s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time required for lodgement - whether exceptional circumstances exist justifying an extension of time -satisfied that exceptional circumstances exist - extension warranted and granted - conference to be listed.

• [1] This decision concerns an application by Ms Zahra Riazi (Applicant) to deal with a general protections claim involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act). Ms Riazi is claiming, amongst other matters, that she has been adversely terminated for the protected reason of making a complaint about the behaviour of her immediate supervisor.

• [2] Ms Riazi commenced employment with Santos Limited (Respondent or Santos) as a full-time Senior Reservoir Engineer in Adelaide on 11 September 2023. This was subject to what was described as a probationary period of 6 months.

• [3] The cessation of Ms Riazi's employment with Santos was communicated in the termination of employment letter dated 20 December 2023. It is common ground that the dismissal was effective on that date. The Respondent's stated reason[1] included that the Applicant did not have the ability to carry out the duties of the role required, including reporting to her relevant leader, without a negative impact to her health and wellbeing, and that of her colleagues.

• [4] The s.365 application in this matter was filed on behalf of the Applicant in the Fair Work Commission (Commission) on 11 January 2024 at 11:43 PM ACDT (Adelaide time). It was received by the Commission through the online lodgement service at that time, which was also 12:13 AM AEDT. Applying the approach in Matthew Duncan Hatch and Woodside Energy Ltd,[2] the application is taken to have been made with the Commission on 11 January 2024.

• [5] Section 366(1) of the Act states that an application to deal with a dispute must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.366(2). Adopting 20 December 2023 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 10 January 2024.[3] The application was therefore made 1 day after the 21-day limit. I observe that in any event, given the basis of the explanation and the other considerations, the findings below would apply equally to a 2-day delay. The Applicant requests the Commission grant a further period for the application to be made under s.366(2). Principally, this request is based upon the contention that the Applicant's representative was delayed in making the application due to an error in arithmetic made by the representative (representative error). The Applicant also relies upon some other factors associated with Ms Riazi's personal circumstances and the time of year, which are dealt with below.

• [6] The Respondent opposes the extension of time request on the basis that there is no evidence to suggest the Applicant gave instructions to her representative to pursue the application before it was out of time. The Respondent relied upon Pochi and Minister for Immigration and Ethics Affairs[4] in asserting that it is the Applicant's responsibility to put material before the commission to satisfy it exceptional circumstances exist. Further, the Respondent argues there is no evidence to suggest the Applicant was proactive and took steps to enquire about the status of the application, to confirm the statutory timeframe for bringing the application, or to put the Respondent on notice of her intention to dispute the termination of her employment. The Respondent submits there is nothing exceptional about the time of year which warrants a finding of exceptional circumstance. It further argues that a finding of representative error of itself does not lead to a finding that relevant exceptional circumstances exist.

• [7] Section 366(2) of the Act allows the Commission to extend the time period within which an application to deal with contraventions involving dismissal can be made where it is satisfied that there are exceptional circumstances.

• [8] The Commission conducted a MS Teams Video Hearing to enable the extension of time matter to be determined. Both parties were represented by lawyers, permission having been granted under s.596 of the Act. Ms Riazi was represented by Ms Rogers of Tindall Gask Bentley ("TGB") Lawyers. Ms Rogers was also the lawyer responsible for preparing and lodging Ms Riazi's application.

• [9] As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations, I have determined that there are relevant exceptional circumstances warranting an extension of time. The considerations leading to, and consequences of that finding, are outlined below.

• [10] Ms Riazi and Ms Rogers provided separate witness statements in the form of statutory declarations. Ms Rogers gave sworn evidence at the hearing.

• [11] I found Ms Roger's statutory declaration lacked detail, but her oral evidence was generally sound and provided some additional context relevant to the explanation for the delay. This included the actions taken by Ms Riazi in contacting her firm in connection with the application and the timing of the meeting during which instructions were ultimately provided.

