Mr Kyle Sean Dowd v Advizer Pty Ltd T/A Life Insurance Comparison
[2023] FWC 599
•15 MARCH 2023
| [2023] FWC 599 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Kyle Sean Dowd
v
Advizer Pty Ltd T/A Life Insurance Comparison
(C2022/6782)
| DEPUTY PRESIDENT CROSS | SYDNEY, 15 MARCH 2023 |
Application to deal with contraventions involving dismissal – whether dismissal - application filed out of time – circumstances not exceptional - application dismissed.
This decision concerns an application by Mr Kyle Sean Dowd (the Applicant) for a general protections remedy pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), arising out of the Applicant’s allegations that he had been dismissed from his employment with Advizer Pty Ltd T/A Life Insurance Comparison (the Respondent) in contravention of Part 3-1 of the Act.
The Applicant claimed that he was notified of his dismissal on 4 August 2022, and that the dismissal took effect on that date. It is a matter of record that the Application was made on 6 October 2022.
In response to the Application, the Respondent raised the jurisdictional objections that the Applicant was not dismissed, and that the Application was filed out of time. Pursuant to s.366(1) of the Act, General Protections applications involving dismissal must be made within twenty-one (21) days after the dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow.
As the dismissal took effect on 4 August 2022, the Application has been lodged outside of the time prescribed, and 42 days after the last day on which such an application could have been made, being 25 August 2022.
On 21 November 2022, directions were issued to program the manner in which the
Application was to proceed (the Directions). The Directions required the filing of materials for the determination of whether the Applicant was dismissed, and whether he would be allowed an additional period within which to lodge the Application.
Pursuant to, but not in compliance with, the Directions, the parties filed materials. In particular:
(a) On 18 November 2022, the Applicant filed a Submissions regarding Out of Time together with supporting attachments;
(b) On 20 February 2023, the Applicant filed an Outline of Submissions and supporting attachments including two statements of Mr Evan Altaee and Ms Janet Guevara;
(c)On 6 March 2023, the Respondent provided a Submission in Reply with attachments; and
(d)On 14 March 2023, the Applicant filed a Final Submission and Annexures.
On 15 March 2023, the matter was the subject of a hearing (the Hearing) at which each party supplemented their written submissions with further oral submissions. At the Hearing the Applicant was represented by his Father Mr Keiron Dowd, and the Respondent was represented, with permission, by Clyde & Co Lawyers.
Background Facts
The Applicant commenced working with the Respondent on 26 October 2021. The Applicant worked as an Agent, Life Insurance Specialist, receiving commissions on sales made.
The Applicant raised issues regarding the allocation of work and asserted that three other Agents were provided leads that would allow them to receive significantly higher sales and commissions than the Applicant and other agents. The Applicant stated that after raising the issue he commenced to be bullied and be subjected to coaching sessions.
The Applicant stated his manager then started embarrassing him in front of the sales floor on mostly a daily basis and would embarrass him at their daily team meetings. As an example, on 6 July 2022, after the Applicant returned to work from having the flu, the Manager made the comment as he was walking into a full room that “Do you still work here” to which everybody started laughing.
On 7 July 2022, after a coaching session with his Manager, the Applicant resigned his employment. The Applicant was immediately convinced to stay in his role by the Head of Sales, and his sales team was changed with him reporting to a new Manager. The Applicant retracted his resignation.
After moving teams, the Applicant asked the Head of Sales to instruct his previous Manager to not converse with him. In an incident where the Applicant was on the phone with a customer, his previous Manager came up behind him with a deodorant can and sprayed him on the back of his head for a few seconds. The Applicant suffers from allergies and is anaphylactic, and so was concerned about a possible reaction to the spray. The Applicant then didn’t attend work many days in a row as he felt uncomfortable to be around the work environment.
