Eric Felipe v Your Bookkeepers Online Pty Ltd (part of Moore Stephens NSW)

[2020] FWC 1620

[2020] FWC 1620

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Eric Felipe
v
Your Bookkeepers Online Pty Ltd (part of Moore Stephens NSW)
(C2020/632)

DEPUTY PRESIDENT BOYCE SYDNEY, 17 APRIL 2020

Application to deal with contraventions involving dismissal — request for extension of time to file application — reasons for delay — where part of the period of delay is unaccounted for — where part of the period of delay is not exceptional — where there are no exceptional circumstances to enliven discretion to grant extension of time — application dismissed

Introduction

[1] On 4 February 2020, Mr Eric Felipe (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Applicant did so by emailing a Form F8 with the Commission’s Registry in Adelaide (General Protections Application). The Applicant claims that his employment with Your Bookkeepers Online Pty Ltd (Respondent) was terminated by the Respondent on 6 December 2020 in contravention of Part 3-1 of the Act.

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect.

[3] Prima facie, the Applicant appears to have lodged his application 39 days outside of the statutory time limit. To be within time, the Applicant should have lodged his Application on or before 27 December 2019.

[4] On 20 March 2020, I convened a hearing by telephone to determine whether to allow the Applicant an additional period within which to lodge his application. Having considered the evidence and submissions of both parties, I have determined that there are no exceptional circumstances that would enliven my discretion under s.366 of the Act. Accordingly, the application must be dismissed. My reasons for this decision follow.

Permission to be legally represented

[5] The Respondent sought permission to be represented by Mr Stephen McCarthy (Solicitor, Holman Webb Lawyers)at the hearing. The Applicant opposed this application.

[6] The thrust of the Applicant’s objection was that he would be disadvantaged if the Respondent had a legal representative (as the Applicant himself has no legal training). He also submitted that the Respondent was a sophisticated employer, who employed persons who ought to be able to represent the Respondent in lieu of a legal practitioner.

[7] Despite the Applicant’s objection, I granted the Respondent permission to be legally represented in this matter. I did so having had regard to the criteria in s.596 of the Act, specifically noting that this matter pertains to a jurisdictional objection (which is, by its nature, inherently complex). 2 I note that lawyers have, first and foremost, a duty to courts and tribunals, and I made my decision partly on the basis that the involvement of a legal practitioner would assist the Commission (from an efficiency perspective) in addressing any potential issues of complexity or controversy before me. Importantly, in my view, it would not assist the Commission in these proceedings to have both parties unrepresented.

Employment and termination

[8] The Applicant’s employment with the Respondent commenced on 1 February 2017. As per the contract of employment between the parties, the Applicant was employed in the position of “Partner” — though his substantive duties may be better described as an “Accountant”.

[9] On 6 December 2019, the Applicant attended his workplace to find that he was unable to access the Respondent’s IT system. On that same day, and by way of a telephone call, the Applicant was informed by Ms Heather Levian (Human Resources Manager for the Respondent) that the Applicant’s employment was to be terminated effective immediately.

[10] On 19 December 2019, the Respondent emailed the Applicant and attached a document titled “Termination Letter”. That letter states that the Respondent terminated the Applicant’s employment on 6 December 2019, and was signed by Mr David Cox (Managing Partner of the Respondent).

[11] It is important to note that there is no dispute between the parties that the Applicant was dismissed effective 6 December 2019 (the letter dated 19 December 2019 subsequently confirming same).

Relevant law

[12] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are outlined in s.366(2) of the Act, which reads:

“366 Time for application

…

(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.”

[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3 A decision whether to extend time under s.366(2) involves the exercise of a discretion.4

[14] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. In Nulty v Blue Star Group Pty Ltd (Nulty), 5 the meaning of “exceptional circumstances” was addressed by the Full Bench of Fair Work Australia as follows:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance”.

(emphasis added)

[12] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 6

[15] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[16] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.

[17] 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. 7 

Applicant’s explanation for the delay

[18] The Applicant submits there were two substantive reasons for the delay.

