Abhilash Tripathi v Globalization Partners Pty Ltd
[2023] FWC 600
•14 MARCH 2023
| [2023] FWC 600 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Abhilash Tripathi
v
Globalization Partners Pty Ltd
(C2022/8076)
| DEPUTY PRESIDENT CROSS | SYDNEY, 14 MARCH 2023 |
Application to deal with contraventions involving dismissal – whether application out of time - application filed out of time – circumstances not exceptional - application dismissed.
This decision concerns an application by Mr Abhilash Tripathi (the Applicant) for a general protections remedy pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), arising out of the Applicant’s allegations that the Applicant had been dismissed from his employment with Globalization Partners Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.
In the Application, the Applicant claimed that he was notified of his dismissal on 14 November 2022, and that the dismissal took effect on 30 November 2022. It is a matter of record that the Application was made on 6 December 2022.
In response to the Application, the Respondent raised the jurisdictional objection that the Application was filed out of time as, it alleged, the dismissal took effect on 14 November 2022. Pursuant to s.366(1) of the Act, General Protections applications involving dismissal must be made within twenty-one (21) days after the dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow.
If the dismissal took effect on 14 November 2022, the Application has been lodged outside of the time prescribed, and one day after the last day on which such an application could have been made, being 5 December 2022. Conversely, if the dismissal took effect on 30 November 2022, the Applicant was well within the timeframe to file the Application.
On 27 January 2023, directions were issued to program the manner in which the
Application was to proceed (the Directions). The Directions required the filing of materials for the determination of whether the Applicant was out of time, and if so, whether he would be allowed an additional period within which to lodge the Application.
The parties complied with the Directions. In particular:
(a) On 8 February 2023, the Applicant filed an Outline of Submissions together with supporting attachments;
(b) On 22 February 2023, the Respondent filed an Outline of Submissions and supporting attachments; and
(c)On 1 March 2023, the Applicant provided a Submissions in Reply with attachments.
On 16 March 2023, the matter was the subject of a hearing (the Hearing) at which each party supplemented their written submissions with further oral submissions.
Background Facts
I note that where times of conveyance of emails have been recorded in this recitation of facts, I have attempted to record the Australian Eastern Daylight Time (AEDT) of those emails. I acknowledge, however, that some emails before me emanated from different time zones that are not clearly recorded in the emails.
The Applicant executed a Contract of Employment (the Contract) with the Respondent on 15 May 2022, with employment commencing on 30 May 2022. He was employed with the Respondent as a “Partner Manager” based in Sydney, Australia.
The Contract contained various relevant provisions, including the following:
(a) Clause 2 provided for a probationary period, as follows:
2.1. The first 3 months following the Commencement Date shall be a probationary period (“Probationary Period”) and ongoing employment is subject to you successfully completing the Probationary Period.
2.2. Either party may terminate the employment during the Probationary Period by giving the other party one weeks’ notice in writing. The Company may, in its sole discretion, elect to make a payment of base salary in lieu of notice.
…
(b) Clause 5 Award Coverage provided:
5.1. Your employment is covered by the Clerks Private Sector Award 2020 (“Award”); however, the Award does not form part of this Agreement. A copy of the award is available for you to review here: -agreements/awards/modern-awards/modernawards-list or you can contact a member of human resources at the Company at any time to obtain a copy.
5.2. In accordance with section 330 of the Fair Work Act 2009 (Cth), this Agreement constitutes an undertaking by the Company to pay you a guarantee of annual earnings if your total salary (excluding superannuation) exceeds $158,500 (or an amount as indexed annually) (“high income threshold”).
As a result of this Agreement, if your employment is covered by a modern award, that modern award does not apply to you for the period during which your total salary package (less superannuation) exceeds the high-income threshold as applicable from time to time.
