Arkadiy Batikyan v Expo Centric Pty Ltd
[2025] FWC 1451
•27 MAY 2025
| [2025] FWC 1451 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Arkadiy Batikyan
v
Expo Centric Pty Ltd
(C2025/2951)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 27 MAY 2025 |
General protections application filed out of time – representative error – circumstances exceptional – extension of time granted.
Introduction
This decision concerns an application by Mr Arkadiy Batikyan (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute (Application) pursuant to s 365 of the Fair Work Act 2009 (Act) against his former employer, Expo Centric Pty Ltd (Respondent).
The Applicant seeks an extension of time to lodge his Application in the Commission.
I conducted a hearing, by telephone, on 27 May 2025 in relation to the Applicant’s request for an extension of time.
The Applicant’s dismissal from his employment with the Respondent took effect on 19 March 2025. The Application was filed in the Commission on 10 April 2025.
Section 366(1) of the Act states that an application under s 365 must be 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). The period of 21 days ended at midnight on 9 April 2025. 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 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.[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.[2]
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 take into account 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 will now consider these matters.
Reasons for the delay
The delay required to be considered in s 366(2)(a) 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.[3] 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.[4]
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.[5]
The Applicant contends that the delay in filing his Application was due to representative error on the part of his solicitor, Ms Eve Lynch.
A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time.[6] In Clark v Ringwood Private Hospital,[7] a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
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.
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.
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.
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.
It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing a general protections application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[8] However, as the Full Bench explained in Long v Keolis Downer,[9] “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”.
Both the Applicant and Ms Lynch gave evidence in support of the Applicant’s request for extension of time. Their evidence establishes the following sequence of events:
(a)On 27 March 2025, the Applicant attended a telephone conference with Ms Lynch, at which time he provided information about the circumstances of his dismissal, instructed Beswick Lynch to send a letter to the Respondent setting out his concerns and offering a commercial resolution, and failing agreement to proceed with filing a General Protections application in the Commission.
(b)On 31 March 2025, the Applicant signed a Costs Disclosure and Costs Agreement in respect of the work to be undertaken by Ms Lynch.
(c)On 4 April 2025, the Applicant received a draft letter of demand from Mr Ethan Kilham, a lawyer in Ms Lynch’s law firm. The draft letter gave the Respondent until 10am on 10 April 2025 to respond.
(d)On 6 April 2025, the Applicant sent a text message to Mr Kilham raising his concern that the “request was made for Expo Centric to respond on 10am, 10th April, but that is already passing the 21-day period.” The Applicant also sent an email to Mr Kilham on 6 April 2025 to “draw attention to the fact that 10am on 10th April 2025 is already too late to file with Fair Work, as I was dismissed on 19th March. Thus, according to the Fair Work website we can only file on 9th of March”. Mr Kilham responded by text, informing the Applicant that “the 21 day period starts from the day after termination”.
(e)A law graduate employed by Beswick Lynch incorrectly counted the 21-day time limit for a General Protections application to be filed in the Commission. Unfortunately, Ms Lynch did not double check the law graduate’s calculation of the 21-day time limit. Ms Lynch readily accepts that this error was entirely her own and was not due to any action or inaction by the Applicant. At the time this error was made, Ms Lynch was under professional and personal pressure.
(f)On 7 April 2025, Beswick Lynch sent a letter of demand to the Respondent.
(g)On 10 April 2025, Beswick Lynch filed the Application in the Commission.
In my view, it was a clear representative error on the part of Ms Lynch not to file the Application by midnight on 9 April 2025. On 27 March 2025, the Applicant gave instructions to Ms Lynch to file a General Protections application in the Commission if the dispute could not be resolved commercially. The Applicant acted without delay in signing a Costs Disclosure and Costs Agreement on 31 March 2025. The Applicant then raised with Mr Kilham, on two separate occasions on 6 April 2025, his concern about the letter of demand setting a date for response which was more than 21 days after his dismissal. The Applicant was informed by Mr Kilham that the “21 day period starts from the day after termination”. The clear implication from this communication was that the Applicant had wrongly calculated the conclusion of the 21-day period.
In all the circumstances, I am satisfied that the delay in filing the Application is to be attributed to the error made by Ms Lynch in not checking her law graduate’s calculation of the 21-day time limit. I am satisfied on the evidence before the Commission that no part of the delay was occasioned by the conduct of the Applicant; I consider that he is blameless for the delay.