[19] Firstly¸ the Applicant says he initially filed the “wrong” application prior to the statutory deadline. That is to say, on 24 December 2019, the Applicant filed a Form F9 with the Commission, whereby the Applicant alleged his dismissal from employment constituted an unlawful termination under s.772 of the Act (Wrong Application Reason).

[20] On 8 January 2020, the Applicant says that he discussed his case with the Commission’s registry staff. During that discussion, the Applicant says that he was advised that his claim would be more “suited” to a claim for breach of the general protections involving dismissal. In light of this alleged advice, the Applicant discontinued his unlawful termination application on 10 January 2020.

[21] Secondly¸ the Applicant says that he attempted to file his General Protections Application on 10 January 2020, but that application was rejected by the Commission on the basis that the application had not been validly submitted (Invalid Application Reason). More specifically, the Applicant attempted to file his General Protections Application by attaching a completed Form F8 to an email sent to the Commission’s registry in Adelaide. The Applicant received notice from the Commission on the same day, informing him that the application was invalid, and was not taken to have been filed. However, the Applicant says he did not “notice” that email until 3 February 2020.

[22] On 3 February 2020, the Applicant emailed the Commission regarding his defective General Protections Application. In that email, the Applicant states that he did not see the notice from 10 January 2020 as he had been “away travelling overseas”. It is important to note that the Applicant was still overseas when he sent that email. Further, in that same email, the Applicant discloses that he would not be returning to Australia until 14 February 2020.

[23] On the same day, the Applicant attempted to refile his General Protections Application. He did so by emailing that application to the Adelaide Registry, and providing a “Google Docs” link to download the voluminous materials attached to his Form F8.

[24] On 4 February 2020, the Commission informed the Applicant that it could not accept an application sent via links to Google Docs and that his application was not accepted for filing. The Applicant replied by resending his Form F8, and related documentary materials, in a series of further (multiple) emails. Later that same day, the Commission advised the Applicant that it had accepted his General Protections Application as validly filed.

Consideration

[25] I reject that the Wrong Application Reason leans towards a find of exceptionality. Whether an applicant’s prospects of success would be greater if he pursued one purported cause of action arising under the Act, as opposed to another, is a legal consideration. That the Applicant was a lay person who, having not had the benefit of legal advice (or more general advice from the Commission’s registry), prior to the filing his initial claim, is not to the point. The Wrong Application Reason is (in essence) a submission as to the Applicant’s ignorance of the law. With respect, the Applicant’s naivety in these circumstances is not unusual. It is an ignorance likely to be common amongst many self-represented persons who make applications to the Commission. I do not accept that there is anything inherently out of the ordinary with the Wrong Application Reason.

[26] Equally, I reject that the Invalid Application Reason lends towards a finding of exceptionality. This reason goes to the period between 10 January 2020 (being the Applicant’s first attempt to file his General Protections Application) and 4 February 2020 (being the date that the General Protections Application was actually accepted as filed by the Commission). The Applicant’s reason for that period of delay — that he was away travelling overseas and had not seen the email from the Commission rejecting his application— is not an exceptional circumstance. Overseas travel cannot be described as “out of the ordinary course”. I say so in view of the fact that the Applicant still had access to his email whilst overseas (and thus had access to email correspondence from the Commission whilst overseas).

[27] On the evidence, it is not apparent to me that the Applicant’s overseas travel prevented him from filing his General Protections Application at any point prior to or post 10 January 2020. The Applicant was subject to the same rules, regulations, and requirements that ordinarily apply to the filing of such an application. Those rules, regulations, or requirements do not change simply because an applicant is overseas. Regardless of where the Applicant was located, there is no evidence that he was unable to communicate with the Commission (by email or phone). These circumstances are those that otherwise ordinarily apply.

[28] The Applicant’s attempts to file the Form F8 and accompanying material in a form acceptable to the Commission is overstated as a reasonable explanation for his delay. The Applicant received an email from the Commission on 10 January 2020 informing him that his attempt to file his General Protections Application had failed. The Applicant did not respond to that email for 24 days. Again, the Applicant says that this delay was because he was overseas (and so did not notice the email from the Commission). As such, I consider it more appropriate to characterise the reason for delay as a mere failure to attend to emails, and promptly respond to such emails. The circumstances lending to the delay were entirely under the Applicant’s control. The Applicant caused the delay, and he did so in a manner that is entirely unexceptional.