The Applicant requested to work from home as he didn’t want to be targeted at work anymore. He advanced that request with the Respondent and was advised that he would have to apply to work from home. While the Respondent assured the Applicant that any bulling would stop, the Applicant was advised that his new Manager was making disparaging comments about him. He resigned the following day on Thursday 4 August 2022. The contents of the email in which that resignation was tendered were as follows:
Further to our earlier conversation on the phone, I would like to officially offer my notice of resignation as today the 04/08/22 being my last day in the role.
When I started in this role, I was promised that I would have great prospects in regards to earning decent commissions and have a career path that was down to me to navigate and progress into more senior roles. Also, I was leaving a stable job that was on a work from home setup on the basis I was allowed to do so, like other agents who have moved from Greenstone Financial Services, and have never come to the office. Unfortunately, none of these points were true and instead, there was a culture of favouritism and bullying, which made me anxious to attend work and adequately do my job.
I was promised things would change on numerous occasions, but again, unfortunately they did not. Since raising the favourtism issue with free sales been given to other team members, I have been belittled and made fun of by other members of the team. Unfortunately, the company didn’t do much to address the issue as I requested to move teams / work from home to Greg multiple times since raising my concerns, instead, I was the only one in my team moved away from my team to the same computer seat my sister was moved to before her resignation.
It’s for these reasons I am resigning from the role.
On or before Monday 8 August 2022, the Applicant sought a meeting between himself and his father, and the Respondent. The contents of the email request included the following:
“After considering my position, discussions with my dad and the events I’ve been put through, I’ve decided to open a case with Fairwork Australia to seek compensation for loss of income and trauma I have suffered due to the actions of the company and/or by individuals who represent the company.
…
Before I engage a lawyer, I am giving the company the opportunity to discuss and settle this matter on my Dad’s advice, as once we enter the legal process, we will continue until we have a favourable outcome in court.”
[Emphasis Added]
Due to the availability of Ms Moura of the Respondent the meeting was scheduled for 16 August 2022. On 16 August 2022, representatives of the Respondent met with the Applicant (and his father, Mr Keiron Dowd) to discuss the Applicant’s grievances. The Applicant claimed to have email evidence to support his allegations of bullying but would not provide copies of the emails, nor provide any details as to the nature of the emails or the person(s) with whom they were exchanged. Thereafter, the company attempted to locate the alleged emails (including by restoring and searching email inboxes of employees who had left the company) and otherwise undertook further investigations into the entirety of the Applicant’s allegations but could not find any such emails.
On 19 August 2022, following on from the 16 October 2022 meeting, the Respondent sent the following email to the Applicant:
HI Kyle
I can confirm that:
· The CEO has been advised of the outcome of Tuesday's meetings, including what you are seeking.
· In order for the CEO to make an informed decision, he wishes to see the correspondence your father stated you had with an unknown person in the company. As you can appreciate not knowing who you were corresponding with, or the contents of said correspondence means it takes to get to.
· We have now established that the likely person you were corresponding with was Greg & IT has now provided Dale with the contents of yours & Greg's google account. Dale is now sifting through that. We expect him to have gone through both your google accounts and a summary provided to the CEO early next week. At this time he will seek any relevant advice including legal advice should he require it.
I will provide an update mid next week. Have a great weekend.
Thanks
Upon receiving the above email, the Applicant responded querying whether the emails sought related to bullying or a claim of misleading conduct. In response, the Respondent sent the following email, also on 19 August 2022:
Hi Kyle
Sure. During Tuesday's meeting your dad advised that you have made numerous bullying complaints and that he helped you with those. Dale & I advised we have no knowledge of those. When I asked your father who the correspondence was with and if you could provide us with it, he said no that we have them in our system. Dale now has access to yours and Greg's google account and is looking to identify communication where you raise the matters with Greg. Once we have all those, we can then provide all information to the CEO and likely the company lawyer for them to make a decision in relation to the compensation you are seeking.
