[2015] FWC 2045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Chris Lewis
v
The Australian National University
(C2014/6429)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 25 MARCH 2015

Application to deal with contraventions involving dismissal - extension of time.

[1] On 18 September 2014 Dr Chris Lewis (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by the Australian National University (ANU - the Respondent) in contravention of the general protections provisions of the Act. In his application, Dr Lewis contended that he only became aware that his employment contract had been terminated after he had made a general protections application under s.372 of the Act on 21 July 2014 1. That s.372 application was the subject of a conference convened by the Fair Work Commission (the Commission) on 21 August 2014. The conference failed to resolve that dispute.

[2] On 25 September 2014 the ANU raised two jurisdictional objections to Dr Lewis’ application under s.365 of the Act. First, that Dr Lewis had not been dismissed within the meaning of that term in s.365 and second that, if the Commission found that Dr Lewis had been dismissed on either 13 September 2013 or 16 July 2014, Dr Lewis’ application had been made outside the 21-day timeframe specified in s.366(1) of the Act.

[3] On 22 September 2014 the Commission issued directions requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. The application was heard on 23 October 2014.

[4] Dr Lewis represented himself and Mr Michael Will appeared with permission for the ANU.

[5] Dr Lewis gave evidence on his own behalf, while Ms Melissa Austin, the Acting Associate Director of Human Resources for the ANU, gave evidence for the ANU.

[6] For the reasons set out below I have found that Dr Lewis’ employment ceased on 11 September 2013 being the last day that he worked for the ANU. On that basis, his general protections application was lodged 351 days outside the 21 day statutory timeframe. Having considered all of the factors set out in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365. Accordingly, Dr Lewis’ application cannot proceed and is therefore dismissed. An order to that effect will be separately issued.

Background

[7] Dr Lewis has since October 2008 been employed by the ANU on a number of different employment contracts, which at times have overlapped. Those contracts have been a mix of casual (non-ongoing) employee and full time fixed-term employee contracts, with one continuing (contingent funded) employee 2 contract.

[8] The most recent contract entered into by Dr Lewis saw him employed as a casual (non-ongoing) employee in position number 18856 which carried the title of Research Assistant. Dr Lewis’ employment under the contract commenced on 21 November 2011 with Professor Dowding being his supervisor. The letter of offer of employment states that “Your employment may be terminated by the University or by you giving one hour’s notice, or by the University paying you or forfeiting one hour’s salary in lieu of notice.” 3The letter of offer also states that the terms and conditions of employment will be determined by the letter and The Australian National University Enterprise Agreement 2010-20124 (or any agreement that replaces that agreement5).

[9] On 13 September 2013 Dr Lewis sent Professor Dowding an email in the following terms:

“Keith, just wondering if I will be kept on as having access to ANU databases as this will be the first time since late 2008 that I am not currently working for ANU.” 6

[10] Professor Dowding responded in the following terms shortly thereafter:

“You are still on contract with me so I think so.

All new contracts for professional staff which includes casual RAs like yourself are frozen – ie have to get special permission. For that reason I have argued that you should stay on contract (even though not actually working) since I hope to give you new work in the future.

I am not sure when I can bring you back. It turns out I have exceeded my budgets quite considerably! so need to cover those, but will endeavour to get some more money and give you some more work. I do want to follow up on the data for state level ministers and those who have moved from state to federal level.” 7

[11] In April 2014, Dr Lewis lodged a complaint concerning another ANU staff member, Professor Wanna. The complaint concerned comments made by Professor Wanna in an email he had sent the ANU’s Vice-Chancellor in 2013 regarding Dr Lewis. The email concerned an article which Dr Lewis had supposedly submitted to Professor Wanna in May 2010. The complaint was initially referred to the Dean of the College of Arts and Social Sciences for review. On 7 May 2014 the Dean advised Dr Lewis of the outcome of her review, finding that there was no breach of the Code of Conduct and that there was no evidence that Professor Wanna had misrepresented the process to the Office of the Vice-Chancellor. Dr Lewis subsequently sought a review of the Dean’s decision. The review was undertaken by Ms Nadine White, the ANU’s Director of Human Services.

