Gopalakrishnan v Engineering & Maintenance Solutions Pty Ltd ATF Engineering & Maintenance Solutions Unit Trust

[2016] FWC 2515

[2016] FWC 2515

DECISION

Fair Work Act 2009

s.365—General protections

Vignesh Gopalakrishnan

v

Engineering & Maintenance Solutions Pty Ltd ATF Engineering &

Maintenance Solutions Unit Trust T/A Engineering & Maintenance

Solutions Pty Ltd

(C2015/5974)

DEPUTY PRESIDENT KOVACIC CANBERRA, 20 APRIL 2016

Application to deal with contraventions involving dismissal - extension of time - no

exceptional circumstances warranting allowing a further period for the making of an

application - application dismissed.

[1]        Mr Vignesh Gopalakrishnan (the Applicant) made an application which was received

by the Fair Work Commission (the Commission) on 4 September 2015 under s.365 of the

Fair Work Act 2009 (the Act) alleging that he had been dismissed by Engineering &

Maintenance Solutions Pty Ltd ATF Engineering & Maintenance Solutions Unit Trust T/A

Engineering & Maintenance Solutions Pty Ltd (the Respondent) on 28 July 2015 in

contravention of the general protections provisions of the Act.

[2]        As the application had been lodged seventeen days outside the statutory timeframe for

lodgement, the Commission issued Directions on 11 September 2015 requiring the parties to

file an outline of submissions and any evidentiary material they intended to rely on regarding

the extension of time issue.

[3]        The application was heard on 2 and 19 November 2015, with the initial hearing

adjourned as the Respondent had not received a copy of the Applicant’s supplementary

submission and his first witness statement as they had been sent to an incorrect email address.

At the hearing, Ms Ruth Thevathasan appeared with permission for the Applicant, while

Mr Mark Gabsch, the Respondent’s Managing Director, appeared for the Respondent. The

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Applicant provided two witness statements, the first dated 18 September 2015 and the

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second	dated 5 November 2015.
[4]	For the reasons set out below I have concluded that I am not satisfied that there were

exceptional circumstances warranting the granting of a further period for the making of an

application under s.365 of the Act. Accordingly, the application will be dismissed.
[2016] FWC 2515
Background

[5]        The Applicant commenced employment with the Respondent on 10 November 2014

as a Project Manager.

[6]        On 26 July 2015 the Applicant lodged a general protections application not involving

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dismissal (the initial application) by email. The Commission’s electronic Case Management

System records indicate that the covering email accompanying the application stated, among

other things, “… things going around in my workplace isn’t quite good, they are framing me

up to terminate my position within next couple of weeks.”

[7]        On 28 July 2015 the Applicant was dismissed with effect from that day. The

termination letter stated, among other things, that:

“On 20th July you met with … In that meeting, you were advised that you were being

issued with two warnings due to several performance based issues over the past 6

months. You were issued with a formal ‘Employee Disciplinary File Note’ on this

date.

EMS considers that your performance & conduct are still unsatisfactory and have

decided to terminate your employment for the following reasons:

EMS have now another incident where Karthic [the Applicant] has failed to act within

his discipline as a mechanical engineer and signed off structural work for which he is

not qualified. … As a result of this neglect and preceding work performance written &

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final warnings, your employment will be terminated as of today.”

[8]        On 6 August 2015 the Commission issued a Notice of Listing regarding the

Applicant’s initial application, with the application listed for a telephone conference before

Commissioner Lewin on 24 August 2015. However, that telephone conference had to be

rescheduled as Commissioner Lewin was unwell. The application was subsequently relisted

for a telephone conference on 31 August 2015. The Commission’s electronic Case

Management System records regarding the initial application include the following file note

which was made following the telephone conference of 31 August 2015:

“File Note following Conference: A’s [Applicant’s] employment with R [Respondent]

has been terminated. There is an unresolved issue with regard to a workcover claim. A

was unable to say how he wished the matter to resolve. Commission instructed A to

advise FWC by COB Friday, 4 September 2015 if he wished to pursue an alternative

claim pursuant to s.365 of the FW Act.”

[9]        As previously mentioned, the Applicant’s general protections application involving

dismissal (the second application) was received by the Commission on 4 September 2015. In

his application, the Applicant contended that he had been dismissed in contravention of

ss.340, 351 and 352 of the Act which respectively deal with protection concerning the

exercise or non-exercise of a workplace right, discrimination and temporary absence due to

illness or injury.

[2016] FWC 2515

The Relevant Legislation

[10]      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.”

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

[11]      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

[12]      The Applicant submitted that at the telephone conference of 31 August 2015

Commissioner Lewin indicated he should seek legal advice, discontinue his initial application

and file a new application under s.365 of the Act. The Applicant also submitted that

Commissioner Lewin indicated at the conference that the new application would be accepted

out of time upon provision of those reasons. The Applicant further submitted that he

immediately sought legal advice through Victoria Legal Aid on 3 September 2015 when he

was referred to Justice Connect. The Applicant also contended that he met with Justice

Connect on 4 September 2015 and filed his second application later that day.