For the reasons stated, I consider that the Applicant has an acceptable explanation for the one-day delay in lodging his Application in the Commission. This weighs in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
The fact that the Applicant instructed Beswick Lynch to send a letter of demand to the Respondent on 7 April 2025 constitutes action taken by the Applicant to dispute his dismissal. This weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer
The Respondent contends that it has been disadvantaged by the late filing of the Application. It is submitted that following the expiry of the 21-day statutory period, the Respondent reasonably assumed the matter had concluded and reallocated resources accordingly. The unexpected revival of the claim has, so the Respondent contends, created unnecessary uncertainty, required the Respondent to redirect time and resources to address a matter it believed would not proceed, and has imposed avoidable time and cost burdens on the Respondent.
Notwithstanding these submissions by the Respondent, I cannot identify any significant prejudice that would accrue to the Respondent if a one-day 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. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
The Applicant alleges that the Respondent contravened ss 340 and 343 of the Act. The Applicant says that he was initially employed by the Respondent as an Office Manager on 15 April 2024 and was dismissed on 9 December 2024. He was then offered the casual position of Business Development Manager, to commence on 13 January 2025, for a ‘trial period’ from 13 January 2025 until 28 February 2025, during which time he would not be paid a wage and would only be paid a commission if he brought 10 briefs into the Respondent. The Applicant says that he raised complaints with Mr Stan Kruss, CEO of the Respondent, on multiple occasions, including in relation to his lack of payment and the hours he was required to work. On 28 February 2025, the Applicant was offered a full-time position, on a salary plus commission, with the Respondent for a fixed period of March 2025. The Applicant contends that he was pressured into signing this contract in the hope that he would recover payment for the period when he was not paid a wage by the Respondent from 13 January 2025 to 28 February 2025. The Applicant contends that he has not been paid the commission he is owed by the Respondent.
On 19 March 2025, the Respondent summarily dismissed the Applicant due to alleged serious and repeated breaches of company policies, including unauthorised access and use of other employees’ laptops, unauthorised removal of company equipment containing confidential information, and failure to comply with lawful and reasonable directions from Mr Kruss. The Applicant denies these allegations.
The facts, circumstances and reasons for the Respondent’s decision concerning the Applicant’s dismissal on 19 March 2025, together with the Applicant’s entry into the various contractual arrangements with the Respondent, would need to be carefully considered at a final hearing after the cross examination of relevant witnesses. I do not consider that it is possible at this early stage of the proceedings to come to an informed view of the merits of the Application. Having regard to all the circumstances, I consider the merits of the Application 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 protections application. However, cases of this kind will generally turn on their own facts.
The Respondent contends that although there are no previous cases involving similar circumstances at the Respondent’s workplace, granting an extension of time in this instance risks creating an inconsistent precedent. It would, so the Respondent, contends undermine the purpose of the statutory time limit and send the wrong message to current and future employees – that the 21-day deadline is flexible.
I do not accept these submissions by the Respondent. Each case concerning a request for an extension of time turns on its own facts. There is nothing in the material before the Commission to suggest that “fairness as between the person and other persons in a like position” has any particular relevance to the present case. In all the circumstances, I consider this factor to be a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all the matters raised by the parties, I am satisfied that there are exceptional circumstances in this case and it is appropriate to exercise my discretion to extend time for the Application to be lodged in the Commission. The circumstances of this case are out of the ordinary course, unusual, and special because an applicant can reasonably expect that if they engage a solicitor to act on their behalf shortly after their dismissal, their solicitor will be aware of, and comply with, the 21-day time period to lodge a general protections application in the Commission. Ms Lynch failed to meet this standard and, as a result, did not lodge the Application in the Commission within 21 days of the dismissal. This provided the Applicant with an acceptable reason for the delay. The Applicant also took some action to dispute his dismissal by instructing his lawyers to send the letter of demand to the Respondent on 7 April 2025. The remaining factors under s 366(2) are neutral or of little weight. In my view, it is in the interests of justice that the Applicant, whose conduct did not contribute to the one-day delay in lodging his Application, be permitted to pursue his general protections case.
For the reasons given, I will extend the time for the Applicant to lodge his Application to 10 April 2025. An order will be issued to that effect [PR787687].
The matter is listed for conciliation, by telephone, at 2:30pm on Monday, 2 June 2025.
DEPUTY PRESIDENT
Appearances:
E Lynch, solicitor, for the Applicant
A Ruffat for the Respondent
Hearing details:
2025.
Newcastle (by telephone):
27 May.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] 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]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] See, for example, C. Davidson, Print Q0784, 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759; Melios v Qantas Airways Ltd[2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long v Keolis Downer[2018] FWCFB 4109
[7] (1997) 74 IR 413 at 418-9
[8] Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 at [17]; Long v Keolis Downer[2018] FWCFB 4109
[9] [2018] FWCFB 4109 at [60]
Printed by authority of the Commonwealth Government Printer
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