Graeme Francis Weselman v Luerssen Australia Pty Ltd

[2023] FWC 572

[2023] FWC 572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Graeme Francis Weselman
v

Luerssen Australia Pty Ltd

(C2023/142)

DEPUTY PRESIDENT BEAUMONT PERTH, 14 MARCH 2023

Application to deal with contraventions involving dismissal

1. Issue and outcome

1. On 11 January 2023, Mr Graeme Francis Weselman (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, Luerssen Australia Pty Ltd, objected to the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act.

1. In his application, the Applicant says his dismissal took effect on 22 December 2023 (which appears to be a typographical error as to the year).  The Respondent says the Applicant’s dismissal took effect on 20 December 2022.

1. Having noted that the Act requires the application to have been made within 21 days of the dismissal taking effect, s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 366(2)(a)–(e) are considered.

1. Before the hearing, directions were issued to the parties providing detailed information of what was required of both. The parties filed bare responses, with little to no evidence addressing the factors in s 366(2)(a)-(e). In light of there being a factual dispute about the date of dismissal, I decided it was appropriate to conduct a hearing. In the absence of witness statements and a paucity of evidential material before me, I allowed both parties to provide viva voce evidence.

1. Briefly stated, I have found that the Applicant’s employment ended on 20 December 2022.  The Applicant had emailed Chambers on 2 March 2023, noting he misquoted the dates of dismissal – albeit he did not clarify what the date of dismissal was.  However, at hearing, the Applicant conceded, appropriately in my view, that the date of dismissal was 20 December 2022, as indicated in the correspondence he had received concerning his dismissal. 

1. It follows that the Applicant’s application was made one day outside of the statutory period. Having considered the factors in s 366(2) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 366(1)(b). Accordingly, the application is dismissed and an Order issues concurrently.[3]

1. Background

1. It appears from the documentation provided that the Applicant commenced employment with the Respondent on 17 October 2022.[4] 

1. According to the Respondent, the Applicant’s employment was terminated on 20 December 2022, within the probationary period.[5]

1. The letter of termination of 20 December 2022, set out:

On Tuesday 20 December 2022 you met with Glen Tucker - Senior Human Resources Business Partner and Rob Allen – Quality Manager WA. In that meeting, you were advised it has been determined your employment as Supplier Quality Officer with Luerssen Australia will cease during your probation period. The reasons for this were discussed with you at this meeting. Your employment will therefore cease today effective immediately.

Luerssen Australia has decided to provide you with two weeks’ pay instead of the minimum contractual and legal entitlements you are entitled to during the probation period. Luerssen Australia will also provide you with access to the BSS Employee Assistance Program for a period of an additional 2 months after your termination date to support you during this time.

You will be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment. If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.

1. The Applicant asserts that he had been bullied in the workplace and had taken stress leave.[6]

1. On 11 January 2023, the Applicant made an application to deal with an unlawful termination dispute.

1. By correspondence dated 11 January 2023, the Commission informed the Applicant that it had received his unlawful termination application. 

1. By further correspondence dated 11 January 2023, the Commission informed the Applicant that it had received his unlawful termination application and that he may need to submit a different application.  It stated:

You may not be eligible to make this application.

This is because Luerssen Australia may be a national system employer and this would mean you could make a general protections application.

If you can make a general protections application, then you can’t make an unlawful termination application.

There are strict time limits.  You need to decide which application you want to make as soon as you can…

1. The Applicant states that having been advised by staff of the Commission that he had submitted the wrong form, he discontinued application C2023/121, the unlawful termination application. 

1. The Applicant submitted that the basis of the extension of time application was that his unlawful termination application was made in time but was just on the wrong form. 

1. Consideration

3.1      Date when the Applicant’s employment came to an end

1. It is well-established that a termination of employment takes effect when it has been communicated to the employee.  The Respondent argues that this date was 20 December 2022.  For his part, the Applicant says that it was 22 December 2022 but at hearing, as noted, he conceded that it was 20 December 2022.   

1. In Ayub v NSW Trains (Ayub), the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[7]  The Full Bench explained at paragraph [42] of Ayub:

[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…

1. It is evident that the Applicant was notified of his dismissal at the meeting with Mr Tucker and Mr Allen on 20 December 2022.  After that meeting, the Applicant received a letter of termination on 20 December 2022.  It follows that the Applicant had a reasonable opportunity to find out he had been dismissed on 20 December 2022. 

3.2      Extension of time

1. Consideration now turns to whether to extend the 21-day period within which the Application was to be brought. 

1. In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

1. It has been said that proceedings not commenced in time should not be entertained.[8] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[9] 

1. In decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[10]  The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

1. The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions.  In Nulty, the Full Bench said that 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.[11]  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.[12]

1. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[13]

1. At the commencement of the hearing, the parties were referred to s 366(2) of the Act and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

3.3      Reason for the delay

1. In Pottenger v Department of Caffeine,[14] the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[15] or a reasonable explanation.[16] 

1. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[17]  Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[18] 

1. The Applicant attributes the delay in making the application upon having filed the incorrect application (the application to deal with an unlawful termination dispute).  However, that application was made with this Commission on 11 January 2023, the same day as the Applicant made this application.  Therefore, the reason for the delay presents as implausible in all the circumstances.  The making of the incorrect application did not delay the making of the current application, given both were filed on the same day. 

1. Having considered the evidence before me, I am not persuaded that there is a credible explanation for the entirety of the delay or for that matter part of the delay. 

1. On balance, and in the circumstances of this particular case, I find the reason for the delay is not an acceptable one.  This weighs toward a finding of there not being exceptional circumstances. 

3.4      Action taken to dispute the dismissal

1. There is no evidence before me to suggest that the Applicant took action to dispute the dismissal.  In the circumstances, I consider this factor weighs against a finding of exceptional circumstances. 

3.5      Prejudice to the employer

1. I cannot identify any particular prejudice that the Respondent would face if an extension of time is granted. 

1. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time.  In the present case, I consider this to be a neutral factor.

3.6      Merits of the application

1. In Telstra-Network Technology Group v Kornicki,[19] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:

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.[20]

1. Evidence on the merits is rarely called at an extension of time hearing.  As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[21]  The merits of the application more generally would need to be scrutinised.  This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.  I therefore consider the factor neutral. 

3.7      Fairness as between the applicant and other persons in a similar position

1. The parties did not draw 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.  I consider this to be a neutral consideration in the present matter.

1. Conclusion

1. The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.  Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.

1. Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. No factors weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. I do not consider it fair and equitable to extend the time in which the Applicant could make his application.

DEPUTY PRESIDENT

Appearances:

Mr G Weselman, Applicant.
Ms J Bruce, for the Respondent.

Hearing details:

2023.
Perth (by telephone):
13 March.

[1] Fair Work Act 2009 (Cth) s 366(1)(a).

[2] Ibid s 366(1)(b).

[3] PR760250.

[4] Form F8 – General protections application involving dismissal, [1.1] (Form F8). 

[5] Form F8A – Response to general protections application, [2.2].

[6] Form F8 (n 4) [3.3]. 

[7] (2016) 262 IR 60, 79 [48].

[8] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].

[9] Ibid [21].

[10] (2011) 203 IR 1, 6 [15].

[11] Ibid 5 [13].

[12] Ibid 5–6 [13].

[13] (2018) 273 IR 156, 165 [38] (emphasis in original).

[14] [2018] FWC 3403.

[15] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].

[16] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[17] Ibid [39].

[18] Ibid.

[19] (1997) 140 IR 1.

[20] Ibid 11.

[21] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37] – [38].

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