[13]      Beyond that, the Applicant contended that his initial application was the correct

application at the time, that he relied on the Notices of Listing regarding his initial application

in concluding that the application remained valid and correct in the circumstances and that

following the telephone conference of 31 August 2015 he took immediate steps to rectify the

situation and file the correct application. In his submissions, the Applicant relied on the

decision of Senior Deputy President O’Callaghan in Mr Gery Lane v Kangaroo Island Dive &

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Adventures Pty Ltd (Lane), adding that unlike in Lane, his initial application had been the

correct application at the time.

[14]      At the hearing the Applicant attested that he did not contact the Commission following

his dismissal to discuss the implications of his dismissal for his initial application, adding that

he was not aware that he had to lodge another application. The Applicant further attested he
[2016] FWC 2515

was aware that his initial application had been submitted on a form headed “Form F8C –

General Protections Application Not Involving Dismissal.” The Applicant also attested that he

filed his initial application because he wanted to protect his job as he thought he was about to

be dismissed, adding that he thought his initial application would protect him were he

dismissed and that he was not aware of the different bases for general protections

applications.

[15]      In his closing submissions, the Applicant referred to the decision in Cheyne Leanne

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Nulty v Blue Star Group (Nulty), contending that his late application was not a case of

ignorance. Finally, the Applicant noted that the Respondent had foreshadowed in its response

to his initial application that his employment was to be terminated on 28 July 2015,

contending that the Commission was therefore on notice that his employment was to be

terminated. In the absence of any enquiries from the Commission and given the Notice of

Listing issued on 6 August 2015, the Applicant therefore contended that he proceeded with

his initial application in good faith.

[16]      The Respondent submitted that at the telephone conference of 31 August 2015

Commissioner Lewin advised the Applicant that:

 his initial application was no longer valid and would need to be withdrawn;

 a new application would need to be made;

 he should seek legal advice; and

 he should advise his chambers prior to 4 September 2015 as to his proposed course

of action.

[17]      The Respondent also acknowledged in its submissions that the Applicant may have

been under the impression that his initial application was appropriate despite the fact that it

was made prior to his dismissal.

[18]      At the telephone hearing, the Respondent disputed that Commissioner Lewin had

stated at the telephone conference that an application made by the Applicant under s.365 of

the Act would be accepted by the Commission.

[19]      A Full Bench of the then Fair Work Australia determined in Nulty that:

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

circumstance ...”

[20]      While I note the Applicant’s contention that his case did not involve ignorance as per

Nulty, I do not accept that contention given his evidence that he was not aware of the different

bases for general protections applications and his acknowledgement that his initial application

was a general protections application not involving dismissal.

[21]      As to the Applicant’s implicit submission that the Commission should have contacted

him in circumstances where, as a result of the Respondent’s response to the initial application,

it was aware that the Respondent was going to terminate the Applicant on 28 July 2015, I note

that there is no record on the Commission’s electronic Case Management System of the

Applicant contacting the Commission after his dismissal to either confirm that he had been
[2016] FWC 2515

dismissed or, alternatively, to discuss the implications of his dismissal for his initial

application. In the circumstances relied upon by the Applicant, the onus on him to ensure that

his application is made in accordance with the Act is not diminished.

[22]      As noted above, the Applicant relied on the decision in Lane. In that case, Senior

Deputy President O’Callaghan granted an extension of time in circumstances where the

applicant had made an application within the statutory timeframe but used the incorrect

application form, with that error only detected when the matter was the subject of a

conference convened by the Senior Deputy President. However, in that case the applicant had

lodged an unlawful termination application under s.773 of the Act based on advice from a

community legal centre as opposed to a general protections application, with the Senior

Deputy President concluding that an application under s.773 was not available as the

respondent was a national system employer.

[23]      The circumstances in this case, while similar to those in Lane, differ primarily because

in this case the initial application was a general protections application not involving

dismissal as opposed to a general protections application involving dismissal. In Lane both

applications related to the applicant’s dismissal, with the initial application an unlawful

termination application made under s.773 of the Act and the second application a general

protections application involving dismissal made under s.365 of the Act. The differences

between an application made under s.773 and s.365 of the Act are not as great as the

differences between an application made under s.372 and one made under s.365 of the Act.

The differences between an application made under ss.365 and 372 of the Act were discussed

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by Deputy President Smith in Kerry Hobbs v ISGM (ISGM) in the following terms:

“[9] Firstly, the general protections provisions of the Act, which deal with

workplace rights, have different rights and obligations attached to them for the parties

involved and the Commission depending on whether the applicant has been dismissed.