[12] In May 2014 Professor Dowding contacted Dr Lewis regarding the latter’s complaint against Professor Wanna. In his closing submissions, Dr Lewis drew on the following material which he had relied upon in the context of his s.372 general protections application regarding that conversation.

“Prof Dowding, my employer, rang me and stated he was being pressured as a result of my complaint, that I’d betrayed his trust by disclosing evidence from email correspondence even though I had advised Dowding before the complaint started and received no objection and that nothing would be done about the person I was complaining about even though he’d made an implied threat, had falsely accused me of academic bias and had bullied me in the past and Dowding also concluded that I was merely wasting the ANU’s resources.” 8

[13] On 3 July 2014 Dr Lewis emailed Professor Dowding seeking clarification in terms of future paid employment with the Professor and the ANU. The email was in the following terms:

“Keith,

With regard to my ongoing complaint against Professor John Wanna, which included a phone call from yourself discussing the matter, could you please clarify my status in terms of future paid employment with yourself and the ANU?” 9

[14] On 16 July 2014, the ANU terminated Dr Lewis’ employment record on its human resources management system (HRMS) as part of a cleanup of staff records. Dr Lewis’ record was terminated on the basis that it had been inactive since September 2013. The implications of that record being terminated were that Dr Lewis subsequently lost access to the ANU’s systems and databases for the first time since he was employed by the ANU in 2008.

[15] On 21 July 2014, Ms White wrote to Dr Lewis advising him the result of her review of the Dean’s finding regarding his complaint against Professor Wanna. In short, Ms White reaffirmed the Dean’s decision and was satisfied that the Dean had conducted her review appropriately 10.

[16] What then ensued is a series of emails between Dr Lewis and Ms Austin and Mr Will, who at that stage was representing the ANU, seeking information and documentation regarding his employment with the ANU. I will highlight several of those emails.

[17] On 7 August 2014 Ms Austin emailed Dr Lewis two documents, one of which was a spreadsheet detailing his employment history with the ANU. In respect of his employment in position number 18856, the document in the column headed “Action” stated “Terminatn” [sic termination], in the column headed “Effective date” it stated “16/7/2014” and in the column headed “Action Reason” it stated “Casual App” 11. Later that day, Dr Lewis emailed Ms Austin as follows:

“Melisa, I have noticed my employment with Dowding was terminated on 16 July 2014.

I was not given any notice, so I am now making a complaint about that.” 12

[18] On 8 August 2014 Dr Lewis sent the following email to Professor Dowding:

“Dear Keith,

On 3 July 2014, I wrote to you to ask for clarification about ‘my status in terms of future paid pemployment [sic] with yourself and the ANU’.

On 16 July 2014, terminated my contract with yourself, and perhaps my employment status with the ANU.

You also terminated my contract during an investigation into my complaint about an ANU staff member, which you rang me about during May 2014 to tell me I was merely wasting my time and ANU resources.

As the matter is before the Fair Work Commission ... could you please have the courtesy to tell me why my employment was terminated with no reason given to this day ...” 13

[19] On 20 August 2014 Mr Will, on behalf of the ANU, emailed Dr Lewis in the following terms:

“Dear Dr Lewis

I refer to your requests for information as set out in your 14 August 2014 email.

You have now been provided with all of your payment summaries for the period 2008 to 2014.

You have also asked for information concerning your “termination as an ANU employee on 16 July 2014” and that you require details of “how my employment was terminated, by whom, and the date of termination”.

Your employment with the ANU was not terminated on 16 July 2014, so there is no information that can be provided to you in response to this request.” 14

[20] On 2 September 2014 Ms Austin emailed Dr Lewis as follows:

“Dear Dr Lewis,

The employee record for position number 18856 (reporting to Professor Dowding) was closed on 16 July 2014. You were last paid against your non-ongoing casual contract as a Research Assistant in September 2013 and the record of this employment remained in the system until it was closed by the College HR team as an inactive record during a data clean up. It provides no barrier to future employment of any sort at ANU, including as a casual employee.

