Mr Julian Nicolas Jr v Nortask Pty Ltd

[2014] FWC 5324

[2014] FWC 5324

The attached document replaces the document previously issued with the above code on 11 August 2014.

The document has been edited to correct a typographical error in Endnote 8.

Carolyn Jurott

Associate to Deputy President Asbury

Dated 12 August 2014

[2014] FWC 5324

FAIR WORK COMMISSION

DECISION

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

Mr Julian Nicolas Jr
v
Nortask Pty Ltd
(C2013/5637)

DEPUTY PRESIDENT ASBURY BRISBANE, 11 AUGUST 2014

Application to deal with contraventions involving dismissal - Applicant made unfair dismissal application within required time - Applicant discontinued unfair dismissal application after conciliation and filed general protections application - General protections application made outside time required - Applicant contends that general protections application was intended to amend unfair dismissal application and amendment should be allowed under s.586 - Discretion to amend unfair dismissal application so it is taken to be general protections application considered - Not an appropriate case for exercise of discretion - Unfair dismissal application discontinued and no amendment can be made - Failure of Fair Work Ombudsman to advise of option to make general protections application not an error constituting exceptional circumstances - Exceptional circumstances not established - Extension of time to make general protections application refused.

BACKGROUND

[1] Julian Nicolas Junior was employed by Nortask Pty Ltd from 8 October 2008 until 19 June 2013. The circumstances in which Mr Nicolas’ employment ceased are in dispute with Mr Nicolas asserting that he was dismissed and Nortask maintaining that he resigned. Mr Nicolas made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) on 25 June 2013. 1

[2] That application was discontinued following a conciliation conference, conducted on 31 July 2013, and Mr Nicolas subsequently made an application under s.365 of the Act for the Commission to deal with a general protections dispute involving his dismissal. The general protections application was made on 16 August 2013 - some 58 days after the dismissal and 37 days outside the 21 day time period allowed under s.366(1) of the Act.

[3] Nortask applied under s.589(2) of the Act to have the general protections application dismissed on the grounds that it was filed outside the time limit in s.366(1) of the Act.

[4] The matter was initially dealt with by another member of the Commission who refused an application by Mr Nicolas to amend his discontinued unfair dismissal application, and declined to exercise discretion to extend time in which to make a general protections application. Following a successful appeal by Mr Nicolas, a Full Bench of the Commission remitted the matter to me.

[5] It is necessary to note that Mr Nicolas appointed Ms Kay Byrnes as his representative in both the unfair dismissal application and the general protections application by virtue of including her details on the Form F2 with respect to his unfair dismissal application and the Form F8 in relation to his general protections application. Ms Byrnes states that she is Mr Nicolas’ friend and Exempt Person for the purposes of his subclass 457 visa.

[6] A Form F53, Notice of representative commencing to Act was filed by Mr Kerr of Berrigan Doube Lawyers on behalf of Mr Nicolas, on 11 September 2013. Mr Kerr represented Mr Nicolas in the initial proceedings in relation to the attempt to amend the unfair dismissal application and to seek an extension of time with respect to the general protections application. Mr Kerr also represented Mr Nicolas in the appeal in relation to these matters.

[7] After the matter was remitted to me and listed for Mention/Directions, a Form F54 Notice of Representative Ceasing to Act was received from Mr Kerr. Ms Byrnes then resumed the role of representing Mr Nicolas. Several attempts were made to conduct a conference for the purpose of issuing directions in relation to the progression of the matter. Mr Nicolas travelled to the Philippines and then became ill and was unable to participate in a conference. When a conference was held Ms Byrne on behalf of Mr Nicolas indicated that he wished to file further submissions and evidence. Given the withdrawal of Mr Nicolas’ legal representative, I determined that I would allow Mr Nicolas to file further material in support of his case.

[8] Directions were issued requiring the parties to file any further submissions and witness statements. I also indicated that I would be taking into account the material filed in earlier proceedings. An extension was granted to Mr Nicolas at his request, with a corresponding extension being granted to Nortask. Material was filed by both parties in accordance with those Directions.

[9] Mr Nicolas’ material comprised an outline of submissions and a document headed “Statement of Facts”. Nortask filed submissions and a witness statement of Mr Steven Speziali and also indicated that in addition to the material filed by Mr Nicolas in the present proceedings, it relied on his unfair dismissal application filed on 25 June 2013 and his general protections application filed on 31 August 2013, and the material set out in those applications.

