Mr Eliot Simon Keating v Technology Core Pty Ltd
[2025] FWC 480
•25 FEBRUARY 2025
| [2025] FWC 480 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Eliot Simon Keating
v
Technology Core Pty Ltd
(C2024/9429)
| COMMISSIONER WILSON | MELBOURNE, 25 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal – whether extension of time should be granted – exceptional circumstances found – jurisdictional objection dismissed.
This matter concerns an application made by Mr Eliot Simon Keating for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). For reasons which will be explained it is necessary to consider whether an extension of time may be granted to Mr Keating for the making of this application.
The application made by Mr Keating the subject of this decision (C2024/9429) was received by the Commission on 23 December 2024. Mr Keating also lodged an earlier application on the same subject (C2024/8335) on 20 November 2024, that was discontinued by Mr Keating on 29 November 2024. The circumstances of the discontinuance of that matter are relevant to determination of this one.
A determinative conference regarding Mr Keating’s application for an extension of time for his application was held on 17 February 2025. Mr Keating appeared in the determinative conference and made submissions and gave evidence on his own behalf. The Respondent, Technology Core, was represented by Ms Christine Harding, responsible for Communications and Finance and Mr Ross Shaw, the Respondent’s Director.
Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. In this decision, I have considered whether an extension of time is required and should be granted to Mr Keating for the making of his application and, for the reasons set out below, I am satisfied that both that an extension of time is required and that a further period should be allowed for the making of the application now before me.
BACKGROUND
Mr Keating was first employed by the Respondent, Technology Core Pty Ltd (Technology Core) in 2011. Technology Core submits that Mr Keating ‘was dismissed on 1 November 2024’, with his final payroll paid to him on 18 November 2024, ‘ceasing his employment with us from that date’.[1] In Mr Keating’s Form F8 Application, he states that his employment with the Respondent ended on 6 December 2024.[2]
Mr Keating lodged his first general protections application, C2024/8335, on 20 November 2024, which was served on the Respondent on 25 November 2024. On 29 November 2024, during a phone call with the Commission’s Dispute Resolution Team (DR Team), Mr Keating discontinued C2024/8335. The Commission’s DR Team advised Mr Keating to discontinue C2024/8335 as they were of the view that he had lodged his application too early, considering his dismissal to not yet have taken effect.[3]
The Commission’s DR Team seem to have come to this view due to a misinterpretation of the Applicant’s situation, specifically the Termination Letter provided to the Applicant by Mr Shaw, Director of the Respondent, on 1 November 2024.[4] The Termination Letter states, so far as is relevant:
“Based on your length of service and DOB, your notice period is 5 weeks. Therefore, your employment will end on 6th December 2024.
You will not be required to work during this termination period.
You will be paid your accrued entitlements, including superannuation, up to and including your last day of employment”[5]
On the basis of the DR Team’s advice, Mr Keating discontinued C2024/8335, stating that it was the ‘sole reason for the case being cancelled’.[6] Mr Keating then lodged application C2024/9429 on 23 December 2024, noting in the F8 Application Form that his employment had ended on 6 December 2024, making his application within 21 days of that date.[7]
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:
“366 Time for application
(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).
(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.”
CONSIDERATION
Extension of time – the criteria within s.366(2)
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application:
“[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”.[8]
In considering whether an extension of time should be granted to Mr Keating, I am required to consider all of the criteria in s.366(2), which I now do.
The reason for the delay
It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[9] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[10] An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay. It could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[11] While the “reason for the delay” is a factor that must be taken into account, this does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[12]
Mr Keating’s application asserts that his dismissal took effect on 6 December 2024, whereas the respondent asserts the dismissal took effect on 1 November 2024.
If Mr Keating’s dismissal took effect on 6 December 2024, then his second general protections application was made within time since he would have had until Friday, 27 December 2024 to lodge his application for it to be within time (noting that the application was actually made on Monday 23 December 2024). If however the dismissal took effect on 1 November 2024, the application now before me will be out of time and consideration of an extension of time for the making of the application will be required.