It is noted that your other casual employee records have also been closed at various times using the same process.

You are also able to register for the casual employment pool. Please see the following link for information on how to register:

[21] Dr Lewis responded to the above email from Ms Austin later that day as follows:

“Really,

Fact is I had a contract with Keith, and it was closed during complaint, two weeks after I asked Dowding for clarification of my employment.

...

In any case, the ANU’s actions, in line with what Dowding told me last September, effectively removed me from casual pool.” 16

[22] On 5 September 2014, Ms Sue Galbraith, a lawyer with the ANU’s Legal Office, responded in the following terms to an email from Dr Lewis requesting information regarding the termination of his employment and referring to Regulation 3.40 of the Fair Work Regulations 2009:

“Dear Dr Lewis,

I refer to your request below.

Fair Work Regulation 3.40 relates to termination of employment. Your employment at ANU was not terminated on 16 July 2014; the record used in the HR Management System associated with your name was closed as it had been inactive in the system for several months. The closure of this record is referred to in the HRMS as a termination of the record. It is not a termination of employment.

In July 2014, your casual record was one of 169 casual records similarly terminated. Record termination is a routine administrative task. Information infrastructure access privileges for the University ID number associated with a record automatically cease 21 days following termination of that record in the HRMS system.

Your most recent period of employment at ANU ended in August 2013 as per the terms of your non-ongoing employment contract dated 18 November 2011. This information has already been provided to you ...” 17

[23] On 14 September 2014 Dr Lewis emailed Ms Austin informing her that he would “... begin an adverse action against the ANU under my general protections application made with the Fair Work Commission.” 18 The email also stated:

“Having utilised a workplace right as a prospective employee ...” 19

[24] On 18 September 2014 Dr Lewis lodged his application under s.365 of the Act.

Dr Lewis’ submissions and evidence

[25] Dr Lewis submitted that his employment had been terminated on 16 July 2014 as a result of the complaint he had made against Professor Wanna. Specifically, Dr Lewis contended that the ANU had contravened s.341 of the Act which deals with workplace rights.

[26] Dr Lewis further submitted that he had been terminated without the ANU providing the required period of notice as per his employment contract and that his termination did not occur in accordance with the ANU’s Human Resource Guidelines.

[27] Based on the ANU’s advice that he had not been terminated on 16 July 2014, Dr Lewis contended that his application was not lodged outside the 21 day statutory time frame specified in the Act as he was only advised on 2 September 2014 that he was no longer employed by the ANU (see paragraph [20] above). Further, Dr Lewis contended that the ANU had ignored his many requests for relevant information regarding his employment.

[28] In closing, Dr Lewis submitted that if 2 September 2014 was not used as the date to calculate the 21 day statutory time frame, then the date should be 7 August 2014 as that was when he first learned that his contract had been terminated. Relying on 7 August 2014, Dr Lewis submitted, would see his application lodged about 20 days late 20. Further, were that date relied upon, Dr Lewis submitted that the reason for the delay in lodging his application was the ANU’s “constant refusal to answer any of my employment status queries from 7 August 2014”21. Dr Lewis also rejected the ANU’s submission that if the Commission found that his employment did not come to an end in September 2013 that he remained an employee of the ANU22.

[29] In his witness statement 23, Dr Lewis set out in general terms his employment history with the ANU and in some detail his email exchanges with both Professor Dowding and the ANU. Dr Lewis further deposed that he had previously been employed under two supervisors where he did not get any paid work for several months but remained on contract to receive future paid work until each contract was terminated24.

