Dean Adam Jones v Bondi Beach Pty Ltd
[2024] FWC 2019
•30 JULY 2024
| [2024] FWC 2019 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dean Adam Jones
v
Bondi Beach Pty Ltd
(C2024/3219)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 30 JULY 2024 |
Application to deal with contraventions involving dismissal
Mr Dean Adam Jones made a general protections application involving dismissal pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) on 17 May 2024.
Section 365(1) of the Act prescribes that a general protections application involving dismissal must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). As the Form F8 application records, the application was filed outside the 21-day statutory timeframe. Accordingly, Mr Jones requires an extension of time.
The application has been made against Bondi Beach Pty Ltd. In its Form F8A response to the application, the respondent objects to Mr Jones’ application on the basis that it is out of time and further, because it contends that Mr Jones was not dismissed by it. Rather, the respondent contends that Mr Jones’ employment ended by mutual agreement.[1]
For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.
Relevant context
Mr Jones commenced employment with the respondent on 20 February 2024.[2] Mr Jones performed the role of Venue Manager.[3] Mr Jones appears to have been the subject of a proposed conduct or performance review arising from concerns raised by employees of the respondent about Mr Jones’ management style, the specifics and extent of which are in dispute.
Mr Jones contends that he was notified of his dismissal on 16 April 2024 at a meeting with the respondent’s owner, Mr Mykal Bartholomew.[4] It is not in dispute that Mr Jones’ employment ended on 24 April 2024.[5]
Having regard to the content of Mr Jones’ Form F8 application, for the application to have been within time it must have been filed by midnight on 15 May 2024. Mr Jones’ application was filed on 17 May 2024. The application was therefore filed two days outside the statutory timeframe for lodgement.
Statutory framework
The Commission has the power pursuant to s 366(2) of the Act to extend the time within which a general protections application involving dismissal can be made only if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[6] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.[7]
Under s 366(2) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:
(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 similar position.
Noting the dispute between the parties as to whether Mr Jones was dismissed or whether his employment ceased by mutual agreement as the respondent contends, I will proceed on the assumption – without deciding – that Mr Jones was dismissed by the respondent solely for the purposes of considering whether to grant a further period having regard to the matters in s 366(2) of the Act.
I consider these matters in the analysis that follows.
Consideration
Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable[8] or reasonable[9] 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.[10]
The period of the delay to be considered is the period commencing immediately after the 21-day timeframe for lodging the application has expired.[11] However, the circumstances from the time the dismissal took effect must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[12]
Mr Jones contends that the delay was occasioned by his “accidental” lodgement of an application for an unfair dismissal remedy on 15 May 2024, within the 21-day period.[13] Mr Jones says that he submitted the “wrong form” and asked the Commission’s staff to “cancel” his unfair dismissal application so that he could instead file a Form F8 general protections application. Mr Jones contends that by the time he filed the general protections application, the 21-day timeframe had lapsed.
At the determinative conference, Mr Jones acknowledged that he was not eligible to make an unfair dismissal application given that he had been employed by the respondent for a period of less than six months. However, Mr Jones further held the view that his contentions of alleged bullying at the workplace were always an “underlying factor” such that a general protections application was appropriate to his circumstances.
The Commission’s records reflect that Mr Jones lodged a Form F2 unfair dismissal application against the respondent on 15 May 2024, being the 21st day following his dismissal. The file indicates that during a telephone discussion with Mr Jones on 17 May 2024, the Commission explained to him that based on the dates recorded in his application, he did not meet the minimum employment period. Mr Jones discontinued his unfair dismissal application during this telephone call, which was acknowledged in correspondence sent by the Commission to Mr Jones at 9:58 am that day. Mr Jones filed his Form F8 general protections application shortly after, at or about 11:12 am on 17 May 2024.
As part of his explanation for the delay, Mr Jones contends that it was a distressing period for him. In his Form F8 application, Mr Jones submits that the stress has impacted his health and led to depression and anxiety which has impacted upon his capacity to work.[14] Further, Mr Jones submits that he has not previously had a reason to make an application in the Commission and is not experienced with the process.
