Branislav Peric v Jetstar Airways Limited

[2022] FWC 1476

[2022] FWC 1476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Branislav Peric
v

Jetstar Airways Limited

(C2022/1945)

DEPUTY PRESIDENT LAKE BRISBANE, 10 JUNE 2022

Application to deal with contravention involving dismissal – application made outside of statutory timeframe – extension of time.

1. On 24 March 2022, Mr Branislav Peric (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to his dismissal by Jetstar Limited (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Brisbane. The Applicant’s employment commenced with the Respondent on 16 April 2018 as a Narrow Body First Officer. There is contention as to when his employment was terminated, on or around 20-22 December 2021.

1. By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. The Applicant acknowledged that he lodged his application 74 days outside the statutory time limit. To be within time, the Applicant should have lodged his application on or before 10 January 2022.

1. The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.

Background

1. On 11 January 2022, the Independent Workers’ Union of Australia (the Red Union) – on the Applicant’s behalf – filed with the Commission a Form F8 – General protections application involving dismissal commencing Matter Number C2022/122 (the first application).

1. On 22 February 2022 at 10:43am, the Commission received correspondence from the Red Union indicating that the first application was likely to be withdrawn.

1. On 22 February 2022 at 11:51am, the Applicant appointed a new representative, Mr Robert Grealy.

1. On 23 February 2022, the Red Union filed with the Commission a Form F50 – Notice of Discontinuance, closing the first application.

1. On 24 March 2022, 29 days later, the Applicant’s Representative filed with the Commission a Form F8 – General protections application involving dismissal commencing Matter Number C2022/1945 (the second application).

1. On 26 May 2022, I convened a hearing by Microsoft Teams to determine whether to allow the Applicant an additional period within which to lodge the second application.

Representation

1. The Applicant sought to be represented at the hearing, which was not opposed by the Respondent. Even so, I must still consider whether permission ought to be granted under s.596 of the Act.

1. Given the Applicant’s inexperience in legal matters and limited ability to represent his own interests, I am satisfied that it would be unfair not to allow him representation, particularly in circumstances where the Respondent does not oppose that representation. The presence of the Applicant’s representative would also enable the matter to be dealt with more efficiently. Accordingly, I allowed the Applicant to be represented by Mr Robert Grealy from Australian Law Partners Pty Ltd at the hearing. Ms Rania Jones, the Senior Manager of Industrial Relations – Group Litigation at Jetstar Limited and the primary person responsible for representing the Respondent, appeared on its behalf.

Consideration of whether a further period should be granted

1. As noted above, s.366 of the Act requires that a general protections application under s.365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 3662(2) of the Act.

1. Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(2)       The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)       the reason for the delay; and

(b)       any action taken by the person to dispute the dismissal; and

(c)       prejudice to the employer (including prejudice caused by the delay); and

(d)       the merits of the application; and

(e)       fairness as between the person and other persons in a like position.”

1. The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant.[1] The Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd extensively canvassed the meaning of ‘exceptional circumstances’, concluding:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.”

1. The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.[2]

1. In order for the Applicant’s general protection application to proceed, it is necessary for him to obtain an extension of time under s. 366(2) of the Act. In considering an application for an extension of time, I must be satisfied there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act. I now turn to address the particular matters to which regard must be had.

Applicant’s Submissions

1. The Applicant contends that his termination occurred on 22 December 2021. The first application was made on 11 January 2022. This was discontinued on 23 February 2022. He appointed his current representative on the 22 February 2022. The second application made on 24 March 2022.

1. He contends that the first application was made in time by the Red Union on 11 January 2022. He claims there was a representative error with discontinuing the first application, which was discontinued by the Red Union on 23 February 2022. He provided no evidence of any exceptional circumstances regarding the first application.

1. The second application was lodged on 24 March 2022, being 29 days after the appointment of the Applicant’s Representative. He stated the delay was due to collecting the evidence to support the application and furthermore, Mr Grealy’s office was under work pressure.