5.3. To the extent permitted by law, if any award or statutory entitlement requires the Company to provide you with any benefit (including but not limited to payment for annual leave loading, pay period specifications, overtime, penalty rates or allowances under any modern award that may be deemed applicable to your employment, and/or any other applicable conditions under any legislation, award or certified/collective/enterprise agreement other than superannuation}, you agree that:
5.3.1. your total fixed salary package is set off against, applied to, and absorbs that benefit;
5.3.2. that benefit forms part of your total fixed salary package;
5.3.3. your total fixed salary package will not change; and
5.3.4. without reducing your total fixed salary package, the Company may vary your total fixed salary package to incorporate that benefit.
…
(c) Clause 11 provided for termination of employment, as follows:
11. TERMINATION OF EMPLOYMENT
11.1. After successful completion of the Probationary Period, your employment may be terminated by you or the Company by providing the other with written notice as set out below:
Length of your continuous service Notice required
Not more than 1 year 1 week
More than 1 year but less than 3 years 2 weeks
More than 3 years but less than 5 years 3 weeks
More than 5 years 4 weeks
11.2. If your notice period is 4 weeks or less, and the Company terminates your employment and you are aged over 45 and have at least two years of continuous service as at the date of termination, the Company will provide you with an additional week’s notice on termination.
11.3. A notice given to a party under this Agreement shall be in writing and may be delivered (i) by hand, (ii) by post to the party at the address given for that party in this Agreement, (iii) to the work or (in the case of a notice given to the Employee) the personal email address of that party, or (iv) as otherwise notified in writing to the other party.
11.4. A notice given by email shall be deemed to take effect one hour after it is sent, a notice sent by first class post shall be deemed to take effect on the next working day and notice sent by courier upon delivery at the address in question.
11.5. The Company may pay your salary in lieu of part or all of the notice period.
11.6. The Company may terminate your employment with immediate effect and without payment in lieu of notice, if you engage in serious misconduct including but not limited to where you:
11.6.1. commit any serious or persistent breach of this agreement including, without limitation, disobedience, dishonesty, serious or persistent breach of duty or serious or persistent neglect of duty;
11.6.2. are charged with a criminal offence which in the reasonable opinion of the Company will detrimentally affect the Company;
11.6.3. are declared bankrupt;
11.6.4. fail to observe or perform any of the duties or obligations imposed on you under this agreement; or
11.6.5. cease to be available to work in Australia.
11.7. The Company may, at its absolute discretion, place you for the whole or any part or parts of your notice period (whether notice is given by the Company or by you, or if you seek to resign without giving notice) on garden leave (“Garden Leave”).
11.8. During Garden Leave, unless otherwise notified by the Company, you must:
11.8.1. not attend any of your places of work or any other premises of the Company or any Group Company;
11.8.2. not carry out any work on behalf of the Company or any Group Company;
11.8.3. return to the Company all documents and other property (including computer hardware and software) belonging to the Company or any Group Company including but not limited to Confidential Information;
11.8.4. not communicate with customers, clients, or suppliers or any prospective customers, clients, or suppliers of the Company or any Group Company;
11.8.5. not communicate with any agent, shareholder, broker, professional adviser, or any other business contact of the Company or any Group Company;
11.8.6. not communicate with employees, workers, consultants, or officers of the Company or any Group Company; and
11.8.7. take any remaining leave entitlement.
11.9. provided that the Company shall continue to pay you your full base salary and to make available to you all other contractual benefits during Garden Leave.
The probationary period was extended by three months by apparent agreement on 8 August 2022. The parties’ various reasons for that extension were:
(a) The Applicant submitted, that the Respondent had been “angling” to terminate his employment during the first three months of his employment because he had pointed out a “Guarantee of annual earnings” clause in the Contract. The Applicant believed the Respondent wanted him to resign so that the “Guarantee of annual earnings” clause would lapse automatically. The Applicant submitted that the Respondent kept issuing verbal threats in the first three months of employment, and during the next three months to obtain the resignation.
(b) The Respondent submitted, that during the first three months of the Applicant’s employment, the Applicant was doing the groundwork required for their position, but had not closed any Master Agreements, and therefore the Respondent was unable to assess whether or not the Applicant was able to perform the duties of the position. In order to give the Applicant further opportunity to demonstrate his skillset and that he could successfully perform the required job duties and responsibilities of the Partner Manger position the probationary period was extended for three months.
