Alen Dupljak v Women in Construction Pty Ltd

[2024] FWC 903

[2024] FWC 903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Alen Dupljak
v

Women In Construction Pty Ltd

(C2024/1263)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 9 APRIL 2024

Application to deal with contraventions involving dismissal – extension of time – exceptional circumstances not found – application dismissed.

Introduction

1. On 27 February 2024, Mr Alen Dupljak made a general protections application involving dismissal (the Application). He contends that his dismissal by the Respondent on 5 February 2024 contravened the general protections provisions in Part 3-1 of the Fair Work Act2009 (Cth) (the Act).

1. Section 366 of the Act states that an application for a general protections application involving dismissal 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). 

1. The period of 21 days ended at midnight on 26 February 2024. The application was therefore filed one day outside the 21-day period.

1. For the application to proceed, Mr Dupljak requires the Commission grant a further period of time within which to bring his application.

1. The question of whether to grant additional time was dealt with at a hearing on 5 April 2024, at which the Applicant gave evidence in support of his application, along with Mr Wayne Carter.

Extension of time

1. Additional time can be allowed under section 366(2) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]

1. The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2] 

1. In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

   ·   the reason for the delay,

   ·   any action taken by the person to dispute the dismissal,

   ·   prejudice to the employer (including prejudice caused by the delay),

   ·   the merits of the application, and

   ·   fairness as between the person and other persons in a similar position.

1. In assessing whether there are exceptional circumstances, I am required to consider and give appropriate weight to each of these considerations. 

1. 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.[3]

Relevant factors

Reason for delay: 

1. The Act does not specify what reason for delay might justify 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.[4]

1. The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[5] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.[6]

1. The Application stated that Mr Dupljak was notified of the dismissal on 5 February 2024, and that it took effect on 6 February 2024.  Had this been the case, the Application would have been made within the 21-day period. However, at the hearing the Applicant confirmed that this was not the case and that the dismissal took effect on 5 February 2024, and was made one day outside the prescribed period.

1. The Applicant’s primary explanation for the delay is the chronic health issues exacerbated by stress that he suffers from.[7] The Applicant provided a medical certificate from Dr Fiona Hong dated 2 April 2024 stating that he "suffers from Chronic Fatigue Syndrome and ADHD, and due to some family and work related stress, he has been unable to complete his work duties on time.”[8]  Mr Dupljak also provided a record of his medical conditions: Depression (18/08/2017); Chronic fatigue syndrome (12/05/2006); Attention deficit hyperactivity disorder (2000).[9]  These records evidence that Mr Dupljak has been dealing with chronic health conditions for an extended period of time. Mr Dupljak also gave evidence that he attended his general practitioner on 22 February, 20 March, and 2 April 2024, with each appointment taking more than a week’s notice to secure.  The evidence does not establish that Mr Dupljak was incapable of making an application within time and, as can be seen below, he clearly was.

1. Mr Dupljak also gave evidence that his own medical conditions were exacerbated by the need to care for his disabled mother and the financial strain he was under because he has had no income in recent months as his disability pension was cancelled because he has been unable to attend Centrelink in person.[10]

1. Mr Dupljak also gave evidence that he had made an unfair dismissal application within the 21-day period. The Commission’s case management system confirms that an application pursuant to section 394 of the Act was made on 25 February 2024, two days before the Application was made on 27 February 2024.  On 1 March 2024, the Applicant was advised by staff of the Commission that he was not able to proceed with both applications.  The Applicant then elected on 4 March 2024 to discontinue the unfair dismissal application and proceed with the Application.[11]

1. Mr Dupljak also stated:

“Misunderstood when dates applied, called Fair Work for clarification but could not be given advice specific to my case. Lodged initial unfair dismissal claim within the 21-day timeframe before submitting the second application for general protection rights one day late. However, general information regarding potential avenues was given, which prompted lodging the second claim for general protections which appeared more relevant based on conduct. This meant cancelling my initial unfair dismissal claim, as to my understanding I couldn’t process both claims at once.

Lodged application for free legal advice through commission but this process took more than two weeks to come to fruition as it appears demand was very high. They suggested there was reasonable grounds for my claim, and that considering the reasons stated above and that the application was one day late while another claim had already been filed, an exemption to the 21-day timeframe would be considered as there were genuine attempts made to comply.”[12]

1. At the hearing, Mr Dupljak’s evidence was that he believed he first made contact with the Commission regarding legal advice on 27 March 2024, which was one month after he had made the Application, and approximately 3 weeks since he had discontinued his unfair dismissal application.