[10] After the parties had filed their material, it was necessary to relist the matter for the purpose of dealing with a further application from Mr Nicolas seeking to tender additional material. Nortask objected to the tender of that additional material and also sought an order that Mr Nicolas and Ms Byrnes cease communicating with my Associate by telephone and email without informing the Company’s legal representatives of that communication or providing a copy. In this regard it was submitted that the original decision refusing to extend time for Mr Nicolas to make his application was overturned on appeal on the basis of ex parte communication with the Commission, and that notwithstanding this, that conduct was continuing.

[11] I conducted a further conference and informed Ms Byrnes of the inappropriateness of this conduct and that she should desist. Mr Nicolas was unable to attend that conference, and I further indicated to Ms Byrnes that she should inform Mr Nicolas that he should also refrain from communicating with my Associate without informing Nortask’s legal representatives and copying them into correspondence.

[12] The additional material sought to be filed by Mr Nicolas was described in an email from Ms Byrnes as recorded interviews with Mr Nicolas’ treating doctor and another person said to deal with the contention by Mr Speziali that Mr Nicolas resigned his employment. Ms Byrnes also sought to call further evidence about effort expended by Ms Byrnes and Mr Nicolas after being “advised” by the conciliator that there was “another cause” they should investigate. Further Ms Byrnes sought to tender three documents said to have been obtained from the Toowoomba office of the FWO, after the conciliation conference. Nortask objected to this material on the grounds of fairness and relevance to the issues in dispute. The issues related to this material are dealt with later in this Decision.

[13] In these proceedings, Mr Nicolas advanced a number of propositions, some of them not raised in the previous proceedings. Those propositions - which I assume are submitted in the alternative - are as follows:

● The general protections application filed on 16 August 2013 sought to amend the unfair dismissal application filed within the required time on 25 June 2013, in accordance with s.586 of the Act and the amendment should be allowed; or
● The general protections application was filed within time on the basis that Mr Nicolas was dismissed during the course of the conciliation conference in relation to his earlier unfair dismissal application rather than on 19 June 2013 as stated in the general protections application; or
● There are exceptional circumstances based on error on the part of the office of the Fair Work Ombudsman (FWO) in relation to advice provided to Mr Nicolas, such that the Commission should exercise discretion under s.366(2) of the Act to extend the time to make the general protections application.

EVIDENCE AND SUBMISSIONS

[14] It is not in dispute that Mr Nicolas was employed by Nortask as a carpenter from 8 October 2008 and that Nortask sponsored Mr Nicolas under a subclass 457 working visa. It is also not in dispute that on 11 June 2013 Mr Nicolas suffered a workplace injury to his hand, when he severed the top of his right index finger. Mr Nicolas received medical treatment for his injury, and made a claim for Workers’ Compensation. Mr Nicolas’ evidence is that while on sick leave he attended a meeting at his workplace on 19 June 2013 with Mr Hermes Speziali and Mr Steven Speziali. At some point during that meeting, Mr Nicolas was alone with Mr Steven Speziali who told him (among other things) that he needed to return to work the following day “no matter what” and that if Mr Nicolas did not return to work Nortask would have no option but to terminate his employment.

[15] Mr Nicolas states that he was mortified and left the office immediately. Mr Nicolas then telephoned the WorkCover representative handling his claim and told her that he had been terminated because he was being forced to work, despite having a medical certificate stating that he was not capable of working. According to Mr Nicolas he was told by the WorkCover representative that he should not worry because everything had been recorded.

[16] On or about 25 June 2013, Mr Nicolas attended a meeting with a representative of the FWO. According to the submission on behalf of Mr Nicolas, he was given a copy of a Form F2 Application for an unfair dismissal remedy and completed that application. The unfair dismissal application, as filed in the Commission, is hand written and bears a stamp indicating that it was received by the FWO at the Gold Coast on 25 June 2013. The application was filed with the Commission on that date. Ms Brynes is nominated in the application as Nicolas’ representative. In relation to the dates of employment and dismissal, the following information appears:

Date employed: 8 - 10 - 2008

Date notified of dismissal: 19 - 06 - 2013

Date dismissal took effect: 19 - 06 - 2013.

[17] In relation to reasons for dismissal given by the employer, the following is stated:

“Illegal demand that I work doing painting maintenance and cleaning while under Workers’ Compensation Certificate stating I am not capable of working”.

[18] In response to a question as to why the dismissal was unfair, the following has been inserted:

“I was incapacitated state and completely without the ability to fulfil any one of these above stated tasks”.

