Daniel Maddern v Slabtec Pty Ltd

[2022] FWC 2396

[2022] FWC 2396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Daniel Maddern
v

Slabtec Pty Ltd

(C2022/2870)

DEPUTY PRESIDENT LAKE BRISBANE, 8 SEPTEMBER 2022

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

1. Mr Daniel Maddern (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by Slabtec Pty Ltd (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Melbourne on 10 May 2022. The Applicant began his employment on 31 March 2022. The Applicant was dismissed by the Respondent on 6 April 2022.

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. To be within time, the Applicant should have lodged his application on or before 27 April 2022 and thus was 13 days out of time.

Chronology

1. On 14 April 2022, the Applicant called the Fair Work Ombudsman (Ombudsman) to make a complaint. Following the telephone call, the Ombudsman sent an email to the Applicant with further information.

1. On 15 April 2022, the Applicant made a request for an appointment through the Workplace Advice Service.

1. On 19 April 2022, the Workplace Advice Service confirmed that the Applicant had an appointment with a lawyer at 2.00 pm on 25 April 2022 – which is a national public holiday.

1. On 21 April 2022, the appointment was cancelled.

1. On 25 April 2022, the Applicant filed an unfair dismissal application with the Commission.

1. On 27 April 2022, Coutts Lawyers and Conveyancers attempted to call the Applicant. The Applicant did not answer. At 10.02 am, Coutts Lawyers emailed the Applicant and asked him to return their call. The Commission also made multiple attempts to contact the Applicant on his nominated telephone number. At 11.56 am, a letter was sent to the Applicant advising him that he may not meet the minimum employment period as prescribed by s.394 of the Act. The Commission requested that further information regarding the Applicant’s employment period be provided to the Commission by 11 May 2022.

1. On 29 April 2022, the Applicant then responded to the email from Coutts Lawyers and proceeded to make an appointment for 4 May 2022.

1. On 4 May 2022, a lawyer from Coutts Lawyers attempted to call the Applicant five times. The Applicant then returned the lawyer’s call.

1. On 6 May 2022, the Applicant provided the Commission with a Form F1 requesting to change his unfair dismissal application to a general protections application. This form also contained information as to why his application was late. The Applicant also provided correspondence between himself and the Fair Work Ombudsman.

1. On 10 May 2022 at 9.10 am, the Commission attempted to contact the Applicant on his nominated telephone number. He did not answer. At 6.14 pm, the Applicant lodged his general protections application (the application).

1. On 11 May 2022 at 10.12 am, the Commission sent an email to the Applicant following up on the Form F1 and the Applicant’s unfair dismissal application. At 11.22 am, the Applicant telephoned the Commission and withdrew his unfair dismissal application.

1. On 9 August 2022, I was allocated the matter.

1. On 19 August 2022, I issued directions to the parties for a telephone hearing on 5 September 2022 at 2.00 pm to determine whether the application was lodged in time and if not, whether to allow the Applicant an additional period within which to lodge his application.

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.

Was the application lodged within time?

1. Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.

1. The Applicant lodged his application on 10 May 2022. He accepts that his application was made some 13 days outside of the 21 days required under s.366(1) of the Act. The Applicant requests a special exception be made as he filed a Form F2 – Application for a remedy for unfair dismissal on 14 April 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. Further, the Respondent refutes the claim of the Applicant that he was dismissed.

The Applicant’s submissions

1. The Applicant’s submissions can be summarised as follows.

1. The Applicant was required to file submissions relating to the jurisdictional objection by 26 August. The Applicant failed to meet this deadline. I decided to grant an extension to the Applicant to allow him to file his submissions and provide reasons for failing to comply with a Direction from the Commission by 31 August. The Applicant again failed to meet this deadline. As such, I informed the parties that I would rely on the Applicant’s Form F8, attachments to the Form F8, and any reasons provided during the hearing.

1. The Applicant alleges that the information provided by the Ombudsman was misleading and resulted in him incorrectly filing an unfair dismissal application. The Applicant filed email correspondence from the Ombudsman which contained links to the Commission’s website specifically to the Workplace Advice Service and information regarding general protections applications.

1. The Applicant asserts that seven days passed due to his appointment being booked on ANZAC Day. He was only able to seek advice about his application on 29 April.

1. The Applicant submitted that he made an attempt to complete an application and forwarded said application to his legal advisor.

1. For these reasons the Applicant submits that there are exceptional circumstances.

The Respondent’s submissions

1. The Respondent’s submissions can be summarised as follows.

1. The Respondent relied on the fact that the Applicant filed his general protections application 34 days after dismissal.

1. The Respondent asserts that the Applicant did not take any action to dispute his dismissal, only action was taken to dispute his pay.

Consideration of whether a further period should be granted

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 barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

“[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. For the Applicant’s application to proceed, it is necessary for him to obtain an extension of time under s.366(2) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act.

1. Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.366(2) of the Act.

Consideration

Reason for the delay (s.366(2)(a))

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[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] 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. It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

1. The Applicant expressed that he was misled by the Ombudsman. However, upon examination of the email provided, the Ombudsman directed the Applicant to make a general protections application. If the Applicant followed this link, he would have filed the correct application and been within time.

1. The Workplace Advice Service is not designed to replace an individual’s own efforts in determining which application to lodge. In communications with the Service to individuals who request an appointment, references are repeatedly made to the 21-day timeframe and that individuals should not expect to have an appointment before the timeframe expires.

1. Based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.

Action taken to dispute the dismissal (s.366(2)(b))

1. The Applicant did not dispute his dismissal generally with the Respondent.

1. This factor therefore does not weigh in favour of an extension of time.

Prejudice to the employer (s.366(2)(c))

1. The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.

Merits of the Application (s.366(2)(d))

1. In Kornicki v Telstra-Network Technology Group,[8] 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. However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]

1. Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.

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

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.[10]

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

1. I order that the application be dismissed.

DEPUTY PRESIDENT

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

[2] [2019] FWC 25.

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

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

[5]   [2018] FWCFB 901.

[6] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

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

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

[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

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

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