do with contesting the dismissal.

• [30] For the above reason, I do not consider this factor to weigh in the Applicant's favour.

• [31] Mr Tillier submits that Fantastic is not disadvantaged by the delay and due to the hardship caused by incorrectly noting resignation he believes that there ought to be no benefit to the Respondent.

• [32] The Respondent accepts no prejudice to the delay.

• [33] Nevertheless, an absence of prejudice does not weigh in favour of an extension of time, therefore this consideration is neutral.

• [34] In his written submissions, Mr Tillier says that he was dismissed during his probation period without any performance management process. The alleged forged resignation letter which he says does not contain his legitimate signature prevented him from accessing government financial support. This he says violated his general protections. I observe that no submissions are made regarding the alleged contravention of s.351 sexual orientation or s.352 temporary absence. Rather submissions concern delay accessing Centrelink payments.

• [35] The Respondent submits that the Applicant was dismissed during the period of probation due to poor performance. Further the Applicant was aware of the poor performance concerns having met with him in February and March 2025. It submits there have been no contravention of any general protections.

• [36] The Applicant's submissions on merit are sparse and lacking in in terms of showing a causal link of any general protections, or his exercise of any general protections and the dismissal. The Respondent on the other hand presented evidence of the Applicant's failure to clock in and out of the time record system. This conduct is significant, naturally causing concern about accurate records and the failure of the Applicant as Assistant Manager to lead by example. This issue alone suffices to demonstrate that there were genuine concerns relevant to the reason to dismiss during the period of probation. On this basis the Application is most likely to fail. This consideration weighs against an extension of time.

Fairness between the person and other persons in a like position

• [37] The Applicant submits his circumstances were unfair, while the Respondent submits that the process to dismiss the Applicant was fair. The Respondent further submits that the alleged falsified resignation, which was overturned has no bearing on merits. I find this consideration neutral.

• [38] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

• [39] I have considered each of the matters in s.366(2), I find on balance, all of the matters do not weigh in favour of an extension. Only prejudice and fairness were neutral factors and the rest did not weigh in favour.

• [40] Accordingly, having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). The application is dismissed.

[2] Applicant's outline of argument: extension of time p.17 of the Digital Hearing Book (DHB).

[4] Respondent's witness statement p.68 DHB.

[5] [2011] FWAFB 975.

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39].

Printed by authority of the Commonwealth Government Printer