[19] On 3 July 2013 Nortask filed a Form F3 Employer’s Response to Application for an unfair dismissal remedy, asserting that Mr Nicolas was not dismissed, but rather resigned his employment on 13 June 2013.

[20] A conciliation conference was conducted on 31 July 2013. The matter was not resolved. Mr Nicolas asserts in his submissions that during the course of the conciliation conference, he was informed by the Conciliator that there was another cause of action available to him and that the Conciliator recommended that he seek legal advice. Mr Nicolas further asserts that he subsequently sought advice from a number of legal practitioners and each of them advised that he should have made a general protections application and not an unfair dismissal application.

[21] The file in relation to Mr Nicolas’ unfair dismissal application contains no reference to this matter and indicates that the conciliator recorded that a hearing would be required to be held in Toowoomba; the applicant would have two witnesses and the respondent four; and that the employer had raised a jurisdictional objection on the grounds that Mr Nicolas was not dismissed.

[22] Further, the file contains an email sent by the conciliator to Mr Nicolas and Nortask on 6 August 2013, informing them that following an unsuccessful conciliation conference, Mr Nicolas’ application had been referred for formal proceedings before a member of the Commission and providing details of sources of information about the requirements for a hearing.

[23] At some point after the conciliation conference in relation to his unfair dismissal application, Mr Nicolas instructed Ms Byrnes to make a complaint to the FWO in relation to the advice and the filing of an “incorrect form”. The Commission’s file indicates that an incomplete Form F8 Application for the Commission to deal with a general protections dispute was sent by facsimile to the Commission from the FWO on 16 August 2013 at 5.09 pm. The Form F8 filed on 16 August 2013 states in relation to question 3.1, that Mr Nicolas was employed on 8 October 2010 and was dismissed on 19 June 2013. As previously noted Ms Byrnes’ contact details are included on that form as Mr Nicolas’ representative.

[24] The Commission corresponded with Ms Byrnes on 19 August 2013 to indicate that the application had been received but that it was incomplete because Question 2 on the Form F8 (list of sections allegedly contravened) had not been answered and the application had not been signed. I also note that there are no attachments to the original Form F8 and that Question 3.3 - reasons for termination, if any, given by the employer - has been left blank.

[25] A completed version of the Form F8 was lodged by Ms Byrnes on 18 August 2013. That version was sent from Ms Byrnes’ email account, and states that the date of Mr Nicolas’ dismissal was 19 June 2013. There is an additional response to question 3.3 stating that Mr Steven Speziali has claimed that Mr Nicolas resigned and that he would never have done this. There is also an attached statement of facts in identical terms to that tendered in the present proceedings including the assertion that Mr Nicolas was dismissed on 19 June 2013.

[26] On 19 August 2013, at 4.25 pm, Ms Byrnes forwarded an email to the Commission in relation to the subject of “Form F8/ Form F50/ Statment of Events of Julian Nicolas Jr”. The email states that the documents attached are “relevant to the case of Julian Nicolas Jr against Nortask Pty Ltd to be married up with the former submission made to the Fair Work Ombudsman Office Surfers Paradise on Friday, August 16”. The documents attached to the email are a Form F50 Notice of Discontinuance in relation to the unfair dismissal application and the same statement of facts attached to the second version of the general protections application on the Commission’s file and also tendered in the current proceedings. A box on the notice of discontinuance has been checked to indicate that Mr Nicolas wholly discontinues the unfair dismissal application.

[27] On 29 August 2013, Mr Favaro of Clifford Gouldson Lawyers filed a Form F53 Notice of representative commencing to act for Nortask. On 3 September 2013 Mr Favarro corresponded with the Commission indicating that Nortask sought to have Mr Nicolas’ general protections application dismissed pursuant to s.589(2) of the Act on the grounds that it was made outside the time required in s.366(2). On 11 September 2013, a Form F53, Notice of representative commencing to Act was filed by Mr Kerr of Berrigan Doube Lawyers on behalf of Mr Nicolas. Mr Kerr represented Mr Nicolas in the original proceedings in relation to the attempt to amend the unfair dismissal application and to seek an extension of time in relation to the general protections application.

[28] There is an email from Mr Kerr on the file in relation to Mr Nicolas’ general protections application seeking confirmation as to whether his unfair dismissal application had been discontinued. That email is dated 18 September 2013. A response to that email from the Associate of the member who initially dealt with the extension of time issue is also contained on the file confirming that a Notice of Discontinuance in relation to the unfair dismissal notice had been filed by Ms Byrne on 19 August 2013.