• [12] Ms Riazi's statement also lacked details about her interactions with Ms Rogers. Further, there is no medical evidence before the Commission about Ms Riazi's circumstances following the dismissal. In that light, in making my factual findings about the explanation I have only relied upon matters that have been confirmed through evidence, principally that of Ms Rogers.

• [13] The Respondent did not lead evidence. I draw no negative inference from this given the nature of the present proceedings.

• [14] It is not necessary, or appropriate, for the Commission to make findings about the broader circumstances of Ms Riazi's employment arrangements and the grounds for the dismissal, which remain very much in dispute, but are generally beyond the scope of the present matter.

1. The events relevant to the explanation for the delay in lodging the application

• [15] The Applicant was dismissed on 20 December 2023. However, this timing did not prevent Ms Riazi seeking advice about contesting her dismissal. Ms Riazi arranged and attended an appointment with her lawyers for that purpose on 21 December 2023. On Friday 22 December 2023, TGB Lawyers closed for the Christmas and New Year period and Ms Rogers commenced a period of annual leave. The firm reopened on Thursday 4 January and Ms Rogers returned from annual leave on Monday 8 January 2024.

• [16] The evidence is that the Applicant emailed her lawyers while Ms Rogers was on leave. Further, Ms Riazi emailed them again on the 8 January 2024 and sought a meeting.

• [17] Ms Rogers had at some point calculated the 21-day time period and wrongly concluded that it would end on 11 January 2024. Ms Riazi was advised of that (erroneous) conclusion, and it is tolerably clear that Ms Rogers' conclusion influenced when the subsequent appointment to confirm instructions was held.

• [18] The meeting between Ms Riazi and Ms Rogers was scheduled for and conducted on 11 January 2024. It was during this meeting that the instructions were confirmed for this application to be lodged.

• [19] The Applicant was proactive and prompt in obtaining legal advice after her dismissal and was diligent in seeking to have the application filed.

• [20] Section 366 of the Act relevantly provides as follows:

"s.366 Time for 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."

• [21] Section 366(2) of the Act provides the Commission with discretion to extend the time for lodgement beyond the 21-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take into account the considerations outlined in paragraphs (a) to (e) of s.366(2) of the Act. I have done so in this matter.

• [22] Although the statutory discretion in s.366(2) requires the relevant considerations to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act. In assessing these matters, I have considered the ordinary and natural meaning of "exceptional circumstances" and whether the combination of factors when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, or very rare but exceptional circumstances are not regularly, routinely or normally encountered.[5] The test of exceptional circumstances also represents a "high hurdle".[6]

• [23] Where "exceptional circumstances" are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in s.366(2). This will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that the time for making the application should be extended.[7]

• [24] The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an acceptable or reasonable explanation for the delay. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant's favour; however, all of the circumstances must be considered on their own merits.[8]

• [25] It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[9] The delay in this matter is 1 day and this is the focus of the present consideration.

• [26] Further, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[10]

• [27] I have earlier made detailed findings bearing upon this consideration.

• [28] The primary explanation for the delay was in essence that a representative error was made by the Applicant's representative when calculating the date by which the application was to be made and this led to the delay in making the application.

• [29] The Applicant also relied on what she described as her mental health, the Christmas shutdown period, and the time her representative was on annual leave as contributing factors to the delay.

• [30] It is convenient to deal initially with the contentions concerning alleged representative error.

• [31] In Officeworks Ltd v David Parker,[11] the Full Bench determined that circumstances of representative error, where the applicant was effectively blameless, may constitute an explanation relevant to a finding of exceptional circumstances under s.366(2), subject to the other statutory considerations in ss.366(2)(b) to (e) of the Act. It stated:

"[25] The approach in Clark's Case was summarised in Davidson's Case as follows:

"In Clark, the Commission decided that the following general propositions should be considered 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.""

• [32] In this case, the representative error made by Ms Riazi's representative largely caused the delay in making the application. Ms Riazi was diligent and proactive in seeking legal advice and in her communications with her representative. Although the Applicant did not give instructions for filing an application within time, this of itself was a direct consequence of the representative error. That is, it is tolerably clear based upon the evidence of Ms Rogers that the timing of the meeting during which the instructions were given was influenced by the mistake over the lodgement time period. Ms Riazi had contacted her lawyer a number of times and sought the meeting to provide the instructions sufficiently ahead of the expiry of the 21-day period for the application to be prepared and filed within time, if Ms Rogers had acted more promptly.