I am not satisfied that Mr Jones has provided an acceptable or reasonable explanation for the delay. While I accept that Mr Jones felt distressed by the circumstances which led to the cessation of his employment, such a response is not itself exceptional or indeed, uncommon. Mr Jones has not explained how these matters contributed to the delay in lodging the application. Nor has Mr Jones advanced any medical evidence which demonstrates that he was unable to lodge his general protections application within time, or prior to 17 May 2024. On the contrary, the material before the Commission discloses that Mr Jones’ health related concerns did not prevent him from lodging a Form F2 application for an unfair dismissal remedy on 15 May 2024, within the 21-day timeframe.
I am not persuaded by Mr Jones’ contention that he “accidentally” filed an unfair dismissal claim instead of a general protections application on 15 May 2024. The evidence, including the following matters, supports a conclusion that Mr Jones intended to pursue an unfair dismissal application against the respondent:
(a)Mr Jones’ 9 May 2024 correspondence to the respondent, sent prior to the lodgement of his Commission applications, stated amongst other things that Mr Jones was writing to formally raise his concern that he had been “unfairly dismissed,” that the dismissal was “unjust,” and that it was not based on “valid reasons.” These are terms that are unique to the unfair dismissal regime and bear no relationship to the considerations arising in respect of general protections matters; and
(b)Mr Jones’ unfair dismissal application provides an explanation of why Mr Jones considers his dismissal is “unfair,” including due to the lack of warnings or the implementation of a performance improvement plan.
Nor do I consider Mr Jones’ contention that he accidentally filed an unfair dismissal application to be consistent with the Commission’s records. The Commission’s file demonstrates that Mr Jones was advised on 17 May 2024 that he had not met the minimum employment period and was therefore ineligible to make an unfair dismissal application, a matter which Mr Jones regarded to be unfair. Mr Jones was informed that a general protections application may be a possible alternative. To this end, Mr Jones states in his general protections application that he “applied for unfair dismissal within the 21 day period” but “after speaking with Fair Work (6 month probation period) had to cancel that lodgement and begin again.”
These matters are at odds with a conclusion that Mr Jones mistakenly filed an unfair dismissal application instead of a general protections application on 15 May 2024. I am satisfied, on the evidence, that Mr Jones chose to first make an application seeking an unfair dismissal remedy. It was only upon learning that this remedy was not available to him that Mr Jones filed a different application in the Commission alleging a breach of the general protections provisions of the Act. While I accept that Mr Jones filed his general protections shortly after discontinuing his unfair dismissal application this matter does not, in my view, provide an acceptable explanation for the delay in lodging his general protections application.
In reaching this conclusion, I have taken into consideration Mr Jones’ contention that he has not had prior experience filing applications in the Commission. Such unfamiliarity is not exceptional and ignorance of one’s rights will not usually provide an acceptable explanation for the delay.[15] The Commission’s website provides a range of information about the types of applications that can be made, the eligibility rules, and the timeframe within which to lodge them.
I have also considered Mr Jones’ submission that the respondent made a payment to him “post the 21 day lodgement period.”[16] While not expressly contended, I have considered whether this matter provides a reasonable explanation for any part of the delay. I do not consider that it does. Mr Jones raised with the respondent on 9 May 2024, within the 21-day statutory timeframe, that he did not regard his final payment to be accurate. Mr Jones has not drawn a connection between his concerns about this matter and the delay in lodging his general protections application. Nor do I consider that such a connection arises. It was not contended that Mr Jones deferred making the application pending resolution of the payment issue by the respondent. Further, there is no basis to conclude, on the material, that the respondent’s payment to Mr Jones had the effect of altering the effective dismissal date.
I do not find that any of the matters relied upon by Mr Jones as reasons for the delay, individually or collectively, provide an acceptable or reasonable explanation for the delay. This weighs against the grant of an extension of time.
Action taken by the person to dispute the dismissal
Where an applicant takes action to dispute a dismissal (other than by lodging the relevant application), it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[17]
The evidence discloses that Mr Jones wrote to the respondent on 9 May 2024 to “formally raise” concerns about his dismissal. The letter advised that if a satisfactory resolution was not reached within seven days, Mr Jones “will have no choice but to seek legal advice and pursue appropriate legal action.”[18]
I am satisfied that Mr Jones’ 9 May 2024 letter demonstrates that Mr Jones took a positive step to contest his dismissal. This weighs in favour of the grant of an extension of time.