[29] Mr Nicolas and Ms Byrnes, who gave evidence on his behalf, asserted in the original proceedings in relation to extension of time, that the date of the dismissal was 16 June 2013. This assertion was also made in submissions made on behalf of Mr Nicolas in the appeal in relation to that matter.

[30] In the submission in the present proceedings, it is now asserted that Mr Nicolas did not know that he was dismissed on 19 June 2013 but only had a belief that this was the case. It is further asserted that Mr Nicolas was never formally dismissed by Nortask until the conciliation conference held in relation to his unfair dismissal application on 31 July 2013, during which Mr Hermes Speziali stated that there was no longer a place for Mr Nicolas at Nortask. On this basis it is contended that the general protections application was made within the time required in s.366(1) of the Act.

[31] In the alternative, Mr Nicolas asserts that the reason for the delay in filing his general protections application is that he was not properly advised of his options with respect to his dismissal, by the FWO during the meeting on 25 June 2013. It is contended that despite having provided a representative of the FWO with the relevant facts of his case, Mr Nicolas was not informed that a remedy was available to him under the general protections provisions. Mr Nicolas submits that:

“The [FWO] Representative simply provided the Applicant with a single form for Unfair Dismissal Remedy Application, leading him to think it was the sole means of benefit for his need. The Representative then proceeded to file the Application on the Applicant’s behalf.

The Applicant was not made aware that the Application Form provided was, in light of the facts of his matter, insufficient in its scope, nor that there was a further alternative remedy of a more suitable nature.”

[32] Mr Nicolas also tendered three documents said to have been obtained from the Offices of the FWO in Toowoomba after the conciliation conference, including one document headed “General Workplace Protections” which states that the lodgement time for a general protections application is 60 days of the dismissal taking effect. The document referred to in this regard indicates that it was last updated in November 2009 and contains the following disclaimer.

“This information has been provided by the Fair Work Ombudsman as part of its function to provide education, assistance and advice (but not legal or professional advice). The Fair Work Ombudsman does not provide this information for any other purpose. You are not entitled to rely upon this information as a basis for action that may expose you to legal liability, injury, loss or damage. Rather, it is recommended that you obtain your own independent legal advice or other professional service or expert assistance relevant to your particular circumstances.”

[33] In his submission in the present proceedings, Mr Nicolas asserts that this document gave him the false impression that he had more time than was actually the case, to file the general protections application. Mr Nicolas further asserts he resides in Dalby and Ms Byrnes resides on the Gold Coast, in proximity to Brisbane where most “no win/no fee” lawyers have their practices and that this impacted on his ability to lodge his application within the required time, and his limited finances.

CONSIDERATION

The application to amend the unfair dismissal application

[34] Mr Nicolas submits that s.586 of the Act provides a mechanism by which the Commission should allow the unfair dismissal application made on 25 June 2013 to be amended so that it is accepted as an application under s.365 of the Act for the Commission to deal with a general protections dispute. It is also asserted that the general protections application sought to amend the unfair dismissal application. Section 586 provides that:

586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

[35] As Deputy President Gooley pointed out in Talbot v O’Connor Haulage 2 s.586 of the Act provides the Commission with a wide discretion to permit a party to amend an application, and this discretion must be exercised having regards to the objects of the Act generally and the relevant Part of the Act in particular. However in that casethe applicant had made a valid application under s.365 of the Act and sought to amend the application to insert another ground. The decision in CEPU v Active Tree Services3 is another example of permission being granted for the dispute encapsulated in a valid application to the Commission under s.365 of the Act, to be expanded to include additional grounds, when a general protections court application in respect of that dispute was made following conciliation in the Commission.

[36] There is authority for the proposition that s.586 empowers the Commission to amend an application made under one section of the Act so that it is accepted as having been made under another section. In Etemi v Canterbury Child Centre 4Deputy President Hamilton allowed an amendment to an application made under s.773 of the Act so that it was accepted as having been made under s.365. His Honour noted that a similar amendment had been allowed by Justice Collier in Maher v Mulgowie Fresh Pty Ltd5and that the following considerations had been identified:

● The application to amend was made early in the litigation;
● No case management issues arose;
● No prejudice had been demonstrated to the respondent in relation to:

○ costs thrown away;
○ new factual or legal issues arising; and
○ the respondent had been notice of the applicant’s intentions to amend;

● Prejudice to the applicant if the amendment is not allowed by virtue of any new application being out of time.