[30] Key aspects of Dr Lewis evidence under cross examination were that:

(i) in respect of the words “I am not currently working for ANU” in his email of 13 September 2013 to Professor Dowding, he never thought that he was no longer working for the ANU as he had not received any notification that he had been terminated 25;

(ii) with regard to his previous employment contracts, he had not been aware that they had been terminated until he was provided with a copy of his employee records by the ANU 26;

(iii) Professor Dowding had indicated to him the possibility of further work in February 2014 27;

(iv) he understood that the reference in Professor Dowding’s response of 13 September 2013 to “All new contracts for professional staff which includes casual RAs like yourself are frozen …” did not apply to him 28;

(v) he understood the following words in that email “… have to get special permission. For that reason I have argued that you should stay on contract (even though not actually working) …” to mean that as soon as Professor Dowding secured further funding that he would be getting more paid work, adding that while he was not doing any paid work he remained working as far he was concerned 29;

(vi) the ANU would not have investigated his April 2014 complaint against Professor Wanna had it not considered him to be an employee 30;

(vii) while he had not worked for the ANU since September 2013, once he made his complaint “it was all over for him” 31;

(viii) his understanding was that the termination of an employment record does not actually end the employment relationship 32;

(ix) he was sure ANU records showed that his contract was terminated on 16 July 2014 33;

(x) he assumed that Professor Dowding had terminated his contract because the termination occurred shortly after he had contacted Professor Dowding on 3 July 2014 enquiring about his employment situation and after Professor Dowding had contacted him in May 2014 34;

(xi) he had spoken to two solicitors and one barrister regarding his situation 35;

(xii) with reference to his email of 13 September 2013 to Professor Dowding, he knew that he would not be getting any paid work “Because I’d already discussed it with Keith and it happened before in previous contracts” and acknowledged that while there was no agreement about the provision of further work his contract remained valid 36; and

(xiii) he considered that his contract was terminated on 16 July 2014, though the first indication he received of this from the ANU was in Ms Austin’s email of 2 September 2014 37.

The ANU’s submissions and evidence

[31] The ANU submitted that the exchange of emails between Dr Lewis and Professor Dowding on 13 September and 18 October 2013 38 shows that Dr Lewis was told and acknowledged that his employment with the ANU in position number 18856 had ended on 11 September 2013. The ANU further submitted that Dr Lewis’ employment record was terminated on 16 July 2014 as part of an overall process of terminating around 800 inactive employee records. This action, the ANU submitted, had no contractual effect and does not terminate the employment of an employee.

[32] Based on its view that Dr Lewis’ employment had ended in September 2013, the ANU submitted that Dr Lewis’ application was about 12 months out of time. In the alternative, the ANU submitted that if the Commission found that Dr Lewis’ employment did not come to an end in September 2013, then there had been no termination of the employment contract and Dr Lewis remained an employee of the University.

[33] In closing, the ANU submitted Dr Lewis was provided with every document in existence relating to his employment which he requested 39. The ANU further submitted that Dr Lewis had not provided a reason as to why his application had been lodged outside the statutory timeframe40. Finally, the ANU submitted that there had not been a dismissal41. In doing so, it acknowledged that “there’s a glitch with the termination notice”, adding that it was difficult to understand how the requirement to provide one hour’s notice of termination “works when somebody is not working.”42

[34] Ms Austin reiterated much of the above in her witness statement 43, attesting that the last period of casual employment which Dr Lewis had worked for the University in position number 18856 was the period ending 11 September 2013.

[35] Under cross examination Ms Austin:

(i) stated that the ANU’s grievance resolution procedure is used to deal with staff complaints and for complaints against a staff member from persons outside the ANU 44;

(ii) responded that to her knowledge Professor Dowding’s email of 13 September 2013 to Dr Lewis was the only correspondence from the ANU to Dr Lewis indicating that he was no longer an employee prior to Dr Lewis making his complaint against Professor Wanna in April 2014 45;

(iii) stated that she had no knowledge of Professor Dowding contacting the ANU’s Human Resources area between 3 and 16 July 2014 46;

(iv) attested that there was no documentation of a termination or dismissal because it did not occur, reiterating that Dr Lewis’ employment ended in September 2013 when he stopped working for the ANU 47;

(v) suggested that Ms White would have taken Dr Lewis at his word when he described himself as an ANU employee in the context of his complaint against Professor Wanna 48;

(vi) stated that following the termination of Dr Lewis’ employment record regarding position number 18856 it would not have been possible to reactivate the employment contract as that contract would have been linked to a funding source, though she added that another contract could have been put in place 49;

(vii) stated that one hour’s notice in lieu is normally paid when someone was working and was actually on site 50;

(viii) attested that the custom and practice regarding ANU non-ongoing contracts was that they automatically terminated when the associated funding ran out 51; and

(ix) referred to the ANU’s Termination of Employment Policy 52 which stated that the termination of a staff member’s employment will occur automatically at the end of a casual period of employment unless there is mutual agreement to enter into another contract53.

