Brendan Thomas Tegg v TG Public Affairs Pty Ltd
[2023] FWC 1895
•2 AUGUST 2023
| [2023] FWC 1895 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Brendan Thomas Tegg
v
TG Public Affairs Pty Ltd
(C2023/2211)
| DEPUTY PRESIDENT DEAN | CANBERRA, 2 AUGUST 2023 |
Application to deal with contraventions involving dismissal – extension of time granted.
This decision concerns an application made by Mr Brendan Thomas Tegg (Applicant) on 17 April 2023, pursuant to s.365 of the Fair Work Act 2009, to deal with a general protections dispute involving his employment with TG Public Affairs Pty Ltd (Respondent).
It is not disputed that the Applicant resigned from his employment with the Respondent on 3 February 2023 and his last day was on 16 March 2023. As set out below, his general protections application was made outside the 21 day period prescribed by the Act and can only proceed if the Commission allows a further period in accordance with s.366(2) of the Act.
The Respondent raised jurisdiction objections to the application on the grounds that the application was made out of time and that the Applicant was not dismissed.
The application was listed for hearing by telephone on 1 August 2023 to consider the extension of time issue. The Applicant appeared and gave evidence on his own behalf. The Respondent was represented with permission by Ms Bridget Nunn of Thomson Geer.
Background
The Applicant commenced employment with the Respondent in about August 2019 and his employment ended on 16 March 2023.
On 5 April 2023 the Applicant filed an application under s.365 of the Act alleging contraventions of general protections provisions by the Respondent (First Application).
On 6 April 2023 the Commission received the following email correspondence from the Applicant:
‘Hi
Thank you for the confirmation email.
I have decided to withdraw this application.
Can you please let me know I need to do to formally withdraw.
Warmest regards’
On Friday 14 April 2023 a letter via email was sent to the parties by a staff member of the Commission advising that the application had been discontinued and that no further action would be taken.
On Monday 17 April 2023, the Applicant wrote an email to the Commission which reads as follows:
‘Hi
Is it possible to have this matter reinstated?
It appears my email was taken as an intention to withdraw, I was only seeking guidance on what I needed to do to withdraw my application.
I acknowledge my email was not as clear as it could have been, however I am surprised that it led to the matter being discontinued, I would assume a formal notice would have been required.
Regards
Brendan Tegg’
Later on 17 April 2023, a staff member of the Commission responded to the Applicant’s email in the following terms:
‘Thank you for your email.
We refer you to rule 10(2)(b) of the Fair Work Commission Rules 2013 (Cth) which states that an applicant can discontinue an application by advising the Commission – via letter, email, fax, telephone, or orally in person – of their wishes to withdraw the application.
Your email received by the Commission on 6 April 2023, stated ‘I have decided to withdraw this application’, and as such it has been treated as a request to discontinue the application.
The matter is now closed and cannot be reinstated.
However, you are welcome to make a new application with the Commission. We note that the section 366 of the Fair Work Act 2009 (Cth) requires a General Protections application to be made within 21 days of the date the dismissal took effect.’
Shortly after this email, the Applicant lodged a second application on 17 April 2023 which is now before the Commission (the Second Application).
Against this background, the Second Application was not made within the prescribed timeframe and the Applicant asks the Commission to grant a further period for the application to be made under s.366(2).
Extension of time
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the Act provides:
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:
(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.
Section 366(2) of the Act provides:
(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.
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[2]
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[3] where the Full Bench said:
‘[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.’
The onus of establishing exceptional circumstances lies with the Applicant.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[4]
As set out earlier in this decision, the Applicant made the First Application within time.
He gave evidence that he was not aware that his email of 6 April would be taken as a notice to discontinue the First Application. He believed that he was required to lodge a notice of discontinuance in the approved form.
The Applicant was not advised by the Commission until 14 April that his email of 6 April had been taken as a discontinuance of his First Application. When the Commission confirmed with him on 17 April that the First Application could not be reinstated, he filed the Second Application the same day.
I am satisfied that the circumstances of this matter support a finding that there are exceptional circumstances. While the wording of the 6 April email clearly indicates that the Applicant wished to withdraw the First Application, I accept his evidence (not tested in cross examination) that he did not consider his email to be sufficient to withdraw his application and believed he needed to complete the Commission’s Notice of Discontinuance form which he had not done. I am satisfied that this is an acceptable reason for the delay.
Any action taken by the person to dispute the dismissal
There was no evidence that Applicant took any action to dispute his alleged dismissal until the First Application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I do not consider the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
For the purpose of determining whether to grant an extension of time, the Commission ‘should not embark on a detailed consideration of the substantive case.’[5]
In Damien Haining v Deputy President Drake & Ors[6] the Full Court of the Federal Court said:
‘At the end of the day, the person exercising the discretion has to make an overall judgment as to the appropriateness of extending the time. The extent and the cause of the delay will usually be factors relevant to that judgment; so also will other matters included in the summary, to the extent they apply to the instant case; and perhaps other matters as well. The acceptability of the applicant’s explanation for delay cannot be divorced from the effect of that delay on the respondent or other people. If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.’ (emphasis added)
The Applicant gave evidence as to the matters that led to his resignation, which he says was forced by actions of the Respondent. He was not cross examined about his evidence. It was alleged that the Respondent contravened sections 340 and 351 of the Act.
The Respondent denies the allegations and submits that the Applicant voluntarily resigned from his employment after the Respondent’s decision not to offer him equity in the business based on performance issues.
On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[8]
Neither party made submissions on this criterion and I therefore find this to be a neutral consideration.
Consideration
In Stogiannidis v Victorian Frozen Foods Distributors P/L[9], the Full Bench said:
[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] … each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.
Having considered all the matters to which my attention is directed by the Act, I am satisfied that there are exceptional circumstances which would warrant my granting an extension of time. The circumstances in which the Applicant’s First Application was discontinued support such a finding.
Accordingly, an extension of time is granted. An order reflecting this decision is separately issued.
DEPUTY PRESIDENT
Appearances:
B Tegg, on his own behalf.
B Nunn of Thomson Geer for TG Public Affairs Pty Ltd.
Hearing details:
2023.
By telephone:
August 1.
[1] [2016] FWCFB 6963.
[2] [2016] FWCFB 6963.
[3] [2011] FWAFB 975.
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[5] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[6] [1998] FCA 1168.
[7] [2015] FWC 8885.
[8] Ibid at [29].
[9] [2018] FWCFB 901.
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