A refusal to amend in the circumstances of that case would be inconsistent with the objects of the Act in relation to fairness in the workplace and the prevention of discrimination.  6

[37] Maher and Etemi involve applications that were made under s.773 of the Act in circumstances where the applications should have been made under s.365. The relationship between s.773 and s.365 is significantly different from that between s.365 and s.394. Section 773 and s.365 essentially deal with dismissals on grounds that can broadly be described as unlawful. Section 773 provides an alternative cause of action for persons who could otherwise bring a claim under s.365, but for the fact that their employer is not a national system employer. Section 773 is necessarily narrower in operation because it is underpinned by a different head of power under the Constitution. Further, there is a specific provision in s.723 to the effect that an application cannot be brought under s.773 if the person is entitled to make a general protections court application in relation to the conduct.

[38] In contrast, the legislative scheme for a general protections application is quite distinct from that pertaining to an unfair dismissal application. The former is a regime to provide protection with respect to workplace rights; freedom of association and discrimination. The latter is to provide a framework for dealing with unfair dismissal.

[39] It is also the case that Etemi and Maher involved circumstances where if the amendment was not allowed, the applicants would have had no viable alternative to pursue their claims, on the basis that the applications were invalid as they were made under s.773 in circumstances where s.723 barred those applications because they could have been made under s.365.

[40] In Densley v Maru Koala and Fauna Park 7 Commissioner Roe allowed an amendment to a general protections application made under s.365 of the Act so that it was taken to be an application for an unfair dismissal remedy under s.394. In that case, the parties agreed that the applicant was seeking a remedy for an unfair dismissal and the Commissioner was also satisfied that if it was necessary to extend the time for an unfair dismissal application to be made, that there were exceptional circumstances to justify the exercise of discretion under s.394(3) of the Act.

[41] While I accept that there is a precedent for allowing an amendment to a general protections application so that it is accepted as an unfair dismissal application, I am of the view that this is a more substantive amendment than allowing an application incorrectly made under s.773 to be amended so that it is taken to have been made under s.365. In Densley, the amendment was allowed at the conference in relation to the unfair dismissal application, and in circumstances where the Respondent appears to have agreed that s.394 was a more appropriate vehicle for the application. It is also clear that the respondent in that case did not object to an extension of time being given to the applicant to make an unfair dismissal application; the amendment was in a short time frame; and there was no prejudice to the respondent.

[42] In the present case, Mr Nicolas was a person protected from unfair dismissal. This is not a case where Mr Nicolas made an invalid application or where his claim was not viable because he was not a person protected from unfair dismissal. There is no apparent reason why his application for an unfair dismissal remedy could not have proceeded, after conciliation failed. It is one thing to allow an amendment to an application in circumstances where the application is not viable and was obviously made under the wrong section of the Act. It is another thing entirely to allow an applicant who has made a viable application and participated in a conciliation conference, to then amend that application because the application is not resolved at the conciliation conference.

[43] Assuming that such an amendment is within the discretionary power in s.586, I am not satisfied that this is an appropriate case for the exercise of that discretion, for the following reasons. The application to amend is not made early in the proceedings. It is made after the respondent has gone to the cost and effort of responding to the unfair dismissal application and participating in a conciliation conference. In this regard, there are costs thrown away as Nortask engaged legal representation in relation to the matter. Mr Nicolas was also legally represented at the initial hearing in relation to extension of time and in the appeal. It is also the case that although the factual matters pleaded in the general protections claim are the same as those pleaded in the unfair dismissal application, different legal issues arise.

[44] There is no indication that Mr Nicolas or his representatives, put Nortask on notice of the intended application for amendment of the unfair dismissal application, until 19 September 2013, when submissions were filed on behalf of Mr Nicolas in response to objection made by Nortask to his general protections application on the basis that it was out of time.

[45] While I accept that there will be prejudice to Mr Nicolas if he is not allowed to amend his unfair dismissal application so that it is taken to be an application under s.365, the matters set out above weigh against the exercise of the discretion in s.586 such that I am of the view that it should not be exercised.