Prejudice to the employer
I cannot identify any particular prejudice that would accrue to the respondent were an extension of time to be granted in Mr Jones’ favour. The respondent’s submissions do not persuade me otherwise.
The mere absence of prejudice is not in itself a factor that would point in favour of the grant of an extension of time. I consider this to be a neutral factor.
Merits of the application
For this matter to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[19] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mr Jones’ application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[20]
In his general protections application, Mr Jones contends as follows:
“Tuesday 18th March presented medical certificate for 1 week sick leave due to a broken toe, all senior management had knowledge of the breakage however continued to have me rostered on my feet front of house for 12-14 hrs per day.
Thursday 21 March recommenced work as usual, rostered on a 12 hour”
The application further contends that Mr Jones was subjected to “consistent bullying behaviour” in the form of exclusion, withholding of information, psychological harassment and manipulative behaviour. The attachment to Mr Jones’ application sets out matters which are said to provide support for this contention.
The respondent rejects each of Mr Jones’ contentions. It submits that the cessation of Mr Jones’ employment does not contravene the general protections provisions of the Act. The respondent’s position is that Mr Jones’ employment ceased, by agreement, following allegations of bullying behaviour by Mr Jones, and concerns with respect to Mr Jones’ conduct and performance in his role.[21]
The parties hold substantially different views as to the matters that preceded the cessation of employment. These events turn on contested points of fact, which have not been the subject of evidence before me, or tested under cross-examination. Accordingly, I am unable to form a view about these contested matters. However, I observe that were the application to proceed, Mr Jones would be required to precisely articulate the workplace right he relies upon having regard to the considerations in ss 340 and 341 of the Act, and demonstrate why he says that the dismissal was for a prohibited reason such as to ground an application under s 365 of the Act. Having regard to these matters, I regard the merits of Mr Jones’ substantive general protections application to be a neutral factor in my assessment of whether to grant an extension of time.
Fairness as between Mr Jones and other persons in a similar position
Mr Jones contends that his dismissal was unfair. The respondent’s position is that Mr Jones was treated in a fair manner and consistent with its approach to its other employees.
Applications to extend time generally turn on their own facts. Neither party has brought to my attention any matters of fairness in the relevant sense and nor do I consider that any matter arises on the evidence before the Commission. Accordingly, this factor is neutral in my consideration.
Are there exceptional circumstances?
The statutory time limit that applies to the exercise of a person’s right to bring a general protections application involving dismissal reflects the parliament’s intention that such rights be exercised promptly. The test of exceptional circumstances in s 366(2) of the Act establishes a high hurdle for an applicant for an extension of time.[22] Whether the application is lodged two days outside the statutory time limit or more, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.[23]
While Mr Jones took a step to dispute his dismissal with the respondent, he has not provided an acceptable or reasonable explanation for the delay and this weighs against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together.
Order and disposition
As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Mr Jones’ general protections application may be made is not enlivened. It is therefore unnecessary for me to determine the respondent’s second objection to the application, that Mr Jones was not dismissed.[24]
Mr Jones’ general protections application is dismissed.
DEPUTY PRESIDENT
Appearances:
D Jones for himself.
M Bartholomew and A Jacoora for the respondent.
Hearing details:
2024.
Melbourne:
July 26.
[1] Form F8A at 1.2
[2] Form F8 at 1.2
[3] Attachment to Form F8 at p.1
[4] Ibid at 1.3
[5] Ibid at 1.4
[6] [2011] FWAFB 975; 203 IR 1
[7] Ibid at [13]
[8] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 at [9]
[9] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16]
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901; 273 IR 156 at [39]
[11] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]
[12] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]
[13] Mr Jones’ unfair dismissal application was allocated matter number U2024/5421
[14] Form F8 at 3.1
[15] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1 at [14]
[16] Mr Jones’ submissions dated 28 June 2024 at p.1
[17] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
[18] Letter from Mr Jones to Mr Bartholomew dated 9 May 2024 at [5]
[19] Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 at [71]
[20] Kyvelos v Champion Socks Pty Ltd[2000] AIRC 540, Print T2421 at [14]
[21] Form F8A at 2.1, 3.1
[22] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth[2014] FWCFB 2288 at [21]
[23] See Cem Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479, upheld on appeal in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149
[24] See [10] of this decision
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