For example, a s.372 conference may only take place if both parties to the dispute

agree to participate, whereas the Commission must deal with a dispute when a s.365

application is made, even if the respondent refuses to participate. In a s.365 application

the Commission has a statutory duty to find that all reasonable attempts to resolve the

dispute (other than by arbitration) have been, or are likely to be, unsuccessful.

[10] Secondly, and perhaps more importantly, a s.365 application must be lodged

within 21 days after the dismissal took effect.”

[24]      A further difference is that in Lane the applicant was acting on advice he received

from a community legal centre when he lodged the incorrect application. In this case,

however, the Applicant deposed that he had not sought legal advice regarding the preparation

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of his initial application . Further, as previously mentioned, there is no record of the

Applicant contacting the Commission after his dismissal to discuss the implications of his

dismissal for his initial application.

[25]      On balance, drawing on the decisions in Nulty, Lane and ISGM, I consider the reasons

for the delay relied upon by the Applicant do not point to the existence of exceptional

circumstances.
[2016] FWC 2515

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

[26]      The Applicant submitted that it was clear that from two days prior to his dismissal he

was disputing his treatment by the Respondent. At the telephone hearing, the Applicant

submitted that he took no action following his dismissal on 28 July 2015, adding that he was

not aware that he had to take any action to dispute his dismissal.

[27]      The Respondent submitted that the Applicant should have clarified whether a different

application was required.

[28]      Based on the Applicant’s submissions, it is clear that he took no action after 28 July

2015 to dispute his dismissal. Any action taken before then carries little weight as at that stage

the Applicant had not been dismissed. As previously noted, there is no record of the Applicant

contacting the Commission after his dismissal to discuss the implications of his dismissal for

his initial application.

[29]      The above analysis does not point to the existence of exceptional circumstances.

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

[30]      The Applicant contended that the Respondent would not be prejudiced were an

extension of time granted as the Respondent had been on notice that he intended to make a

general protections application from when he made his initial application and as a result of the

conference of 31 August 2015 where Commissioner Lewin advised the Applicant that he need

to discontinue his initial application.

[31] The Respondent submitted at the hearing that responding to the Applicant’s

applications had taken up considerable time.

[32]      While I note the Respondent’s contention, I would observe that responding to a

general protections application generally involves some time and effort on behalf of the

respondent. However this of itself does not necessarily constitute prejudice. I note also that

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the absence of prejudice is not a sufficient basis to grant an extension of time .

[33]      I therefore consider this factor to be a neutral consideration.

(d) The merits of the application

[34]      The Applicant submitted that his claim was meritorious, particularly as he had

suffered a workplace injury in or around March 2015 and that because of that injury and the

exercise of his workplace rights to take personal leave, make complaints/inquiries about his

employment and make a WorkCover claim, the Respondent took adverse action against him

which consisted of, but was not limited, to dismissing him on 28 July 2015. The Applicant

further submitted that the adverse action was taken for prohibited reasons.

[35] The Respondent submitted that the Applicant was dismissed based on work

performance and a significant breach of his legal responsibilities to act within his knowledge

and discipline as a mechanical engineer. The Respondent further contended that the Applicant
[2016] FWC 2515

was not dismissed as a result of exercising a workplace right when he lodged his initial

application or as a result of being temporarily absent from work as a result of his illness or

injury.

[36]      It is clear from the above outline of the parties’ submissions regarding this factor that

key aspects of the reasons for the Applicant’s dismissal are disputed. In those circumstances, I

am unable to form a considered view as to the merits of his application in the absence of a

substantive hearing of the evidence. As such, I consider this factor to be a neutral

consideration.

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

[37]      The Applicant submitted that it would be particularly unfair to him that, if upon

lodgement of his initial application, the Respondent could then terminate his employment

with the effect that he was prevented from substituting his initial application with a general

protections claim involving dismissal, particularly when he had maintained his intention to

make such a claim since prior to his termination.

[38]      The Respondent was unable to comment in respect of this factor.

[39]      There is no material before the Commission indicating that the Applicant had

indicated an intention to make a general protections claim involving dismissal prior to his

termination. Against that background, I consider this factor to be a neutral consideration.

Conclusion

[40]      The question of exceptional circumstances was dealt with by a Full Bench of the then

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Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group	(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.”

[41]      Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not

satisfied that there are exceptional circumstances warranting the granting of a further period

for the making of an application under s.366(2).
[2016] FWC 2515

[42]      Accordingly, the application will be dismissed. An order to that effect will be issued

with this decision.

Appearances:

R. Thevathasan for the Applicant.

M. Gabsch for the Respondent.

Hearing details:

2015.

Melbourne:

November 2 and 19.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579290>

1

Exhibit T1

2

Exhibit T2

3

C2015/4904

4

Attachment to Form F8A – General Protections Application Involving Dismissal

5

[2010] FWA 3939

6

(2011) 203 IR 1

7

[2014] FWC 4599

8

Exhibit T2 at paragraph 33

9

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

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[2011] FWAFB 975