[46] The fact that the conciliator who conducted a conference into Mr Nicolas’ unfair dismissal application may have observed that Mr Nicolas could have made an application under s.365 of the Act, as an alternative to his unfair dismissal application, is not of itself, a basis for allowing an amendment to the unfair dismissal application. There is no evidence that Mr Nicolas was informed by the conciliator that he could not pursue his unfair dismissal application. To the contrary, the conciliator communicated with Mr Nicolas after the conference and informed him that the matter would be referred to a member of the Commission for arbitration and of the steps he would need to take in order to progress the matter.

[47] In my view, an amendment should not be allowed in circumstances where an applicant files a valid application, attends a conciliation conference in relation to that application, does not achieve a settlement and then decides to withdraw an otherwise viable application simply to pursue an alternative remedy. That is in effect what occurred in the present case. That the applicant was not aware of the alternative remedy when the first application was made is of limited relevance. The exception may be a case where the applicant can demonstrate representative error such that the applicant was advised not to pursue a viable option and instead to pursue a non-viable option. For the reasons set out below, this is not a case involving representative error. Ignorance of an option is not, of itself, an exceptional circumstance.

[48] There is also a further and more fundamental impediment to the amendment sought by Mr Nicolas. Mr Nicolas has withdrawn the unfair dismissal application he now seeks to amend and has filed a Notice of Discontinuance in respect of that application. In order to entertain an amendment of the unfair dismissal application, the Commission would be required to set aside the Notice of Discontinuance.

[49] In Narayan v MW Engineers Pty Ltd 8a Full Bench held that the Commission does not have power under s.586 to grant an application to set aside a Notice of Discontinuance. The Commission may have power to deal with such an application if the Notice of Discontinuance was filed by mistake or under duress. In such cases the general law may operate to render the notice a nullity.9

[50] The unfair dismissal application was withdrawn after the general protections application was filed. The covering email does not make clear that the general protections application filed on 16 August 2013 intended to amend the unfair dismissal application and given that the unfair dismissal application was being withdrawn, no amendment was possible. Mr Nicolas’ legal representative in the original extension of time proceedings knew before the initial hearing in relation to extension of time, that the unfair dismissal application had been withdrawn and did not argue that the Notice of Discontinuance was a nullity or should be set aside.

The date of Mr Nicolas’ dismissal

[51] Mr Nicolas’ assertion in these proceedings that he was dismissed at the conciliation conference on 31 July 2013, is contrary to every statement and assertion he has made in the course of his unfair dismissal and general protections applications. I understand that Ms Byrnes wishes to leave no stone unturned in her pursuit to establish that Mr Nichols made his application within the required time or should be granted an extension. However, the assertion in this regard is against the weight of the evidence, and I do not accept Mr Nicolas’ new contention that he was not aware of the date upon which he was dismissed.

[52] I do not accept that Mr Nicolas should be permitted at this stage of the conduct of his case, to depart from a position that he has previously adopted, and has continued to maintain throughout the course of proceedings relating to his claims.

Extension of time

Legislation

[53] Given that I do not accept Mr Nicolas’ submissions in relation to amendment of his unfair dismissal application or that he was dismissed at a later date than previously asserted, it is necessary to consider whether an extension of time should be allowed with respect to Mr Nicolas’ general protections application.

[54] By virtue of s.366(1) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). That sub-section provides as follows:

(3) 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

[55] 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. 10

[56] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 11 Each of the matters in s.366(1) is considered below.

The reason for the delay

[57] The reason given by Mr Nicolas for the delay in making his general protections application, is that he was provided with incorrect advice by a representative of the FWO. It is asserted that this incorrect advice resulted in Mr Nicolas making an unfair dismissal application when he should have made a general protections application. In Nulty v Blue Star Group 12 a Full Bench of the Commission stated that generally speaking, acting on incorrect advice from a relevant government agency will constitute exceptional circumstances for the purposes of s.366(2).13

[58] In that case, the applicant did not have a viable unfair dismissal claim on the basis that she had not served the minimum period of employment. The Full Bench held that there was an insufficient evidentiary foundation for a finding that the Office of the Fair Work Ombudsman gave incorrect advice in relation to the facts as the appellant conveyed them. The Full Bench also held that it was not clear that the FWO was in a position to recognise that the appellant had a potential claim under s.365.

[59] In the present case, Mr Nicolas’ complaint is that upon hearing the facts of his case, a representative of the FWO should have advised him to make a general protections application or informed him that such an application was an alternative to an unfair dismissal application.

