Caroline Deale v Optimum Performance Training Pty Ltd
[2025] FWC 530
•21 FEBRUARY 2025
| [2025] FWC 530 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Caroline Deale
v
Optimum Performance Training Pty Ltd
(C2024/9241)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 21 FEBRUARY 2025 |
General protections application filed out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Ms Caroline Deale (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute pursuant to s 365 of the Fair Work Act 2009 (Act) against her former employer, Optimum Performance Training Pty Ltd (Respondent).
The Applicant seeks an extension of time to lodge her general protections application in the Commission.
I conducted a hearing, by telephone, on 14 February 2025 in relation to the Applicant’s request for an extension of time.
The Applicant was dismissed on 25 November 2024 and lodged her general protections application in the Commission on 19 December 2024.
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 16 December 2024. The application was therefore filed three days 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]
On 26 November 2024, the Applicant requested advice through the Workplace Advice Service.
At 10:17am on 26 November 2024, the Applicant received an email from the Commission in response to her request for advice through the Workplace Advice Service. The email reminded the Applicant that she only had “21 days from the date of dismissal to lodge an unfair dismissal or general protections dismissal application”.
The Applicant did not obtain any advice prior to lodging her general protections applications in the Commission.
On 17 December 2024, the Applicant lodged her first general protections application in the Commission. The Applicant named both the Respondent and Ms Mel McGugan as respondents to her first general protections application.
At 10:02am on 18 December 2024, the Applicant received an email from the Commission acknowledging receipt of her first general protections application.
At 10:40am on 18 December 2024, the applicant sent an email to the Commission in the following terms:
“Good morning
I would like to request an amendment to be made to my application C2024/9155 if possible. I understand that I may have entered information incorrectly on my application submission and I do apologise.
I have attached copies of application which include highlighted information to be amended.
If I could have respondent amended to name to Matthew Craig and remove Ms Mel McGugan please.
I am hoping to have these amendments completed before you send to respondent.
Many thanks
Caroline Deale”
On 19 December 2024, the Applicant spoke to two different staff members from the Commission throughout the day. The Applicant says she was provided with differing opinions on the last day for her application. After considering the available options before her, the Applicant opted to discontinue her first general protections application and lodge a new application with amended details. In particular, the Applicant’s second general protections application omitted Ms Mel McGugan as a second respondent but continued to name the Respondent as a respondent to the application. The Applicant filed her second general protections application in the Commission at 1:19pm on 19 December 2024.
The Applicant explained in her statement that the reason for the delay in lodging her application in the Commission was her miscalculation of the 21 day period from the end of her employment. The Applicant mistakenly started the 21 day period from the day after her dismissal (26 November 2024), which resulted in her believing that she had until 17 December 2024 to lodge her application.
It is clear that both the first and second general protections applications filed by the Applicant were lodged more than 21 days after her dismissal. The first application was filed one day late. The reason for that delay was miscalculation on the part of the Applicant. I do not consider that the Applicant’s mistake in calculating 21 days after her dismissal constitutes an acceptable or reasonable explanation for the delay from 16 to 17 December 2024 in lodging the first application. The Applicant was told, in writing, on 26 November 2024 that she only had “21 days from the date of dismissal to lodge an unfair dismissal or general protections application” [emphasis added].
On 18 and 19 December 2024, the Applicant communicated with the Commission about concerns she had in relation to her first general protections application. The Applicant then acted quickly to discontinue her first application and lodge a new application in which she did not name Ms Mel McGugan as a respondent. The Applicant did not need to discontinue her first application and file a new application in order to be in a position where Ms McGugan was not named as a second respondent. The Applicant could have sought leave to amend her first application to remove Ms McGugan as a respondent. Given the fact that the first application had only been filed on 17 December 2024, it is very likely that leave would have been granted to permit such an amendment. But the Applicant is not a lawyer and obviously did not realise that she could proceed in this way. Having regard to these circumstances, I consider that the Applicant has a reasonable explanation for the delay from 17 to 19 December 2024 in lodging her second general protections application in the Commission.
The fact that the Applicant received differing opinions, on 19 December 2024, about the last day for her to file a general protections application does not have any bearing on whether the Applicant has an acceptable or reasonable explanation for her delay. As at 19 December 2024, the 21 day time period had already passed (on 16 December 2024). The Applicant proceeded to lodge her second general protections application, being the application presently before the Commission, on 19 December 2024.
Although the Applicant has a reasonable explanation for part of the delay (from 17 to 19 December 2024), she does not have an acceptable or reasonable explanation for the delay from 16 to 17 December 2024. On balance, I consider that the reason for delay weighs slightly against the Applicant’s contention that there are exceptional circumstances.
Action taken to dispute the dismissal
I consider that the Applicant took action to dispute her dismissal by filing her first general protections application in the Commission on 17 December 2024. But this was after the 21 day period had expired. I do not consider that making a request for advice through the Workplace Advice Service constitutes taking action to dispute the dismissal. Having regard to all the circumstances, I consider this to be a neutral consideration.
Prejudice to the employer
I cannot identify any significant 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. 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 general protections 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 contends that her employment was terminated on the last day of her six month probationary period due to the Respondent’s unwillingness to provide her with a range of “requested workplace rights”, as set out in the Applicant’s general protections application. The Applicant also contends that she was treated adversely because of her physical or mental disability.
The Respondent denies the Applicant’s claim and says that the Applicant’s employment was terminated within her probationary period because she did not meet the broad operational requirements of the position in which she was employed. The Respondent contends that the Applicant was assessed and evaluated in her position for many months during her probationary period, she was given ample opportunity to demonstrate competence and commitment to her role, and was afforded many opportunities to take on feedback to improve her performance. The Respondent contends that its assessments and evaluation revealed that the Applicant was not the right fit and a cessation of her employment occurred within the probationary period.
The facts, circumstances and reasons for the Applicant’s dismissal 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 Applicant’s general protections application. Having regard to all the circumstances, I consider the merits of the Applicant’s general protections 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.
Neither party made any submissions in relation to this factor. 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 of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case. The absence of a reasonable or acceptable reason for the initial delay (from 16 to 17 December 2024) weighs against a finding of exceptional circumstances. The other factors are neutral or of little weight. In my assessment, the circumstances of this case are not out of the ordinary course, unusual, special or uncommon. In my experience, it is quite common for employees to miscalculate the date on which the 21 day period ends.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2). Accordingly, the Applicant’s general protections application must be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms C. Deale appeared for herself.
Mr J. Chand, General Manager – Performance and Culture, appeared for the Respondent.
Hearing details:
2025.
Newcastle (by telephone):
14 February.
[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]
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