Mr Bradley Leigh O'Connor v Whyalla Beef Pty Ltd

[2019] FWC 4293

[2019] FWC 4293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Bradley Leigh O’Connor
v
Whyalla Beef Pty Ltd
(C2019/1653)

DEPUTY PRESIDENT LAKE BRISBANE, 20 JUNE 2019

Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – extension of time – extension of time not granted – application dismissed.

[1] This Decision concerns an application by Mr Bradley O’Connor (the Applicant) under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a General protections dispute in relation to his dismissal by Whyalla Beef Pty Ltd (the Respondent). The Applicant’s employment was terminated on 18 February 2019 with immediate effect. The application was made on 14 March 2019.

[2] By virtue of s. 366(1) of the Act an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2). The application must have been made by 11 March 2019 but was not. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

[3] The Respondent did not consent to participate in a conciliation prior to the determination of whether the Applicant should be granted a further period in which to make his application. Directions were issued requiring the Applicant to file a statement setting out the basis for the submission that there were exceptional circumstances justifying the grant of a further period in which to make his application, by 4:00pm on Friday, 26 April 2019. The Respondent was directed to file and serve any material in relation to the matter by 4:00pm on Friday 3 May 2019. The Applicant and Respondent were directed to the Commission’s guidance material for “Applicant’s outline of argument: Extension of time” and “Respondent’s outline of argument: Extension of time”.

[4] The matter was listed for a jurisdictional hearing on Monday, 13 May 2019 by telephone. Mr John Salter (paid agent) sought and was granted permission to represent the Respondent. I was satisfied that, having regard to the complexity of the matter, allowing representation would enable the matter to be dealt with more efficiently pursuant to s596(2)(a) of the Act. Mr O’Connor appeared on his own behalf.

CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED

The approach to deciding whether a further period should be granted

[5] As previously noted, s.366(1) of the Act requires that a general protections application under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.

[6] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General protections application to be made as follows:

“(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 similar position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking the grant of a further period in which to make an application. 1 A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.2 The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

•  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

•  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 3

[8] It is also not correct to construe exceptional circumstances as being only an unexpected occurrence, although frequently it will be. 4 Further, it is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.

[9] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account each if the matters in s.366(2) of the Act. I will consider each of those matters in turn.

The reason for the delay – s. 365(2)(a)

[10] The Commission must consider the reason for the delay. An absence of an explanation for part of the delay may weigh against an extension being granted, while a credible explanation for the entirety of the delay may weigh in favour of an extension being granted. It is important to note that while reason for delay is a factor that must be considered it is not determinative and consideration must be given to all the relevant factors and assigning appropriate weight to each. 5

[11] The Applicant stated in his outline of argument that his application was not made within 21 days of his dismissal because:

“I was unaware that anything could be done, as far as I was aware I was in the probation period when I was dismissed so they were within their right to not continue my employment.”

[12] The Applicant stated that he was prompted to contact the Commission following a conversation with a friend, and promptly made his application, but by this time the 21 day timeframe had already elapsed.

[13] As to the Applicant’s explanation for the delay in submitting his application, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 6 Whilst acknowledging that the general protection jurisdiction is less known than the unfair dismissal jurisdiction, this again is not an exceptional circumstance that should allow the Applicant an extension of time.

[14] This factor weighs against granting an extension of time.

Any action taken by the Applicant to dispute the dismissal – s. 366(2)(b)

[15] There is no evidence that the Applicant took any steps prior to lodging this application to dispute his dismissal. This factor weighs against a finding that there are exceptional circumstances.

Prejudice to the Respondent including prejudice caused by the delay – s. 366(2)(c)

[16] Noting the short delay between the expiry of the 21 day timeframe and the filing of this application, I am satisfied that there would be no prejudice to the Respondent then there would have been had it been made within the 21 day time period. Accordingly, this factor weighs in favour of granting an extension of time.

The merits of the application – s. 366(2)(d)

[17] In Kornicki v Telstra-Network Technology Group 7 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.”

[18] The Applicant submitted that he was dismissed because he raised a complaint about bullying and harassment. The Respondent denies the Applicant’s contentions about the reasons for his dismissal. The disputed factual issues in this case would need to be fully explored and tested at a hearing on the substantive application.

[19] In these circumstances, I consider that the merits of the application neither weigh in favour of or against a finding for an extension of time.

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

[20] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. 8

[21] The parties did not draw to attention 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. This is a neutral factor in my determination.

CONCLUSION

[22] 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 in this matter.

[23] Pursuant to section 366(2) of the Act, the extension of time is denied and the section 365 application is dismissed. I Order accordingly.

DEPUTY PRESIDENT

Appearances:

For the Applicant: Mr Bradley Leigh O’Connor (self-represented)

For the Respondent: Mr John Salter (BT Lawyers)

Hearing details:

13 May 2019.

In Chambers by Telephone.

Printed by authority of the Commonwealth Government Printer

<PR709546>

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

 2   Halls v McCardle and Ors [2014] FCCA 316.

 3   Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [2010] FWA 1394.

 4   Nulty v Blue Star Group [2011] FWAFB 975 at [13].

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [39].

 6   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].

 7   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 8   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].