Contemporaneous documents, being an email exchange between the Applicant and Mr Goldblatt of the Respondent on 8 August 2022, support the Respondent’s version of the reason for the extension of the probationary period.
The Respondent apparently sought to meet with the Applicant on 10, 11 and 14 November 2022, however the Applicant did not attend those meetings. The Applicant stated he was attending a Venture Capital conference. At 11.59am on 14 November 2022, the Respondent sent the Applicant an email (the First 14 November Email), a letter (the First Termination Letter), and a Release Agreement (the Release). The relevant content of those documents were as follows:
(a) The First 14 November Email, after recording the failed attempts to meet with the Applicant, advised:
“We have difficult news to share. We undertook a realignment of our business model in support of our strategy that affected team members across all functions. Unfortunately, we have made a difficult decision to eliminate your role from the company. I know this is difficult to hear and I want to make sure we give you the space and time to process. Please know this decision is not a reflection of you as a human being or your contributions.
I understand this is a shock and a lot to process. We have put a lot of careful consideration and thought into the transition package and support to help you move forward. I am going to list some high-level details here, but all your documents are attached in this email as well.
Payments - Your last day of employment will be November 30, however, effective as of today, November 14, you will be placed on Garden Leave and released from performing any work. You will be paid your regular salary through November 30th, your accrued and unused PTO.
Severance/Separation -
We are able to offer you 2 months’ base salary, which is conditional upon your signing a Release Agreement with the company.
Benefits
·We also will be extending EAP (employee assistance program) access and Calm app access for 3 months for your needs.
…”[Emphasis added]
(b) The First Termination Letter provided:
“We regret to inform you that as a result of a realignment of our business model and strategy, your position with Globalization Partners Pty Ltd (the “Company”) has become redundant. The Company has attempted to discuss this matter with you on three separate occasions, and you have refused to join meetings arranged by your manager and the People Team. Accordingly, pursuant to your employment contract with the Company, dated May 15, 2022 (the “Contract”), we are providing you notice of the termination of your employment, which employment will end effective November 30, 2022 (the “Termination Date”).
You are hereby placed on Garden Leave effective immediately, today November 14, 2022, and are not required to perform any job duties or responsibilities until the Termination Date.
This letter explains what will happen next, including how you can obtain additional payments and other benefits subject to the terms and conditions of the enclosed Release Agreement. We ask that if you’d like to accept the offered severance package that you sign and return the Separation document by 5pm on November 18, 2022.
You will receive the following end of service payments:
• Salary until your last day November 30, 2022, which includes your 1-week notice period;
• Encashment of accrued but unused vacation leave of 10 days;
• Any commission payments that have been earned subject to the terms and conditions of the commission plan.
These amounts may be subject to tax, and final amounts will be paid into your nominated bank account.
Please note that any business expenses that you properly incurred and submitted will be paid out in accordance with the Company’s business expense reimbursement policy. All payments are subject to statutory and applicable payroll deductions.
The Company would like to offer you an additional ex-gratia payment and additional benefits subject to the execution and terms and conditions of a Release Agreement, which you will find enclosed.
…”
(c) The Release provided, among other benefits, an ex-gratia separation payment of two months base salary. The Recitals of the Release provided:
A.Employee was employed by Globalization Partners from or about May 30, 2022.
B.Employee’s role with Globalization Partners will become redundant on November 30, 2022 (last day of employment). Globalization Partners made the decision to realign its business model in support of the company strategy and due to those changes the Employee’s position is being made redundant.
C.Globalization Partners notified Employee of the redundancy on November 14, 2022. Globalization Partners and Employee have reached agreed terms of separation as outlined herein.
D.As of November 14, 2022, the Employee is released from performing any work and will be placed on garden leave until the last day of employment.
E.Employee will be paid at Employee’s regular rate through the last day of
employment.
F.Employee and Globalization Partners have reached agreed terms of separation as outlined herein.
G.Without any admission of liability, the parties have agreed to enter into this release agreement to finalise all matters between them and any Claims that Employee may now have, or which may arise as a result of the Employment or the termination of the Employment.
