Justine Hall (Applicant)v Zenneth Group Pty Ltd (Respondent)

[2020] FWC 760

[2020] FWC 760

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Justine Hall

(Applicant)

v
Zenneth Group Pty Ltd

(Respondent)

(C2019/6915)

DEPUTY PRESIDENT MANSINI MELBOURNE, 12 FEBRUARY 2020

Application to deal with a general protections dispute involving dismissal – application filed out of time – extension of time granted.

[1] This decision concerns an application for extension of the time within which to lodge an application made under s.365 of the Fair Work Act 2009 (Act).

[2] I have determined that Ms Justine Hall (the Applicant) did not file within the statutory timeframe and should be allowed a further period within which to lodge her application. The reasons for that decision follow.

Chronology of relevant events

[3] On 14 October 2019, the Respondent terminated the Applicant’s employment.

[4] On 23 October 2019, the Applicant’s lawyer wrote to the Respondent advising that the termination was disputed.

[5] On 1 November 2019, the Applicant and the Respondent reached an in-principle agreement to settle the matters in dispute including the termination (Settlement Agreement). The Settlement Agreement was recorded in writing, by email exchanged between the legal representatives, that same day. A deed of settlement was to follow.

[6] On 8 November 2019, the Respondent’s lawyer provided a draft deed of settlement to the Applicant’s lawyer. Discussions continued about the draft until and including 11 November 2019.

[7] On 12 November 2019, the Respondent’s lawyer advised the Applicant’s lawyer that it was “terminating” the Settlement Agreement because the Respondent considered that the Applicant had engaged in multiple and on-going breaches of the Settlement Agreement and it was therefore entitled to terminate that agreement.

[8] Also on 12 November 2019, the Applicant (through her lawyer) applied for the Commission’s assistance with a general protections dispute involving dismissal pursuant to s.365 and subject of these proceedings.

[9] On 14 November 2019, the Commission’s General Protections Team corresponded with the Applicant and Respondent requesting consent to attempt conciliation of the substantive application prior to the determination of whether to extend the time for filing of the application. The Respondent did not consent.

[10] Accordingly, the matter was allocated to me for determination of whether to extend the time within which the application was to be lodged. On 22 November 2019, a program for hearing and the exchange of submissions and evidence was set. The matter was called on for a mention before me on 16 December 2020 to discuss the Respondent’s request for an adjournment and extension to file submissions. At the Mention the parties agreed to participate in a conference before a Member of the Commission prior to the hearing of the extension of time issue.

[11] On 20 January 2020, the parties participated in a conference before Deputy President Colman.

[12] On 11 February 2020, the Respondent advised the Commission that it now consents to the Applicant’s application to extend the time within which to file the s.365 application. The parties agreed that the extension of time application be determined on the papers and requested that the hearing listed for 12 February 2020 be vacated. I considered it appropriate to and did proceed in that manner.

[13] Notwithstanding the consent position of the parties, I am required to determine whether the application was filed outside the statutory timeframe and, if so, whether this is an appropriate case to exercise my discretion to extend the time for filing.

Was the application made out of time?

[14] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[15] There is no dispute that the Applicant’s employment was terminated on 14 October 2019 and that the termination was effective that same day.

[16] As the application was not then lodged until 12 November 2019, the period of 21 days ended at midnight on 4 November 2019 and the application was lodged 8 days out of time.

[17] The Applicant asks that the Commission allow a further period for the application to be made. The Respondent consents.

Are there exceptional circumstances?

[18] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are “exceptional circumstances”. The matters of which I must be satisfied are set out in s.366(2) of the Act.

[19] The exceptional circumstances test establishes a high hurdle for an applicant. 1 In this context, 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.2 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.3

[20] My consideration of the matters set out at s.366(2) follows.

Reason for the delay – s.366(2)(a)

[21] 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” or “reasonable” or “credible” explanation. 4 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour.5 Ultimately, it is a question of degree and insight.6

[22] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay. 7

[23] The Applicant contends that her delay in filing the application was due to her reliance on the Settlement Agreement that was reached with the Respondent on 1 November 2019. The Applicant has filed evidence in support of this contention, which is not opposed, including as follows:

a) At least since 23 October 2019, the Respondent was aware that the Applicant intended to dispute the termination. By 28 October 2019, the Respondent was advised that the Applicant was seeking a response in the ongoing settlement discussions having regard to the 21 day statutory timeframe.

b) On 1 November 2019, the Applicant instructed her lawyer:

• to accept the Respondent’s offer of settlement (which the Applicant was advised included, as a condition, her agreement not to file any claims with the Commission); and
• not to file a claim with the Commission.

c) In conveying those instructions, the Applicant’s lawyer asked the Respondent’s lawyer if she could prepare the draft deed that same day on the basis she was “conscious of timing”.

d) On 6 November 2019, the Applicant’s lawyer followed up with the Respondent’s legal representative about a draft deed to reflect the Settlement Agreement. A draft was provided on 8 November 2019. On 11 November 2019, the Applicant’s lawyer spoke with the Respondent’s lawyer about the contents of the draft deed.

e) It was not until 12 November 2019 that the Applicant became aware that the Respondent was terminating the Settlement Agreement. The Applicant immediately instructed her lawyer to file the s.365 application. The application was filed that same day.