These matters arise since Mr Keating was told of his dismissal on 1 November 2024, was sent away from the workplace and told conflicting things in the termination letter. Despite being informed his employment would end on 6 December, he was not required to work during the subsequent 5 week notice period and he was to be paid up to and including his last day of employment. Being told one’s employment ends on one day does not reconcile with being told one is not required to work until some other date or that there would be payment “up to and including his last day of employment”. The termination letter is plainly poorly written without an eye to the obvious inconsistency, and it is understandable as to how the dispute now before me has arisen.
Mr Keating’s final payment was made to him on 18 November 2024, with the payslip recording payments of 190 base hours (presumably ordinary hours); 25.8 holiday hours; 410.4 hours of long service leave; and an amount for personal leave.[13] The payments were made on 18 November 2024, as that was the pay cycle immediately after the termination letter was issued to Mr Keating.
Deputy President Roberts recently addressed a similar question of the date of effect of a termination in the matter of Marnie Diosere Gonzales v CHM Wellness Practices Pty Ltd.[14] I concur with the Deputy President’s relevant reasoning. In that matter the applicant submitted she was dismissed on 7 August 2024 and the respondent viewed the dismissal date as 31 July 2024. The Deputy President records the dispute as arising when the applicant was told in a meeting on 31 July 2024 that she was to be dismissed. The termination letter given to her said “it has been decided that your employment will end on 7 August 2024. Please consider today (31 July) the start of your notice period”. The applicant then asked whether she could be paid for her notice period rather than keep working until 7 August. The respondent agreed telling the applicant “her request had been approved and that she would be ‘paid in lieu.’”. She was then paid her final payments on 6 August 2024 and did not work for the respondent again after 31 July 2024.[15]
In his decision, the Deputy President endeavoured to resolve the question of when the applicant’s dismissal took effect;
“[10] The first question that falls for determination in this case is when did the Applicant’s dismissal take effect? The answer to that question depends on how the facts in the case align with the different senses in which the concept of payment in lieu of notice has been considered in the authorities.
[11] In Siagian v. Sanel Pty Ltd[16] the Court referred to the discussion of the expression ‘payment in lieu of notice’ in the earlier decision in Leech v Preston Borough Council[17]. The relevant extract from the former case is as follows:
“Counsel’s second argument is that, because of the payment in lieu of notice, the termination did not occur on 29 March but at the date of expiration of the period for which payment was made, 15 April. If this argument is correct, s.170EE orders are available.
This argument also raises a complex problem. The problem arises because of the ambiguity inherent in the words “payment in lieu of notice”. The ambiguity was pointed out by Waite J, in Leech v Preston Borough Council [1985] ICR 192 at 196:
‘... it is clear from the authorities cited to us, ... all of which are confirmed by the experience of our lay members, that the expression ‘payment in lieu of notice’ is regularly used throughout industry in one or other of two quite different senses. The first, which is the grammatically correct one, is when it is used to describe the payment to an employee whom it is proposed to dismiss summarily of a lump sum representing compensation for the wages or salary which he would have received if he had been given the notice to which he is entitled by law. The second, which is the colloquial and grammatically inaccurate one, is when the term is used as a convenient shorthand way of telling an employee that he is being given the full period of notice to which he is entitled by law but is at the same time excused any duty (and refused any right) that he would otherwise have under his employment contract to attend at the workplace during the notice period.’
Although Waite J did not spell out the result that flowed from each meaning, it is clear from other decisions that, in the first case, the employee’s employment terminates upon the date of payment of the lump sum. In the second case, the employment extends until the expiration of the period for which the payment was made.”