I do not accept that there was error on the part of the FWO so that this is a case where there are exceptional circumstances. There is no evidence of any incorrect information being provided to Mr Nicolas by the FWO. There is no evidence about the facts that were conveyed by Mr Nicolas to the FWO. If the facts were those set out in the Statement of Facts in these proceedings, then either an unfair dismissal application or an application for the Commission to deal with a general protections dispute could have been made. In those circumstances, that the FWO representative who spoke to Mr Nicolas only gave him the Form F2 Application for an unfair dismissal remedy, is not an error.

[60] On the basis of the facts before me, at the point Mr Nicolas made his unfair dismissal application, he had two options, each with pros and cons. Regardless of whether or not Mr Nicolas made an unfair dismissal or a general protections application, Nortask would have been entitled to object to the application on the basis of the assertion that Mr Nicolas had resigned his employment and had not been dismissed. In either case, the matter would have been conciliated and could have remained unresolved on the basis that Nortask maintained its objection. In either case, when the matter remained unresolved, Mr Nicolas could have continued his application either in the Commission (in the case of an unfair dismissal application) or the Federal Circuit Court (in the case of a general protections application).

[61] An application for an unfair dismissal remedy may have been a preferable course for an unrepresented applicant such as Mr Nicolas, with limited financial resources, who wished to dispute the cessation of his employment. I am not prepared to make a finding that the FWO provided incorrect advice in such circumstances.

[62] The FWO was not Mr Nicolas’ representative and did not hold itself out as such. It is an agency that provided him with advice. I would accept that there may be exceptional circumstances (all other things being equal) that would justify an extension of time, if there was clear evidence that on the facts as conveyed to the FWO by Mr Nicolas, advice was provided by the FWO that was wrong. I would also accept that the provision of demonstrably incorrect advice by the FWO that prevented Mr Nicolas from exercising his only viable option to pursue a claim with respect to the cessation of his employment may constitute exceptional circumstances. However this is not what occurred in the present case. Ignorance of an option, in the absence of an additional consideration such as representative error or the provision of demonstrably incorrect advice by an agency such as FWO, is not an exceptional circumstance.

[63] Taken at its highest, Mr Nicolas’ assertions could only establish an omission on the part of the FWO. An agency or organisation that provides advice to parties, who for reasons such as financial incapacity, would not otherwise be able to obtain advice, is not in the same position as a representative engaged on a fee for service or similar basis. In circumstances where the evidence about what facts Mr Nicolas conveyed to the representative of the FWO and what advice was given is unclear, I am unable to be satisfied that any such omission constitutes an error so that there are exceptional circumstances justifying the exercise of the discretion to extend time under s.366(2) of the Act.

[64] There is no evidence about what, if any, involvement the FWO had in the preparation of Mr Nicolas’ application for an unfair dismissal remedy. It is probable that Mr Nicolas or Ms Byrnes prepared the unfair dismissal application assisted by Ms Byrnes and that the FWO simply stamped the application as having been received and forwarded it to the Commission.

[65] In relation to the documents tendered by Mr Nicolas which he claims to have been obtained from the Toowoomba Office of the FWO, there is insufficient evidence upon which I could be satisfied that Mr Nicolas obtained those documents before he made his general protections application, or that he relied on them to his detriment, particularly the out of date document referring to the previous 60 day time frame for lodging an application.

[66] The document referring to the 60 day time period is marked as having been issued in 2011 and contains a caveat in relation to use of the document. Of particular significance is the fact that the documents have not previously been referred to by Mr Nicolas or his legal representative in any of the significant number of statements he has provided in connection with the pursuit of his claims.

Action taken to dispute the dismissal

[67] There are cases where an employee does not make an application - either for an unfair dismissal remedy or for the Commission to deal with a general protections dispute - within the time required in the Act, but takes other steps to indicate to the employer that the dismissal is contested and that an application will be made if a resolution by other means is not achieved. In such cases an employer is on notice and cannot complain that the dismissed employee has come from left field to make a late claim, after taking no action in relation to the dismissal.

[68] In the present case, Mr Nicolas took action by making an application for an unfair dismissal remedy and then by making a subsequent application for the Commission to deal with a general protections dispute. Nortask responded to the unfair dismissal application but was not on notice that Mr Nicolas intended to make a further application in relation to the same circumstances, until he lodged that application with the Commission. In those circumstances the fact that Mr Nicolas contested his dismissal by making two applications in relation to the same factual circumstances, is not a factor that weighs in Mr Nicolas’ favour.