[24] It is not disputed that the Applicant was aware of the 21 day statutory timeframe for filing an application of this kind. However, on the evidence before the Commission, it is apparent that the Applicant’s decision not to file this claim within the statutory timeframe was affected by the fact of the Settlement Agreement. The Applicant’s inaction was consistent with the terms of her commitment not to commence claims against the Respondent, a commitment which was confirmed in writing, on 1 November 2019, between the legal representatives.

[25] Whatever the reason for the Respondent’s decision to terminate the Settlement Agreement (about which I make no finding), upon learning that the Respondent did not intend to honour the Settlement Agreement, the Applicant acted promptly and immediately to cause this s.365 application to be filed on that same day.

[26] The particular circumstances of this case are unusual. I consider the Applicant has offered a reasonable and credible explanation for the delay which weighs in favour of a conclusion that there were exceptional circumstances.

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

[27] In respect of s.366(2)(b), I am required to take into account any action taken by the Applicant to dispute the dismissal.

[28] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 8 The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future.9

[29] The unopposed evidence before the Commission is that the Respondent was on notice of the Applicant’s intention to dispute the termination since 23 October 2019. That dispute was then subject of a series of exchanges between the legal representatives for the Applicant and the Respondent over the period 23 October to 12 November 2019.

[30] I consider the action taken to dispute the dismissal is a matter which weighs in favour of a finding of exceptional circumstances.

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

[31] By its consent of 11 February 2020, the Respondent is taken to have withdrawn its initial suggestion that it would suffer some prejudice if the Applicant were granted an extension of the time in which to bring this claim. In any event, there is no evidence before the Commission in this regard.

[32] I am not able to identify any prejudice of a kind that would weigh against a finding of exceptional circumstances.

Merits of the application – s.366(2)(d)

[33] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[34] The Applicant alleges that her employment was terminated in contravention of s.340 of the Act, because she had made “several inquiries” in relation to her employment.

[35] The Respondent maintains that the Applicant was terminated for serious misconduct and not for any other reason. More specifically, it says that the Applicant engaged in various breaches of the National Disability Insurance Scheme (NDIS) Code of Conduct during her employment, including photographing disabled clients without their permission and disseminating those photographs. In its original response to the application, the Respondent says that the Applicant’s alleged workplace right(s) were her requests to be appointed as a director of the company and to be allocated an equal shareholding, which it argues are not workplace right(s) at all.

[36] The Applicant rejects the Respondent’s purported reasons, pointing to the sequence of events which reveal that the alleged misconduct occurred in or about August 2019 and was not subject of disciplinary action until after the Applicant’s inquiries were made.

[37] I observe that there may be a legitimate question as to whether a binding settlement agreement was reached which prevents the Applicant from pursuing her claim.

[38] However, on the limited evidence before the Commission, it would appear that the Applicant is able to at least make out the basis of a s.365 claim in that there was an adverse action by way of dismissal, which she alleges was taken in response to and because of her exercise of a workplace right being an inquiry or complaint about her conditions of employment.

[39] In the circumstances, I consider the merits weigh only very slightly in favour of a finding of exceptional circumstances.

Fairness as between the person and other persons in a similar position – s.366(2)(e)

[40] Applications to extend time generally turn on their own facts. I am not aware of 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.

[41] I consider this to be a neutral consideration in the present matter.

Conclusion

[42] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[43] Having regard to all of the matters that I am required to take into account under s.366(2), I am satisfied that the requisite exceptional circumstances exist. The existence of a reasonable and credible explanation for the delay in filing the application weighs in favour of a finding of exceptional circumstances. The action taken to directly dispute the dismissal with the Respondent also weighs in favour of such finding. The merits are untested but for present purposes weigh only slightly in favour of the Applicant. The other factors are considered neutral.

[44] In my view, the circumstances of this case are exceptional.

[45] For the above reasons, I have determined to grant an extension of time under s.366(2). Accordingly, the Applicant’s application under s.365 of the Act will be referred to the General Protections Team who will correspond with the parties regarding progress of the matter.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

 2   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975(Nulty) at [12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine[2016] FWCFB 6963 (Perry) at [21].

 3   Ibid.

 4   Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd[2018] FWC 7355 at [7].

 5 Stogiannidis at [39].

 6   Green v Bilco Group Pty Ltd[2018] FWC 6818 at [8].

 7   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 at [23].

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

 9   Wilson v Woolworths [2010] FWA 2480 at [19]-[21].