The Relevant Legislation

[36] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

[37] To determine whether Dr Lewis’ application was made within the statutory timeframe specified in s.366 of the Act it is first necessary to determine if and when Dr Lewis’ employment ceased.

[38] By way of background and consistent with the Full Bench’s decision in Hewitt v Topero Nominees Pty Ltd 54 (Hewitt) it is not necessary for the Commission to determine whether Dr Lewis was dismissed. As the Full Bench stated in Hewitt:

“[50]... we do not accept that the Commission needs to be satisfied that the applicant has been ‘dismissed’ from their employment before holding a s.368 conference. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.”

[39] Also relevant is the Full Bench’s observation in Hewitt that:

“[35]... Except in relation to an extension of time application, there is nothing in the Subdivision which contemplates the receipt of evidence by the Commission or the making of a determination requiring findings of fact.”

Has Dr Lewis’ employment ceased?

[40] The ANU submitted that Dr Lewis’s employment ceased on 11 September 2013 which was the last time that he worked for the ANU. Conversely, Dr Lewis submitted that his employment ceased on 2 September 2014 when he was informed by the ANU that he was no longer employed by the ANU or, in the alternative, 7 August 2014 as that was when he first learned that his contract had been terminated.

[41] What can be adduced from the evidence before the Commission is:

the last time Dr Lewis worked for the ANU was in September 2013;

the ANU has not provided Dr Lewis with one hour’s notice of termination or payment in lieu of notice as per his employment contract;

Dr Lewis acknowledged that at the time he sent his email of 13 September 2013 to Professor Dowding, he knew that he would not be getting any paid work “Because I’d already discussed it with Keith and it happened before in previous contracts” and that there was no agreement about the provision of further work;

in his response to that email, Professor Dowding indicated that he would “endeavour to get some more money” and that he hoped “… to give you new work in the future”(emphasis added);

Dr Lewis did not contact the ANU or Professor Dowding enquiring about his employment status between 13 September 2013 and 3 July 2014;

custom and practice regarding ANU non-ongoing contracts was that they automatically terminated when the associated funding ran out;

Dr Lewis’ email of 2 September 2014 (see paragraph [21] above) in which he states “In any case, the ANU’s position, in line with what Dowding told me last September, effectively removed me from casual pool” (underlining added) reinforces such a view; and

the ANU’s Termination of Employment Policy stated that that the termination of a staff member’s employment will occur automatically at the end of a casual period of employment unless there was mutual agreement to enter into another contract.

[42] In short, the evidence supports a finding that Dr Lewis’ employment ceased on 11 September 2013.

[43] Dr Lewis submitted in his outline of submissions that his employment had been terminated on 16 July 2014 when his employment record on the ANU’s HRMS was terminated. The ANU submitted that the termination of the employment record had no contractual effect and does not terminate the employment of an employee. Further, the ANU has consistently advised Dr Lewis that this action did not equate to a termination of his employment - see Mr Will’s email of 20 August 2014 and Ms Austin’s email of 2 September 2014. Ms Galbraith, however, put it most clearly in her email to Dr Lewis of 5 September 2014 (see paragraph [22] above) when she said “The closure of this record is referred to in the HRMS as a termination of the record. It is not a termination of employment ... Record termination is a routine administrative task.”

[44] Based on the material before the Commission, I find that the termination of Dr Lewis’ employment record in the ANU’s HRMS did not equate to a termination of his employment.