• [33] The fact of the intervening Christmas and New Year period and the annual leave taken by Ms Rogers may have been a fact, but were not the reasons for the delay in filing and I would not consider that they contribute to a finding of an exceptional circumstance.

• [34] There is no evidence of Ms Riazi's mental health at the time, and I place no weight on that contention for present purposes.

• [35] I observe that the Applicant's reason for delay is relevant to a finding of exceptional circumstance. Further, I consider this to be a satisfactory and reasonable explanation for the delay in lodging the application.

• [36] This consideration weighs in favour of a finding of exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [37] This is, in part, related to the explanation for the delay discussed above.

• [38] The material presently before the Commission indicates that Santos invited the Applicant to a meeting on 20 December 2023 to discuss its concerns and provide her with an opportunity to provide any additional information relevant to the decision regarding her ongoing employment. The applicant did not attend that meeting.

• [39] Santos contends that there is no evidence Ms Riazi took any action to dispute the dismissal, including by putting it on notice to that end, and this weighs against any extension being granted.[12]

• [40] Although Ms Riazi did promptly seek legal advice and assistance and ultimately instructed that the application be made, she did not take any other action to dispute the dismissal.

• [41] This consideration marginally weighs against a finding of exceptional circumstances.

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

• [42] The Respondent has not contended that it suffered prejudice as a result of the delay.[13] This is relevant[14] and I have taken this into account in my assessment of exceptional circumstances noting that the absence of prejudice to the employer is not of itself a sufficient basis to warrant an extension of time.[15]

• [43] The merits of the substantive application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[16] Further, the primary consideration is whether the applicant has an arguable case,[17]or as it has previously been stated, it is sufficient for the applicant to establish that the substantive application was not without merit.[18]

• [44] The facts of the substantive matter are in dispute. In particular, the matters taken into account by the Respondent in making the decision to dismiss the Applicant are contested and these would be significant given the nature of the application. It is sufficient for present purposes to find that Ms Riazi has an arguable case which is not without merit under the General Protections provisions of the Act, based upon her application and associated contentions. I observe for completeness that I would broadly make the same observations about Santos's case, based upon its own contentions.

• [45] Given the nature of this consideration, this is a factor weighing marginally in favour of exceptional circumstances.

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

• [46] Nothing of relevance has been raised in this regard.

• [47] The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.

• [48] Having considered all the circumstances of this matter and the considerations provided by s.366(2) of the Act and weighed them accordingly, I am satisfied that there are exceptional circumstances. Further, given the exceptional circumstances found, it is fair and equitable that the time for making the application should be extended.

• [49] Accordingly, I hereby grant an extension of time for the making of this application to enable it to have been validly made under s.366(2) of the Act.

• [50] The application will be listed for a conference as required by s.368 of the Act.

H Rogers of Tindall Gask Bentley, with permission, for Ms Riazi, the Applicant.

P Lawler of Ashurst, with permission, for Santos Ltd.

[1] Termination letter of 20 December 2023.

[2] [2023] FWCFB 51.

[3] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).

[4] Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 ,482.

[5]Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, 16 February 2011 per Lawler VP, Sams DP and Williams C.

[6] George Georgiou v Transurban Ltd [2022] FWCFB 155 at [17] - although stated in the context of a s.394 unfair dismissal application, this remains relevant given the close nature of the considerations involved.

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

[11] [2014] FWCFB 5779.

[12] Respondent's submissions at [11].

[13]Respondent's submissions at [12].

[14] Brisbane South Regional Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 as considered in Jervis v Coffey Engineering Group Pty Ltd AIRCFB PR927201, 3 February 2003 at [16].

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

[16] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14].

[17] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].

[18] Telstra Network Group v Kornicki (1997) 140 IR 1 at [11].

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