[29] Irrespective of the above, however, I further note there remains an unaccounted period between 8 January 2020 and 10 January 2020 (being the period between the Applicant being advised of the “suitability” of this unlawful termination application, and the day on which he filed his General Protections Application). The Applicant has provided no reason for that two-day delay. I take that period of delay as entirely unaccounted for.

[30] Having regard to the foregoing, I find that the Invalid Application Reason does not account for the entire period of the delay, in that the reasons provided lean away from any finding as to exceptional circumstances. Moreover, there is nothing exceptional about the reasons provided by the Applicant when viewed as a whole. The gravamen of the reasons provided, either individually or collectively, are entirely within the ordinary course. As such, in my view, the reasons advanced by the Applicant for delay weigh strongly against any finding of exceptional circumstances.

Action taken by the Applicant to dispute his dismissal

[31] I note that the Applicant attempted to discuss his dismissal with the Respondent on 18 December 2019 (being 12 days after his termination took effect). In these circumstances, I treat this criterion as being a neutral consideration, as the actions taken by the Applicant occurred within the 21 day statutory deadline. This action is not connected to the reasons relied upon by the Applicant to otherwise explain his delay post the 21 day statutory deadline.

Prejudice to the employer

[32] The Respondent concedes that it has not suffered any material prejudice by the delay. That said, the Respondent submits that the mere absence of prejudice to a respondent is an insufficient basis to grant an extension of time. 8 I agree with the Respondent’s submissions on this point. As such, I take this factor to be a neutral consideration.

Merits of the application

[33] The principles stated in Kyvelos v Champion Socks Pty Ltd, ⁹ albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:

“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”. 10

[34] The Applicant’s General Protections Application appears to take umbrage with the procedure undertaken to terminate his employment. Put in the most general of terms (and I make no finding on the merits of the Applicant’s claim in doing so), the Applicant complains that the Respondent disavowed him of procedural fairness, and that in doing so contravened Part 3-1 of the Act. Further (and again I make no finding in this regard), the Applicant says that the Respondent’s actions in limiting his IT access on the day he was terminated constituted “coercion” within the meaning of s.343 of the Act.

[35] The Respondent says that the Applicant appears to have “misconstrued” the application of ss.340 and 343 of the Act in that the manner in which the Applicant has framed his claim is akin to an unfair dismissal claim (and not one arising from a breach of the general protection provisions of the Act). In short, the Respondent submits that neither the Applicant’s submissions, nor his evidence, identify any contravention of Part 3-1 of the Act at law.

[36] In these types of proceedings, it is not appropriate that I form any view (or make any findings) as to the merits of an applicant’s claim This is especially so given that any evidence relied upon to advance an Applicant’s claim is both incomplete and untested, and not formally articulated.

[37] In view of the foregoing, I consider that the merits of the Applicant’s claim become no more than a neutral consideration in these proceedings.

Fairness as between the Applicant and other persons in a like position

[38] Neither party identified a person in a like position to the Applicant. I find this factor to be a neutral consideration.

Conclusion

[39] In view of my reasons above, I am unable to identify any exceptional circumstances that would enliven my discretion to grant an extension of time to the Applicant to file his General Protections Application.

[40] The application is dismissed. An order to this effect will follow the publication of these reasons for decision.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for himself.

Mr Stephen McCarthy (Solicitor, Holman Webb Lawyers) appeared on behalf of the Respondent

Hearing details:

A hearing was conducted by telephone on 20 March 2020.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009, ss. 366(1) and (2).

 2   CEPU v UGL Resources Pty Limited (Project Aurora)[2012] FWA 2966 at [23] (Richards SDP).

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 4   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 5   [2011] FWAFB 975, cited with approval in Tamu v Australia for UNHCR [2019] FWCFB 2384 at [16] – [20].

 6   See: Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 (at [13]). See also: Griffiths v The Queen (1989) 167 CLR 372 at 379; 87 ALR 392; 41 A Crim R 163; 63 ALJR 585; [1989] HCA 39 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

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

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

9 (1995) 67 IR 298.

 10   Ibid at 299 to 300.