[45] What then is the significance, if any, of the ANU’s failure to provide notice of termination or payment in lieu of notice to Dr Lewis? While the failure to do so may constitute a breach of contract, it does not of itself alter the situation. The evidence in this matter indicates that in September 2013 the funding which supported Dr Lewis’ work had been fully expended. Further, in the absence of further funding, there was no work for Dr Lewis to do. In other words, his employment had ceased in September 2013.

[46] Taking into account all of the above, I find that Dr Lewis’ employment ceased on 11 September 2013, being the last day he worked for the ANU. Accordingly the 21 day statutory timeframe for the lodging of his general protections application should be calculated based on that date. Relying on that date means that his general protections application was lodged 351 days outside the statutory timeframe.

Whether to allow a further period for the application to be made

[1] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[2] As noted at paragraph [28] above, Dr Lewis submitted that the reason for the delay in lodging his application was the ANU’s constant refusal to answer any of his employment status queries from 7 August 2014.

[3] For its part, the ANU submitted that as Dr Lewis was not entitled to rely on the closure of his employment record on the ANU’s HRMS as termination of his employment, therefore there was no valid reason for the delay in bringing his application. The ANU further submitted Dr Lewis had not otherwise explained the delay in bringing his application almost one year after what, it considered to be, the actual end of his casual employment in September 2013.

[4] A close examination of the email exchanges between Dr Lewis, Ms Austin and Mr Will over the period July to September 2014 indicates that it was not until Ms Galbraith’s email of 5 September 2014 (see paragraph [22] above) that the ANU explicitly stated that it considered that Dr Lewis’ employment had “… ended in August 2013 as per the terms of your non-ongoing employment contract dated 18 November 2011.” I note however that it could be inferred from both Dr Lewis’ employment history, which was emailed to him by Ms Austin on 7 August 2014, and Ms Austin’s subsequent email of 2 September 2014 that his employment with the ANU had ended.

[5] Further, there are inconsistencies in Dr Lewis’ evidence on the question of when he became aware that his employment had ended and between his evidence and some of his emails referred to above. For example, Dr Lewis’ evidence under cross examination when responding to questions about his email of 13 September 2013 to Professor Dowding was that he knew he would not be getting any paid work “Because I’d already discussed it with Keith and it happened before in previous contracts” (see paragraph [30](xii) above). This suggests that Dr Lewis knew in September 2013 that his employment had ended. His email of 2 September 2014 (see paragraph [21] above) in which he states “In any case, the ANU’s position, in line with what Dowding told me last September, effectively removed me from casual pool” (underlining added) reinforces such a view.

[6] Drawing on this analysis and in the absence of more compelling evidence, I am unable to conclude with any confidence that Dr Lewis was aware in September 2013 that his employment with the ANU ended at that time. This supports a finding that there was a reason for the delay in Dr Lewis making his application.

[7] However, another relevant consideration is the absence of any contact between Dr Lewis and the ANU regarding his employment status from the time of his email exchange with Professor Dowding on 13 September 2013 until his email to Professor Dowding on 3 July 2014. Even allowing for Dr Lewis’ broken collarbone in October 2013, the absence of any contact on this issue is particularly surprising given Dr Lewis’ evidence under cross examination that Professor Dowding had indicated to him the possibility of further work in February 2014. This gap diminishes the weight that can be attached to the reason for the delay in Dr Lewis lodging his application.

(b) Any action taken by the person to dispute the dismissal

[8] Dr Lewis did not address this point.

[9] The ANU submitted that as Dr Lewis had incorrectly focussed on 16 July 2014 as his termination date there had been no action taken to dispute the dismissal because there was no dismissal on that date.

[10] As noted at paragraph [53] above, there was no contact between Dr Lewis and the ANU regarding his employment from 13 September 2013 until 3 July 2014. This period of inactivity on this front is followed by a flurry of emails from Dr Lewis to the ANU seeking to clarify his employment status and requesting information/documents to support his s.372 general protections application.