[Emphasis added]
After receiving the First Termination Letter the Applicant emailed the Respondent as follows:
Bob / Jackie,
Refer the below mail.
Unfortunately, you have missed out important agreed contractual obligations under the employment contract and under the Australian employment law.
Suggest you review it again to check those obligations and include them within the offer made below.
Since you are in Australia, I am happy to discuss this in person this evening.
Cheers, Abhi
The Respondent claimed that it became aware that the Applicant may have committed a breach of company policy. From the Respondent’s submission it appeared, though was not certain, that breach became apparent after sending the Applicant the First 14 November Email, the First Termination Letter, and the Release.
As a result, the Respondent’s IT Security team initiated an investigation. After 11.59pm on 14 November 2022, when the First Termination Letter was issued, the Respondent’s IT Security team confirmed that the Applicant has allegedly breached company policy and committed a serious violation by downloading several sensitive documents which contained confidential and proprietary information of the Respondent to his personal Google Drive without authorization on 10 November 2022 and 11 November 2022. Those documents that were allegedly taken by the Applicant without consent contained sensitive client pricing information.
Consistently with the Applicant’s submission, there is no evidence of the Respondent ever communicating an alleged breach of policy prior to the Respondent filing their Form F8A Response in these proceedings.
Based on the alleged serious violation of company policy, the Respondent said it made the decision to terminate the Applicant’s employment effective immediately. At 2.45pm on 14 November 2022, the Respondent sent the Applicant a further email (the Second 14 November Email), a letter (the Second Termination Letter), and a Release Agreement (the Release). The relevant content of those documents was as follows:
(a) The Second 14 November Email, after recording the failed attempts to meet with the Applicant, advised:
“Dear Abhi,
We appreciate your response and can assure you that G-P has complied with all requirements under Australian law.
This is to notify you, that you will not pass your probationary period, which was extended to November 30, 2022.
The documents sent to you earlier are void, and your termination notice is attached. It is expected you will not attend the G-P dinner this evening, nor any other G-P events.
You will receive an email shortly on the return of your G-P assets and equipment, including your laptop. We expect your cooperation in the prompt return of G-P’s equipment.
If you’d like to discuss further, I’m happy to have a call with you. I am in Boston, MA, so ET time zone. I’d be happy to suggest some times that are convenient if this is your desire.
Warm Regards,
…”[Emphasis added]
(b) The Second Termination Letter provided:
Dear Abhilash,
We regret to inform you that Globalization Partners hereby provides written notice in accordance with your employment agreement that your employment with the Company is being terminated, effective immediately, today November 14, 2022. Your probationary period with the Company is due to end November 30, 2022. Unfortunately, you will not pass your probationary period and the Company is terminating your employment prior to the expiration of the probationary period.
Your last day of employment will be effective immediately, today, November 14, 2022.
You will receive the following end of service payments:
- Salary until your last day November 14, 2022,
- Payment in lieu of your 1 week notice period;
- Encashment of accrued but unused vacation leave of 10 days;
- Any commission payments that have been earned subject to the terms and conditions of the commission plan.
These amounts may be subject to tax, and final amounts will be paid into your nominated bank account.
Please note that any business expenses that you properly incurred and submitted will be paid out in accordance with the Company’s business expense reimbursement policy. All payments are subject to statutory and applicable payroll deductions.
The Company would like to offer you an additional ex-gratia payment and additional benefits subject to the execution and terms and conditions of a Release Agreement, which you will find enclosed. We ask that if you’d like to accept the offered severance package that you sign and return the Separation document by 5pm on November 18, 2022.
Apparently after receiving the Second 14 November Email and the Second Termination Letter, and between 3.00 and 4.07pm on 14 November 2022, the Applicant sent the following three emails to the Respondent:
(1) November 14, 2022 3:00 PM
Bob / Jackie,
Could I please check if you have reviewed the employer obligations under clause 5 of the employment contract? Please let me know on the same as soon as possible.
Cheers, Abhi
(2) On 14 Nov 2022, at 4:07 pm.