[12] The original intention of the Respondent in the present matter was to put the Applicant on 7-days’ notice that her employment was being terminated, that the termination would take effect on 7 August 2024 and that the Applicant was to continue working for the Respondent until that date. This much is clear from the express terms of the letter of termination that was provided to the Applicant at the meeting on the morning of 31 July. These arrangements changed on 31 July 2024 as a result of discussions between the Applicant and Respondent.”[18]
The decision then considered in some detail the principles requiring application;
“[15] That the parties intended to bring the relationship to an end on 31 July is also consistent with what his Honour Wilcox CJ described in Siagian as the ‘common sense’ approach.
An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment-related costs. Such as workers’ compensation insurance, payroll tax, liability for leave payments etc.,[19]
[16] Although Wilcox CJ in Siagian described the termination as taking effect on the day the payment of the lump sum is made where there is a payment in lieu of notice in the first sense, I do not think that the fact that the payment itself here was not made until 6 August alters the date the dismissal took effect to that date. In Siagian the Court was dealing with a factual scenario where a termination note and a cheque, including an amount for a notice period, was handed to an employee at the same time. In other matters the Commission has considered the situation where a termination has taken place in circumstances where notice or payment in lieu of notice has not been provided. In Metropolitan Fire and Emergency Services Board v Duggan[20] the Full Bench said:
In summary, it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.[21]
[17] In Course v. DoubleIQ Pty Ltd[22] the Full Bench was dealing with a contention that the Commission at first instance had failed to take into account the fact that payment of amounts due on termination, including payment in lieu of notice, had not been made and that this should have resulted in a conclusion that the termination did not take effect until at least the end of the notice period. In refusing permission to appeal the Bench said:
There is simply no support in principle or authority for Mr Course’s contention that termination of employment can only be effective if and when an employee’s entitlements on termination are paid to them in full.”[23][24]
While accepting that the circumstances in this case have differences to some of the factual matters in the above-mentioned cases, the core question is that posed in Duggan: whether the employment relationship has been terminated is a question of fact, with the attendant question of when that may be. Applying this reasoning to the matter now before me, I find that Mr Keating’s termination of employment took effect on 1 November 2024. He understood his employment to end on that date; the letter of termination stated the same, albeit that further sentences imported ambiguity about the subject; and he was paid termination payments on 18 November 2024, being the pay date following 1 November.
Having found the date on which termination took effect, it is then necessary to consider an extension of time for the making of Mr Keating’s general protections application. An application made on 23 December 2024 referable to a dismissal on 1 November 2024 is plainly out of time.
The “delay” to be considered in this case is the period it took after the prescribed period for Mr Keating to lodge his application. As Mr Keating’s employment ended on 1 November 2024, an in-time application would need to have been made before midnight on Friday, 22 November 2024. As a result, the delay to be considered is the 31 day period after 22 November 2024 until the actual lodgement of the application now before me, matter number C2024/9429, which was on 23 December 2024.
Mr Keating’s explanation for the late lodgement is that it was due to the advice he had received from the Commission’s DR Team, to discontinue his earlier (in-time) application, C2024/8335 on 29 November 2024, and relodge it after 6 December, the day the Commission’s DR Team had advised Mr Keating that his employment would cease.
This explanation is acceptable to me and is consistent with the material on the Commission's file for matter number C2024/8335. That application was filed within time. While the staff member’s advice to Mr Keating that his application was premature was well-meaning, it was wrong. The available material, which included a copy of the termination letter suggested prematurity, however it was not definitive and so should have been escalated for determination by a Member of the Commission.
Unfortunately, Mr Keating acted on the Commission’s advice and discontinued his first application and then waited until 6 December 2024, the date he was informed was the date his dismissal took effect. He was also told that “If you wish to relodge the matter, please ensure it is lodged within 21 days of your dismissal taking effect so it is not lodged out of time”. He acted on that advice as well, believing his rights were to file the application at any time during the 21 day period.
The consequence is that, when Mr Keating filed his second application, he believed the application to be within time because of the Commission’s advice. While these circumstances are obviously regrettable, they are also most certainly circumstances out of the ordinary course, unusual or special.