Thanks
[Emphasis added]
On 25 August 2022, in response to a query from the Applicant on the previous day, the Respondent advised the Applicant:
Hi Kyle
We have referred the matter to our lawyers & waiting to hear back from them.
Thanks
[Emphasis added]
On 26 August 2022, the Respondent responded to the Applicant as follows:
Hi Kyle
It is unlikely our lawyers will meet your deadline today as they’re in the process of reviewing what we’ve provided them.
Unfortunately, us having to search through our systems for the information we asked you for in the meeting, has caused delays. It is critical we provide our lawyers with all relevant information and they require time to review what’s provided in order to prepare advice.
Thanks
On 2 September 2022, the Applicant wrote to the Respondent as follows:
Hi Sonia,
It’s disappointing that Kyle has sent a number of emails to you this past week and has not had a response to them.
We were trying to reach a resolution that would avoid resources being wasted and legal costs incurred by both sides. Your lack of response indicates that the company would rather this case proceeds through the courts.
I have made an appointment for Kyle with my lawyer, Johnathon Stonebraker of Stonebraker Lawyers, this coming Monday and Johnathon will put together a claim and have it filed in court.
Kind Regards,
[Emphasis added]
On 2 September 2022, the Respondent responded to the Applicant as follows:
Hi Kieron
It is noted that you will be meeting with lawyers on Monday, in relation to your comments that:
1.It’s disappointing that Kyle has sent a number of emails to you this past week and has not had a response to them", This is incorrect. Kyle has sent me a number of emails since he resigned, and I have responded to all, with the exception of the email he sent on Tuesday 30/8.22 at 13:32. I have explained to Kyle on numerous emails why he has not heard from us.
2."We were trying to reach a resolution that would avoid resources being wasted and legal costs incurred by both sides. Your lack of response indicates that the company would rather this case proceed through the courts." As per my first point, there has not been a lack of response. I have explained to Kyle in the abovementioned correspondence that the initial delay was in relation to the company requiring time to look for the electronic communication we asked you for in the meeting. You were not forthcoming with that request telling us to look in our systems for it. We had no guidance on whom the communication was with, when the communication occurred, or what it was in regards to. That required us to look at a number of people's emails including retrieving email access to 2 employees who are no longer employed (Kyle & Greg). The second reason why we are yet to come back to you, is that we have had to collate all the information pertaining to your son's employment and request for compensation to provide them to company lawyers. They require a reasonable amount of time to review it in order to provide the company with advice that the company will use to decide its next steps.
It is unlikely that we will have any updates for you before mid next week.
Regards
On 8 September 2022, Clyde & Co wrote to the Applicant advising that they had received instructions to act for the Respondent. The contents of that email were as follows:
Dear Mr Dowd
We have received instructions from your son Kyle Dowd’s former employer, Advizer Pty Ltd, in relation to the claims he has recently made against it. Accordingly, please direct any further correspondence directly to us.
We are currently investigating Kyle Dowd’s claims and expect to provide a substantive response shortly. If you have engaged legal representation, please provide their contact details.
[Emphasis added]
The Applicant responded to the above email as follows:
Hi Thomas,
Thank you for your update.
Can you advise when “shortly” would be specifically? I would rather not engage my lawyer if it’s possible we can resolve directly, as it’s unlikely we will recover his full costs, and at $750 per hour it will mount up.
Kind Regards,
[Emphasis added]
On 9 September 2022, Clyde & Co responded to the Applicant as follows:
Dear Mr Dowd
A substantive response will likely be provided next week.
Kind regards
[Emphasis added]
On 19 September 2022, the Applicant wrote to Clyde & Co as follows:
Hi Tom,
It’s very disappointing that you haven’t responded to my emails.
As a matter of courtesy, can you confirm if you are going to respond to my emails or not, as we are holding off on lodging our claim to see if an amicable solution can be found?