Jackie / Bob,
In addition, Please also note advice that effective date of termination cannot be changed once given. Hence the earlier notice of termination with date of 30 November stays and was read and understood well by me.
Thank you.
Cheers, Abhi
[Emphasis added]
(3) On 14 Nov 2022, at 3:06 pm,
Jackie
Please refer to clause 5 and particularly clause 5.2 of the employer guarantee and obligations under the Section 330 of the Fair Work Act 2009. This is missing from your end and is a lawful requirement.
Please let me know once you have reviewed it. Thank you.
Cheers, Abhi
In response to the above three emails, at 5.39pm on 14 November 2022, the Respondent replied to the Applicant as follows:
Dear Abhi,
We are aware of the employer obligations in Australia and have complied with them. You did not pass your probationary period and your employment was terminated.
If you are interested in receiving a severance package as detailed to you in the DocuSign email previously sent, you would need to sign and return the Release Agreement by November 18, 2022.
Regards,
The Respondent submitted that it “processed” the Applicant’s final payments on 14 November 2022, which included payment in lieu of 1 weeks’ notice pursuant to the Contract. The Applicant submitted he received his last payslip on 22 November 2022, and his last salary payment on 21 November 2022. I prefer the Applicant’s submission as it is supported by an extract of his final payslip that lists the payment date of 21 November 2022.
The Applicant made an application for Unfair Dismissal to the Commission on 5 December 2022. In consultation with the Commission the Unfair Dismissal Application was “replaced” with this General Protections application on 6 December 2022.
Dismissal Date
The issue of dismissal date arises from the Applicant’s email of 14 November 2022, at 4.07pm, where he advised the Respondent “Please also note advice that effective date of termination cannot be changed once given. Hence the earlier notice of termination with date of 30 November stays and was read and understood well by me.” The position of the Applicant was that the dismissal took effect on 30 November 2022, pursuant to the First Termination Letter, and so the Application was not out of time. At the Hearing, the Applicant referred to the judgment of the Full Court of the Federal Court in Melbourne Stadiums Ltd v Sautner (Sautner).[1] The Respondent submitted the Applicant was dismissed on 14 November 2022, pursuant to the Second Termination Letter.
(a) Sautner
In Sautner, the contract provided (at Clause 7.1):
Either pay [sic] may terminate this Agreement by giving written notice of the duration [6 months] referred to in Item 5 of the Schedule to the other party. The Company may, in its absolute discretion, elect to terminate this Agreement by providing remuneration in lieu of the appropriate term of notice.
Clause 7.2 provided that the employer could summarily terminate the contract immediately by notice in writing without any payment in lieu of notice for cause.
On 3 June 2013, the employer purported to terminate the contract due to redundancy under clause 7.1 and said that such termination was immediate. The termination letter stated that the employer would pay six months’ remuneration in lieu of notice, and also offered certain redundancy payments. A deed of release accompanied the letter but was never executed by either party. This deed promised payment under clause 7 including six months’ pay in lieu of notice of termination but this was expressed to be subject to the employer receiving back the deed duly executed by Mr Sautner.[2]
On 20 June 2013, however, the employer asserted that it was and had been entitled to terminate the contract for cause under clause 7.2. Accordingly, it asserted, in reliance on the principle outlined in Shepherd v Felt Textiles of Australia Ltd,[3] that its termination of the contract took effect for cause under clause 7.2, rather than under clause 7.1.
The Court held that termination under the employment contract required, in order to be effective, payment of the six months’ pay in lieu of notice. This never occurred and there was therefore no termination under clause 7.1.[4] At the time that Mr Sautner’s misconduct was discovered his employment contract was still on foot. Given that the employment contract was still on foot, the employer was entitled to terminate the agreement under clause 7.2, as a consequence of which Mr Sautner was not entitled to remuneration in lieu of notice or other benefits.[5]
(b) Consideration Regarding Dismissal Date
Clause 11.5 of the Contract provided for termination on notice, or “The Company may pay your salary in lieu of part or all of the notice period.” In the First 14 November Email the Respondent provided termination on notice with the “last day of employment” being 30 November 2022, after the Applicant served a period of Garden Leave with payment of “your regular salary”. The Contract, and indeed the employment relationship, were still on foot when, apparently two hours and 46 minutes later, the Respondent terminated the Contract for alleged cause at 2.45pm on 14 November 2022.