As a result, I find that Mr Keating has put forward an acceptable explanation for the delay in making his application. As such, my consideration of this criterion resolves in his favour in deciding whether an extension of time for filing should be granted.
Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[25]
The lodging, by Mr Keating of an earlier application with the Commission, C2024/8335, shows Mr Keating had taken other steps to dispute his dismissal. This consideration therefore favours the grant of an extension of time to the Applicant.
Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of this application is 31 days. The Respondent, although believing the case to have been finalised when C2024/8335 was discontinued by the Applicant, does not claim that the delay in lodging the application caused it prejudice.[26] Consideration of this criterion is a neutral factor in my overall decision about exceptional circumstances.
The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.
In relation to the Commission’s consideration of the merits of an application, when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such a case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[27]
In general protections matters, s.361(1) presumes that adverse action was taken for an alleged prohibited reason unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities, in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases, an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question.[28]
Prior to his dismissal, Mr Keating raised a number of issues with the Respondent relating to underpayment of wages, the classification of his role under the Award and the removal of a number of his duties.[29] He considers his dismissal to be as a result of him raising these issues with the Respondent. The Respondent denies these claims, arguing that Mr Keating was dismissed for his failure to comply with the Respondent’s start/finish times, and for failing to follow instructions and procedures.[30]
Given the wide divergence of the parties’ respective cases, consideration of this criterion is a neutral factor in my overall consideration of whether there are exceptional circumstances that would warrant the extension of time.
Fairness as between the person and other persons in a like position
In considering whether I should grant an extension of time, I need to have regard to whether any matters of fairness arise either to Mr Keating or to other general protections applicants whose applications are either currently before the Commission or have been decided in the past.[31]
I consider that it would be unfair for other Applicants in Mr Keating’s position to be denied an extension of time for the making of their applications if relying on incorrect advice provided to them by an employee of the Commission.
As such, consideration of this criterion is in favour of a finding of exceptional circumstances.
CONCLUSION
Consideration of the statutory criteria in relation to exceptional circumstances shows that a number of the criteria resolve in favour of Mr Keating, with the other criteria being neutral considerations. Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are exceptional circumstances that allow a further period for a general protections application to be made by Mr Keating.
For these reasons, I grant an extension of time pursuant to s.366 of the Act and will issue an Order extending the time for the making of Mr Keating’s application at the same time as this decision.[32] Further, the matter will be programmed for a conciliation conference to be conducted by me.
COMMISSIONER
Appearances:
Mr E. Keating, for the Applicant
Ms C. Harding, for the Respondent
Hearing details:
17 February.
2025.
[1] Respondent’s Submissions; Digital Hearing Book (DHB), p.52.
[2] Applicant’s Form F8; DHB, p.10.
[3] Email from FWC to Applicant; DHB, p.38.
[4] Termination Letter; DHB, p.31.
[5] Ibid.
[6] Applicant’s Jurisdictional Objection Submissions; DHB, p.36.
[7] Applicant’s Form F8; DHB, p.10.
[8] Nulty v Blue Star Group, [2011] FWAFB 975 (2011), 203 IR 1, [13].
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[10] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[11] Ibid, [40].
[12] Ibid, [41].
[13] Payslip, DHB, p.56.
[14] [2024] FWC 3022.
[15] Ibid, [7] – [9].
[16] (1994) 122 ALR 333, (1994) 54 IR 185.
[17] [1985] ICR 192.
[18] [2024] FWC 3022.
[19] [1985] ICR 192, p.206.
[20] [2017] FWCFB 4878.
[21] Ibid, [32].
[22] [2020] FWCFB 5440.
[23] Ibid, [15].
[24] [2024] FWC 3022.
[25] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[26] Respondent’s Submissions on Extension of Time; DHB, p.52.
[27] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[28] Keep v Performance Automobiles Pty Ltd [2014] FWCFB 8941 [50], (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445.
[29] Applicant’s Form F8; DHB, p.27-28.
[30] Respondent’s Form F8A; DHB, p.48.
[31] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[32] PR784372.
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