Kind Regards,
On 19 September 2022, Clyde & Co responded to the Applicant as follows:
Hi Kieron,
Thanks for the below. We’re still seeking instructions so will revert once those are received.
We can not be more precise on timing unfortunately although anticipate this week or next we should have a response to you.
Regards
[Emphasis added]
Unchallenged Evidence
Annexed to the Applicant’s Outline of Submissions filed on 20 February 2023, were statements of Mr Evan Altaee and Ms Janet Guevara. At the time of the admission of evidence the Respondent was specifically asked whether it objected to those statements being before the Commission. No objection was raised, and no cross-examination of the deponents was sought.[1]
Mr Aktaee’s evidence included the following:
The sales floor was an extremely harmful environment and supported a culture of jealousy and sneakiness rather than friendly competition and teamwork. Kyle was consistently harassed by a particular manager in the company, which I witnessed first hand. This manager had close friends on the sales floor who followed suit in ridiculing Kyle and making his days miserable when attending work. The culture at Compare Club lacked genuine respect or care and instead made many employees including myself, feel judged and belittled.
Ms Guevara’s evidence included the following:
In my view, the culture at Compare Club is toxic and fosters an environment that tolerates bullying and harassment. Kyle would immediately confide in me after being verbally abused during one-on-one meetings with management and I saw other forms of mistreatment that affected his well-being and job performance. Despite reporting the incidents to upper management and HR, no significant action was taken to address the issue. As time went on, I saw the impact this had on Kyle's mental health, and he had no choice but to resign in August 2022.
The Relevant Provisions of the Act Regarding Dismissal
Part 3-1 of the Act is titled “General Protections”. Section 340(1) relevantly provides that a person must not take “adverse action” against another person because the other person has exercised (or proposes to exercise) a “workplace right”. Adverse action is taken by an employer against an employee if the employer (relevantly) dismisses the employee and that action is not authorised by law: s.342(1), item 1; s.342(3). There are other defined adverse actions that do not involve dismissal.
Section 12 defines the word “dismissed” by reference to s 386. It relevantly provides:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Division 8 of Pt 3-1 is titled “Compliance”. It establishes two regimes for dealing with disputes in which allegations of contravention of general protection provisions are made: a regime for dismissal disputes (Subdiv A) and a regime for non-dismissal disputes (Subdiv B).
Section 365 of the Act is contained in Subdiv A. It provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute in the event that an application is made under s.365. It provides:
Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
If a certificate is issued under s.368(3), the parties may agree to the Commission arbitrating the dispute pursuant to s.369. In that event, the Commission may deal with the dispute by arbitration and may make orders affecting the substantive rights of the parities, including orders for reinstatement, and for the payment of compensation (s.369(2)). Section 369(3) prohibits a person from contravening an order made under s.369(2).
Section 370 of the Act provides that “A person who is entitled to apply under s 365 for the FWC to deal with a dispute” must not make a general protections court application (as defined in s 368(4)) in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
Consideration Regarding Dismissal
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Tavassoli),[2] the Full Bench of the Commission conducted a detailed analysis of authorities relating to whether particular resignations constituted dismissal pursuant to various legislative schemes. After that analysis, the Full Bench provided the following distillation:
[47] Having regard to the above authorities and the bifurcation in the definition of
“dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:(1) There may be a dismissal within the first limb of the definition in s.386(1)(a)
where, although the employee has given an ostensible communication of a
resignation, the resignation is not legally effective because it was expressed in
the “heat of the moment” or when the employee was in a state of emotional
stress or mental confusion such that the employee could not reasonably be
understood to be conveying a real intention to resign. Although “jostling” by
the employer may contribute to the resignation being legally ineffective,
employer conduct is not a necessary element. In this situation if the employer
simply treats the ostensible resignation as terminating the employment rather
than clarifying or confirming with the employee after a reasonable time that the
employee genuinely intended to resign, this may be characterised as a
termination of the employment at the initiative of the employer.(2) A resignation that is “forced” by conduct or a course of conduct on the part of
the employer will be a dismissal within the second limb of the definition in
s.386(1)(b). The test to be applied here is whether the employer engaged in the
conduct with the intention of bringing the employment to an end or whether
termination of the employment was the probably result of the employer’s
conduct such that the employee had no effective or real choice but to resign.