Prejudice to Nortask

[69] Nortask submits, and I accept, that it will suffer prejudice if an extension of time is granted to Mr Nicolas to file his application for the Commission to deal with a general protections dispute. Nortask has expended time, effort and cost responding to an unfair dismissal application and will have to expend further time, effort and cost to respond to the general protections claim if the time in which to make it is extended. This is above and beyond the prejudice that attaches to simply being required to defend an application.

Merits of the application

[70] Mr Nicolas’ general protections application is not without merit. There is no doubt that he injured himself at work and that he was certified by a medical practitioner as being unable to perform his usual duties at the point he was dismissed. However his unfair dismissal application based on identical assertions was not resolved at conciliation. If a general protections claim suffered the same fate at conciliation, Mr Nicolas would be met with the same jurisdictional objection - he was not dismissed - if he made a general protections court application.

[71] On the material filed by Nortask, the jurisdictional objection is arguable, and the merits of Mr Nicolas’ application do not outweigh other considerations under s.366(2). Further, the interview transcripts Mr Nicolas seeks to tender appear to only go to the issue of whether he was dismissed. It is also the case that what he reported to his doctor is hearsay in any event.

Fairness as between Mr Nicolas and other persons in a like position

[72] As Deputy President Gostencnik observed in Beggs v Login Systems, 14this consideration is designed, at least in part, to ensure that applicants for an extension of time faced with similar circumstances are treated consistently by the Commission. In the circumstances of this case, where there is no basis for finding that there are exceptional circumstances, to extend time for Mr Nicolas would be inconsistent with the treatment of other applicants in substantially similar circumstances.

CONCLUSIONS

[73] I do not accept that the application for a general protections remedy made by Mr Nicolas on 16 August 2013 was an application to amend the earlier unfair dismissal application made on 25 June 2013. I am also of the view that even if the general protections application was intended as amendment to the unfair dismissal application, it could not have operated in this way in circumstances where the unfair dismissal application was discontinued after the general protections application was filed. Further, if there was discretion to allow an amendment in the present case, I would not exercise it in favour of Mr Nicolas.

[74] It would not be appropriate to exercise the discretion to allow an amendment to the unfair dismissal application simply because Mr Nicolas did not achieve a settlement in a conciliation conference in relation to that application and decided that he wanted to make a general protections application in respect of the same factual circumstances. To allow an amendment in such circumstances would be to allow Mr Nicolas to have two bites of the cherry.

[75] I do not accept the alternative submission that Mr Nicolas was dismissedon 31 July 2013. He has at all times asserted that his dismissal occurred on 19 June 2013 and I do not accept his attempts to change position in relation to this matter.

[76] Mr Nicolas’ application for the Commission to deal with a general protections dispute is made 37 days outside the time allowed in s.366(1) of the Act. I am not satisfied that there are exceptional circumstances such that the discretion to extend the time to make that application should be exercised. There was no error on the part of the FWO. There are no reasons advanced by Mr Nicolas that constitute exceptional circumstances. Mr Nicolas has disputed his dismissal, but for the reasons set out above, this does not weigh in his favour. Nortask has expended considerable cost, time and effort in defending two applications made by Mr Nicolas in respect of the same factual circumstances, and will be prejudiced if time is extended. Such prejudice will not simply be that generally associated with defending an application. The merits of the application are not so obviously apparent that the other considerations in s.366 are outweighed.

[77] I have considered all of the issues and arguments raised by Mr Nicolas. Given the difficulties which obviously faced Mr Nicolas upon the withdrawal of his legal representative, I have allowed him to raise additional grounds to those encompassed in the matter as it was remitted to me. After considering all of the issues and arguments, I do not accept that this is an appropriate case in which the discretion to allow additional time to make a general protections application should be exercised.

[78] Mr Nicolas’ application for the Commission to deal with a general protections dispute (C2013/5637) is dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Ms K. Byrnes on behalf of the Applicant.

Mr B. Favarro on behalf of the Respondent.

Hearing details:

2014.

Brisbane:

May 2.

 1   U2013/3624.

 2   [2012] FWA 3969.

 3 [2011] FMCA 535.

 4   [2011] FWA 5936.

 5 (2010) 197 IR 64.

 6   Ibid at 69.

 7   [2013] FWC 1201.

 8   [2013] FWCFB 2530.

 9 Ibid at [14].

 10   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/as Joy Mining Machinery [2010] FWA 1394

 11 Ibid at [15].

 12   [2011] FWAFB 975.

 13 Ibid at [26].

 14   [2013] FWC 5357

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