The dismissal was effected by the Second 14 November Email and the Second Termination Letter, however, the difficulty with those two pieces of correspondence is that while the Respondent asserts the termination was for alleged serious violation of company policy, presumably in accordance with clause 11.6 of the Contract, there is not one mention of such alleged misconduct in correspondence with the Applicant. The title of the Second Termination Letter refers to “Redundancy” (though in the Hearing the Respondent submitted that was an error), the letter refers to the Applicant not passing the probationary period, and the Applicant is offered a severance package that was apparently on the same terms as the severance package offered before the identification of the alleged serious violation of company policy.
Nonetheless, a dismissal takes effect when it is communicated to the employee who is being dismissed by written notice of the day of the termination. Where payment in lieu of notice is made the dismissal takes effect immediately as the employment relationship has ended.[6] While I note the payment in lieu of notice was not actually made until 21 November 2021, I consider the terms of the Second 14 November Email and the Second Termination Letter as being clear in conveying the dismissal of the Applicant on 14 November 2022. I do not consider Sautner is relevant to my consideration as the Contract did not require payment for effective termination by payment in lieu.
Consideration
As outlined above, s.366(1) of the Act states that an application for a general protections remedy 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). As I have determined that the dismissal took effect on 14 November 2022, the period of 21 days ended at midnight on 5 December 2022. The Application was therefore filed one day outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.366(2). The Respondent opposes this request.
The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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 can be considered exceptional.
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must consider the following:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Reason for the delay
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. 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 the applicant’s favour, however all of the circumstances must be considered.[8]
Quite clearly, and with some substance, the Applicant was confused regarding the date his dismissal took effect. He had been advised of two termination dates on 14 November 2022, and the Second Termination Letter contained confusing justification for termination. At 4.07pm on 14 November 2022, the Applicant advised the Respondent:
“In addition, Please also note advice that effective date of termination cannot be changed once given. Hence the earlier notice of termination with date of 30 November stays and was read and understood well by me.”
The Respondent submitted the above correspondence constituted acknowledgment by the Applicant of receipt of the Second Termination Letter, and that the Applicant further indicated that he understood the effect of immediate dismissal outlined in the Second Termination Letter. I reject that submission. The Applicant was clearly, albeit erroneously, asserting that the Respondent could no rely of the Second Termination Letter. While it is correct to observe that an Unfair Dismissal application filed within time cannot be “replaced” by a General Protections application made out of time, that concept of replacement also arises from the Applicant’s misunderstanding of the dismissal date.
Having regard to the above, I am satisfied that the Applicant has provided an acceptable explanation for all of the period of the delay, and that is a factor that weighs in favour the Applicant in this matter.
Action taken to dispute the dismissal
The Applicant submitted, without correction, that he was in constant communication with the Respondent between 14 November and 7 December 2022, sending over 24 emails to seek a resolution. I consider those steps to constitute ‘action to dispute the dismissal’. This circumstance weighs in favour of the Applicant and a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I therefore consider this to be a neutral consideration.
Merits of the application
The Act requires me to consider the merits of the Application in considering whether to extend time. It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protection’s application.
Regarding fairness as between the applicant and other persons in a similar position, neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant and the Respondent, I am satisfied that there are exceptional circumstances. Being satisfied that there are exceptional circumstances, I may consider whether to allow a further period for the Application to be made.
Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[9] I am satisfied that it is appropriate to extend the period for the Application to be made to 6 November 2022.
DEPUTY PRESIDENTPrinted by authority of the Commonwealth Government Printer
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[1] (2015) 229 FCR 221.
[2] Sautner at [122] and [179].
[3] (1931) 45 CLR 359.
[4] Sautner at [123].
[5] Sautner at [133].
[6] Siagian v Sanel Pty Ltd [1994] TRCA 2.
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[9] Fair Work Act 2009 (Cth) s 577.
Printed by authority of the Commonwealth Government Printer
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