Unlike the situation in (1), the requisite employer conduct is the essential
element.[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.
(Emphasis added)
It is apparent from the Applicant’s Submissions that the Applicant principally advanced the limb outlined at paragraph (b) of the definition in s.386(1). The Applicant identified what he described as “a culture of favouritism and bullying, which made me anxious to attend work and adequately do my job”. The alleged bulling behaviour of both his old and new Managers, and the psychological distress associated with the conduct towards him left him with no alternative but to resign.
The Respondent submitted that the Applicant resigned voluntarily, on two occasions. The Respondent maintained that it investigated the Applicant’s various complaints as outlined in the Application and found the complaints were unsubstantiated, though it is notable that the communication relied on of 17 May 2022, pre-dated the second resignation by three and a half months.
The Respondent denied the Applicant was forced to resign due the alleged conduct of the Respondent and said the Applicant has advanced “vague and ambiguous assertions” which had not been substantiated during internal investigations.
I reject the Respondent’s submissions and find that the Applicant was dismissed as the conduct engaged in by the Respondent was with the intention of bringing the Applicant’s employment to an end or was the probable result of that conduct such that the Applicant had no effective or real choice but to resign. That is because:
(a) Other than the email of 17 May 2022, there was no substance to the assertion that the Applicant’s complaints were investigated and found to be unsubstantiated. Notwithstanding the extensive correspondence after 4 August 2022, there were no conclusions reached as to substance after that date. Merely promises of possible consideration; and
(b) The Applicant, on the other hand, provided some contemporaneous records of his raising issues both before and after 4 August 2022, and the unchallenged evidence of Mr Altaee and Ms Guevara. The Applicant’s assertions were not vague and ambiguous, but rather were specific as to events and participants, and I accept the Applicant’s evidence. The Respondent simply failed to engage and address the Applicant’s assertions. An example was the Respondent’s complete failure to address the allegation that after 7 July 2022, the Applicant’s old Manager sprayed deodorant on the back of the Applicant’s head for a few seconds.
I note that I had harboured a concern, expressed at the Hearing,[3] as to how it could be found that the Respondent’s conduct was intended to end the employment in circumstances where the Respondent had one month before they encouraged the Applicant to withdraw his first resignation. However, the conduct of the Respondent as outlined by the Applicant, which did not abate after the first resignation, had as its probable result the Applicant having no effective or real choice but to resign.
I accept the Applicant’s evidence that the fear of having to continue under pressure at work put him in the position where he felt she had no alternative but to resign.
Consideration Regarding Extension of Time
As outlined above, s.366(1) of the Act states that an application for a general protections remedy 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). As I have determined that the dismissal took effect on 4 August 2022, the period of 21 days ended at midnight on 25 August 2022. The Application was therefore filed 42 days 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). The Respondent opposes this request.
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.[4] 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.
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.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must consider 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.
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 now consider these matters in the context of the Application.
(a)Reason for the delay
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]
In the Application, the Applicant provided the following reason for filing the Application out of time:
The delay is due to us trying to negotiate a settlement with the Employer. They kept saying they would respond within a week and then when contacted, extended this further and once the 21 days passed, they stopped responding.
At the Hearing, and for the first time in the proceeding,[6] the Applicant claimed he was unaware of the 21-day limitation period.