Respondent’s Submissions

1. The evidence of the termination letter and testimony from Mr Timothy Faulkner confirmed that the date of dismissal was 20 December 2021.

1. Therefore, the first application was filed out of time as the Applicant filed with the Commission on 11 January 2022, one day outside the 21-day statutory time limit. No extension was granted as the matter was discontinued on 23 February 2022.

1. The second application was filed on 24 March 2022, 29 days after the discontinuance of the first application and 74 days outside the statutory time limit and representative error cannot be relied upon as the Applicant’s conduct contributed to the delay.

1. The Respondent relied upon the decision made by Spencer C in McLennan v Northern Territory Stolen Generations Aboriginal Corporation (McLennan).[3] The Commissioner determined that the Applicant must provide evidence illustrating that they gave clear instructions to lodge an application[4] and took sufficient steps to enquire as to the status of their claim.[5]

1. In applying this decision, the Respondent submits that the Applicant failed to do either with respect to both applications. The Applicant was not blameless for the delay in filing the first application or the second application and that the Applicant’s own lack of conduct contributed to the delay.

Consideration

Section 366(2)(a) – The reason for the delay

1. The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[6] or a reasonable explanation.[7] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[8] the Full Bench noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

1. I have established that the termination was effective immediately on 20 December 2021 and therefore the first application which was discontinued was out of time. No evidence was provided by the Applicant for the delay.

1. In the matter of the second application, whilst the Applicant contends that there was confusion with the first application being discontinued, even if this was accepted, the second application was delayed a further 29 days. There is no evidence that would lead me to conclude that representative error would account for the entire 29-day period. The Applicant states that he spent time collating evidence for his application. However, all that is required to file a Form F8 – General Protections Application is to complete the three-page application. His representative claimed that due to the high volume of work, his office was unable to submit the application until 24 March 2022. I cannot find any exceptional circumstance to account for the entire 29 days. I might have been minded to provide a seven day extension. However, this would not cover the entire period.

1. It is clear, based on the evidence before me, that the first and second applications are out of time.

1. I do not consider any of these exceptional circumstances which warrant me exercising my discretion to allow an extension of time.

1. The absence of an acceptable or reasonable explanation for the delay in lodging a completed application weights strongly against the Applicant’s request for an extension of time.

Section 366(2)(b) - Action taken to dispute the dismissal

1. An action taken by an employee to contend the dismissal, other than lodging an application, can be treated as favouring the granting of an extension of time.[9]

1. During the termination the Applicant contended the legitimacy of the COVID-19 vaccine and did not wish to be vaccinated.

1. The Applicant did not take any further action to dispute the dismissal.

1. Accordingly, this factor does not weigh in favour of an extension of time.

Section 366(2)(c) - Prejudice to the employer

1. In considering this factor, the employer must produce evidence to demonstrate prejudice. It is then a matter for the applicant to show the facts do not amount to prejudice.[10]

1. The Respondent made no submission in relation to this factor and presented no evidence of any prejudice.

1. The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[11] I consider this factor to be neutral.

Section 366(2)(d) - Merits of the Application

1. In Kornicki v Telstra-Network Technology Group,[12] the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

1. I note that during the hearing both parties touched on the merits of the application. The Applicant stated that he refused to be vaccinated, yet made no specific case for why the claim was under a General Protections Application.

1. Thus, without a proper assessment of all the evidence in this matter, this is a neutral determination.

Section 366(2)(e) - Fairness as between the Applicant and other persons in a like position

1. The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[13]

1. The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

1. Having regard to all the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist in this matter.

1. Pursuant to section 366(2) of the Act, the extension of time is denied, and the section 365 application is dismissed. I Order accordingly.

DEPUTY PRESIDENT

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

[2] [2019] FWC 25.

[3] [2012] FWA 3167.

[4] Ibid, [35].

[5] Ibid, [33].

[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9]

[7] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]

[8]   [2018] FWCFB 901.

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

[10] Cowie v State Electricity Commission of Victoria [1964] VR 788

[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300

[12] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[13] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].

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