1. Mr Carter, who had directly employed the Applicant, also gave evidence in support of the Applicant. His evidence was that the Applicant was employed with the knowledge of both his health and caring responsibilities. At the hearing, his evidence was that the Applicant called him the day after he was notified that he had been made redundant (which would have been 6 February 2024) and discussed the matter with him.

1. Having considered this material, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging his application.  I am satisfied that the Applicant had significant health conditions and caring responsibilities and other strains that affect his capacity. However, despite these challenges he was nonetheless capable of making an application within the 21-day period.  He successfully navigated and completed an unfair dismissal application within time.  The application process for a general protections application involving dismissal is not more difficult than making an unfair dismissal application, which he succeeded in doing.  There was no explanation as to why he made the Application two days after he made the unfair dismissal application. In the circumstances, I am unable to conclude that the Applicant’s chronic health and other challenges were so significant that he was unable to make the Application within time. He had also been able to speak with Mr Carter and discuss the situation with him within a day of his dismissal taking effect. 

1. Ultimately, Mr Dupljak made a decision to discontinue his ‘within time’ unfair dismissal application and continue with the Application. That is a forensic choice that he made, which required him to demonstrate exceptional circumstances in order to be granted additional time within which to make his application.

1. In those circumstances, I am not persuaded that the Applicant has provided an acceptable, credible, or satisfactory explanation for the delay. This weighs against a conclusion that there are exceptional circumstances.

Whether the Applicant took action to dispute the dismissal

1. The Applicant had taken action to dispute the dismissal, by making an unfair dismissal application.  This is a consideration that weighs in favour of a finding of exceptional circumstances.

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

1. There is no evidence of any particular prejudice to the Respondent. However, the absence of prejudice is not in and of itself an exceptional circumstance, nor does the short period of delay justify such a conclusion. I have treated this as a neutral consideration.

Merits of the application

1. The merits of the application are a relevant consideration in determining whether to exercise the discretion to extend the timeframe.  For example, a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.

1. It is not the function of the Commission, in interlocutory proceedings such as an application for an extension of time, to determine, fully, the merits of the case. I note that the Respondent maintains a jurisdictional objection, that the dismissal of the Applicant was a case of genuine redundancy. The purpose of the consideration here is to make a general assessment, and it is done in the context of, largely, uncontested, untested assertions that are made and it is not possible to make any final and substantive determinations.

1. The Applicant was employed as an office clerk on a casual basis for approximately 12 months.  The Respondent is a small business with 10 office employees.  It contends that business slowed rapidly over summer and that the trading conditions are very difficult. The Respondent contends that the Applicant’s role is now being performed by ongoing employees to save costs and reduce losses.  The Applicant contends that there had been no prior communication regarding his performance or conduct and that casual staff had been recently engaged, and he had more experience in roles that were being staffed. Mr Dupljak contends that he was dismissed on the same day that he emailed seeking clarification about his terms and conditions of employment, and that his questions regarding pay and conditions and changes to roles and responsibilities were ignored by the Respondent.

1. At this point, the Applicant has an apparent case and the Respondent has an apparent defence, and the merits of the case will depend on the detailed evidence of the parties.

1. In the circumstances, I treat the merits as a neutral consideration.

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

1. This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Mr Dupljak’s claim. However, cases are rarely the same, and cases generally turn on their own facts.

1. No submission was made concerning this consideration, and I have treated this to be a neutral consideration in this case.

Conclusion

1. Weighing the considerations I need to take into account both individually and together, I am not satisfied that there are exceptional circumstances in this case.  As there are no exceptional circumstances, no additional time can be allowed for Mr Dupljak to make his application. This means that Mr Dupljak is not entitled to make a general protections application involving dismissal.

1. The application is dismissed. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

A Dupljak appearing on his own behalf.
K Hawkins appearing on behalf of the Respondent.

Hearing details:

2024
5 April.

[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].

[2] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].

[3] Ibid.

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

[5] Long v Keolis Downer[2018] FWCFB 4109 at [40].

[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

[7] Applicant’s Outline of Argument, p.2.

[8] Digital Hearing Book (“DHB”), p.16.

[9] DHB, p.17.

[10] Applicant’s Outline of Argument, p.3, Applicant’s Application - Form F8, p.4.

[11] Applicant’s Outline of Argument, p.3.

[12] Applicant’s Outline of Argument, p.3.

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