The Respondent submitted the delay was solely caused due to the Applicant’s attempts at trying to negotiate a commercial settlement without the need for the Commission’s involvement. Further, The Respondent submitted the Applicant was aware, or should have been aware from reasonable enquiries, of his capacity to seek compensation but failed to do so within the timeframes imposed by the Act. The Respondent referred to the decision in Stein v Bucyrus (Australia) Pty Ltd.[7]
I consider there is some merit in the Applicant’s criticism of the Respondent’s conduct in negotiations for a settlement, particularly because other than the meeting of 16 August 2022, there was nothing that could reasonably be described as negotiations. Rather, any negotiation or movement was being delayed. In particular:
(a) On 19 August 2022, the Respondent wrote to the Applicant advising they were further investigating the numerous bullying complaints and that once the information was held, they will provide the CEO and company lawyer with the material to make a decision about the compensation being sought;
(b) On 2 September 2022, the Respondent advised they were investigating the matter and would unlikely have any update before the middle of the next week;
(c) On 8 September 2022, the Respondent’s lawyer advised a response would be provided “next week”; and
(d) On 19 September 2022, the Respondent’s lawyers advised they were waiting instructions and should receive them “this week or next”.
While I accept there was significant delay by the Respondent, the Applicant was not bound to deal first, or exclusively with, the Respondent. He clearly knew of the other avenue available, and threatened to commence such proceedings on 2 September 2022, but chose not to. The negotiations with the Respondent were not an acceptable reason for delay.
I do not accept, however, that the Applicant was, or could reasonably have been, unaware of the 21-day limitation period. He was clearly aware of an action available to him because he referred to it in his email of 8 August 2022, and he had access to lawyers. Any rudimentary search would have alerted the Applicant to the limitation period. I also accept the Respondent’s submission that on its own, ignorance of the limitation period is not an exceptional circumstance.
Having regard to the above, I am not satisfied that the Applicant has provided an acceptable explanation for all the period of the delay, and that is a factor that weighs against the Applicant in this matter.
(b)Action taken to dispute the dismissal
The Applicant clearly sought to agitate his claims promptly with the Respondent, though as I have observed above those efforts largely met with delay. I consider those steps to constitute ‘action to dispute the dismissal’. This circumstance weighs only slightly in favour of the Applicant and a conclusion that there are exceptional circumstances due to the period of delay in total, and the period between the last correspondence between the parties and the commencement of the Application.
(c)Prejudice to the employer
The Respondent submitted that prejudice arises because:
(a) The Applicant has no right to commence the Application as he was not dismissed pursuant to s.365(1) of the Act;
(b) The Respondent has exhausted time and resources in investigating the alleged contraventions of the Applicants working rights along with incurring legal costs defending the Application which has no reasonable prospects and is without merit; and
(c) Since the Applicant commenced the Application, he has failed to adduce any further evidence in support of his allegations.
I have previously rejected each of the above three submissions of the Respondent. I further cannot identify any 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. I therefore consider this to be a neutral consideration.
(d)Merits of the application
The Act requires me to consider the merits of the Application in considering whether to extend time. It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
(e)Fairness as between the person and other persons in a similar position
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 protection’s application.
Regarding fairness as between the Applicant and other persons in a similar position, neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to consider under s.366(2), and all of the matters raised by the Applicant and the Respondent, I am not satisfied that there are exceptional circumstances.
My conclusions in this matter have been that the factor that weighs in favour of the Respondent and against the Applicant was the absence of any acceptable reason for a delay. While action taken to dispute the dismissal weighed slightly in the Applicant’s favour, my overall assessment of the relevant factors leads to a conclusion that I am not satisfied that there are exceptional circumstances. In those circumstances, there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the Application.
An extension of time is therefore refused and the Application for a general protections remedy made by the Applicant is dismissed. An order to that effect will be separately issued.
DEPUTY PRESIDENT CROSS
[1] Transcript PN 39 to 44. See also PN 129 to 139.
[2] [2017] FWCFB 3941.
[3] Transcript PN 93 to 100.
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] Transcript PN 14, 73 and 104.
[7] [2010] FWA 5983.
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