[11] Based on the material before the Commission, it was not until 7 August 2014 that Dr Lewis took any action which could be construed as disputing the cessation of his employment. In the circumstances, I consider this issue to be a neutral consideration.

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

[12] Dr Lewis made no submission on this issue.

[13] The ANU submitted that the delay of almost 12 months in bring this application will cause prejudice to the University because the lapse will mean that evidence to defend the application will be more difficult to obtain and present.

[14] Given the material and evidence presented in these proceedings, I am not persuaded by the ANU’s submission. Accordingly, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[15] Dr Lewis did not address this issue.

[16] The ANU submitted that Dr Lewis’ application was without merit and that for that reason alone an extension of time should not be granted.

[17] I have previously found that Dr Lewis’ employment ceased on 11 September 2013. This is some seven months before Dr Lewis submitted his complaint about Professor Wanna to the ANU Vice Chancellor. This clearly makes it difficult to sustain an argument that cessation of Dr Lewis’ employment was related to his making that complaint.

[18] In those circumstances, I consider the merits of Dr Lewis’ application to be less than compelling.

(f) Fairness as between the person and other persons in a like position

[19] No views were expressed on this point. I therefore consider the issue to be a neutral consideration.

Conclusion

[20] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 55(Nulty) in the following way:

“[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.”

[21] The circumstances in this matter relating to the lack of clarity regarding Dr Lewis’ employment status arguably constitute “a situation which is out of the ordinary course, unusual, special or uncommon” to draw on the decision in Nulty. However, the less than compelling merits of the Dr Lewis’ application weigh very heavily against the granting of a further period for the making of an application under s.365. The lack of contact by Dr Lewis with the ANU and Professor Dowding between September 2013 and 3 July 2014 regarding Dr Lewis’ employment status also weighs against the granting of a further period.

[22] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365.

[23] Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be separately issued.

Appearances:

C Lewis on his own behalf.

M Will for the Respondent.

Hearing details:

2014.

Canberra:

October 23.

Printed by authority of the Commonwealth Government Printer

1 C2014/5506

2 The letter of offer states that “If the external funding that supports your continuing (contingent funded) appointment ceases, your employment will also cease unless there is an opportunity of transfer within the University.” Exhibit W2 at Annexure A

3 Exhibit W2 at Annexure B

4 AE878801

5 The Australian National University Enterprise Agreement 2013-2016 - AE406362

6 Exhibit W2 at Annexure C

7 Ibid

8 Transcript at PN776

9 Exhibit L1 at paragraph 9

10 Ibid at Attachment I

11 Exhibit W1

12 Exhibit W2 at Annexure D

13 Ibid

14 Ibid

15 Exhibit L1 at Attachment C

16 Exhibit W2 at Annexure D

17 Ibid

18 Ibid

19 Ibid

20 Transcript at PN773-774

21 Ibid at PN778

22 Ibid at PN737

23 Exhibit L1

24 Ibid at paragraph 6

25 Transcript at PN112

26 Ibid at PN114

27 Ibid at PN130

28 Ibid at PN143-150

29 Ibid at PN151-156

30 Ibid at PN161

31 Ibid at PN163

32 Ibid at PN209

33 Ibid at PN325

34 Ibid at PN229

35 Ibid at PN329

36 Ibid at PN408-420

37 Ibid at PN445

38 Exhibit W2 at Annexure C - in the email exchange Dr Lewis advises Professor Dowding that he has broken his collarbone and therefore “... wont be doing much on statefederal mps for a while ...”

39 Transcript at PN798

40 Ibid at PN797

41 Ibid at PN799

42 Ibid at PN804

43 Exhibit W2

44 Transcript at PN476

45 Ibid at PN489-490

46 Ibid at PN492

47 Ibid at PN590-591

48 Ibid at PN662

49 Ibid at PN710

50 Ibid at PN716

51 Ibid at PN717-721

52 Exhibit W2 (see clause 4)

53 Transcript at PN722

54 [2013] FWCFB 6321

55 (2011) 203 IR 1

Chris Lewis v The Australian National University

[2015] FWC 2045

25 MARCH 2015

DECISION