Marcus Forwell v Northern Co-Operative Meat Company Ltd

[2024] FWC 3260

[2024] FWC 3260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Marcus Forwell
v

Northern Co-Operative Meat Company Ltd

(C2024/7663)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 25 NOVEMBER 2024

General protections application filed out of time – circumstances not exceptional – application dismissed.

Introduction

1. This decision concerns an application by Mr Marcus Forwell (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute pursuant to s 365 of the Fair Work Act 2009 (Act) against his former employer, Northern Co-operative Meat Company Ltd (Respondent).

1. The Applicant seeks an extension of time to lodge his general protections application in the Commission.

1. I conducted a hearing, by telephone, on 22 November 2024 in relation to the Applicant’s request for an extension of time.

1. The Applicant was dismissed on 2 October 2024 and lodged his general protections application in the Commission on 24 October 2024.

1. Section 366(1) of the Act states that an application under s 365 must be must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 23 October 2024. The application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 366(2).

1. The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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.[2]

1. The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

1. Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a)   the reason for the delay;

(b)   any action taken by the person to dispute the dismissal;

(c)   prejudice to the employer (including prejudice caused by the delay);

(d)   the merits of the application; and

(e)   fairness as between the person and other persons in a similar position.

1. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

Reasons for the delay

1. The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

1. 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 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.[5]

1. The Applicant provided a statement in the following terms to support his application for an extension of time:

“There are two reasons for my late submission of my unfair dismissal claim.

My termination was effective immediate with two weeks paid leave in lieu of notice. I incorrectly believed that the period in which I can bring an unfair dismissal claim began at the end of those two weeks.

The other reason was the delay in receipt of the PIP documents from Dylan Clifford. I needed the documents so I could speak to a lawyer about the possibility of beginning my unfair dismissal claim. I have still not received these documents. They also chose a support person for me who was the union representative, he has not supplied his copy of the PIP documents as well.

When I realised my mistake in the former, I submitted my claim as quickly as I was able.

Supplementally to the above I have also been dealing with mental health difficulties. The stress from losing my job and financial stability was compounded by my partner’s high-risk pregnancy with twins.

I have tried to follow the rules of the Commission as best as I can and acknowledge that I was out of time for my submission however following the above I believe it to be appreciate to allow my claim to proceed.”

1. Although I have sympathy for the Applicant, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the delay in filing his general protections application. As to the first reason relied on by the Applicant, the letter of termination provided to him on 2 October 2024 states that his employment “has been terminated as of Wednesday, 2^nd October 2024”. In light of the clear terms in which the final day of the Applicant’s employment was communicated to him by the Respondent, I am not satisfied that there were reasonable grounds for the Applicant’s belief that the 21 day time period did not begin to run until the end of the two week period in respect of which the Applicant was wages in lieu of notice. As to the Applicant’s second reason, I do not accept that the Applicant needed the “PIP documents” to bring a claim or speak to a lawyer about bringing a claim in relation to the termination of his employment. So much is clear from the fact that the Applicant was able to prepare and lodge his general protections application in the Commission without access to the “PIP documents”, which the Applicant is still seeking from the Respondent. Further, the Applicant contends that the Respondent contravened the general protections provisions of the Act because it dismissed him on the basis that he used too much accrued annual leave and sick leave. The Applicant relies on what he was allegedly told by the Respondent to support this contention. The Applicant did not need access to the “PIP documents” to prepare or communicate this contention, or obtain legal advice about his dismissal. The “PIP documents” will be relevant to an assessment of the Respondent’s defence that it dismissed the Applicant because he failed to meet the performance objectives set out in his performance improvement plan, but in light of what the Applicant says he was told about the reason for his dismissal, it was not necessary for the “PIP documents” to be obtained or examined before the Applicant’s general protections application was prepared and lodged in the Commission. Finally, as to the Applicant’s statement that he has “been dealing with mental health difficulties”, the Applicant has not provided any medical or other evidence to demonstrate the extent to which these difficulties have impacted his ability to prepare and lodge an application in the Commission within 21 days of his dismissal.

1. The absence of an acceptable or reasonable explanation for the delay in lodging the application on 24 October 2024 weighs against the Applicant’s contention that there are exceptional circumstances.

Action taken to dispute the dismissal

1. There is no evidence to suggest that the Applicant took any action to dispute his dismissal, other than by filing his general protections application in the Commission. This is a neutral consideration.

Prejudice to the employer

1. I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.

1. The Applicant contends he was told that one reason why he was being dismissed was because he used too much accrued annual leave and sick leave.

1. The Respondent denies the Applicant’s claim that his employment was terminated due to him using too much accrued annual and sick leave. At no stage during the termination meeting was the Applicant advised, so the Respondent contends, that he was being dismissed due to using too much accrued annual leave and sick leave. The Respondent also denies the claim that the Applicant’s leave accruals were ‘drained’. The Respondent contends that the Applicant’s employment was terminated because he failed to meet the performance objectives set out in his performance improvement plan, including progression in the coursework identified in the Applicant’s training plan.

1. The facts, circumstances and reasons for the Applicant’s dismissal would need to be carefully considered at a final hearing after the cross examination of relevant witnesses. I do not consider that it is possible at this early stage of the proceedings to come to an informed view of the merits of the Applicant’s general protections application. Having regard to all the circumstances, I consider the merits of the Applicant’s general protections application to be a neutral consideration.

Fairness as between the person and other persons in a similar position

1. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

1. Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.

Conclusion

1. Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case. The absence of a reasonable reason for the delay weighs against a finding of exceptional circumstances. The other factors are neutral or of little weight. In my assessment, the circumstances of this case are not out of the ordinary course, unusual, special or uncommon.

1. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2). Accordingly, the Applicant’s general protections application must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr M. Forwell appeared for himself.

Mr D. Clifford, Human Resources Manager, appeared for the Respondent.

Hearing details:

2024.
Newcastle (by telephone):
22 November.

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

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