Mr Peter O'Dea v Bovogen Biologicals Pty Ltd

[2021] FWC 381

[2021] FWC 381

FAIR WORK COMMISSION

DECISION

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

Mr Peter O'Dea
v
Bovogen Biologicals Pty Ltd
(C2020/5370)

DEPUTY PRESIDENT LAKE BRISBANE, 27 JANUARY 2021

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

Background

[1] This decision concerns an application by Mr Peter O'Dea (Applicant) under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal. Section 366 of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2).

[2] The Applicant’s employment with the Respondent was terminated by way of termination letter dated 5 June 2020, stating the dismissal was with immediate effect and payment of 5 weeks’ wages to be made in lieu of notice.

[3] The application for General Protections Dismissal was filed in the Commission by the Applicant on 9 July 2020, being 34 days after his dismissal and 13 days outside the 21-day statutory timeframe for filing.

[4] My Chambers issued directions for the parties to file materials for a hearing of the extension of time matter, which was listed for hearing on 26 October 2020.

Consideration of whether a further period should be granted

[5] Under s.366 of the Act, a general protections application under s.365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.3662(2) of the Act. Section 366(2) sets out the circumstances in which the Commission may allow a further period for an application to be made:

“(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.”

[6] Satisfaction of ‘exceptional circumstances’ establishes a high bar for the Applicant. 1 The meaning of ‘exceptional circumstances’ was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd2 (Nulty), where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.3 The Full Bench also stated that ‘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 can be considered exceptional.’4

Section 366(2)(a) - reason for the delay

[7] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 5 or a reasonable explanation.6 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd a Full Bench of the Commission noted that the absence of an 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, and that all of the circumstances must be considered.7 However, ‘mere ignorance is not a reasonable or sufficient explanation for delay.’8

[8] The period of the delay is the period commencing immediately after the time for lodging an application expired, and ending on the day the application was lodged. However, the circumstances from the date on which the dismissal took effect can be considered in assessing the explanation for the delay.

[9] The Applicant submits that the application was not made outside the 21-day statutory timeframe. The Applicant submits that the Respondent and its representatives have ‘deliberately’ misled the Commission about the termination provisions in his Employment and Confidentiality Agreements.

[10] The Applicant referred to paragraph 16 of his contract of employment with the Respondent, which he signed on 31 October 2016, and provides:

“Termination with Notice

a) After the expiry of the probationary period, either party may terminate the employment agreement by giving four weeks’ notice in writing.

b) If you fail to give the required notice, Bovogen Biologicals may withhold from you any monies due to you on termination under this Agreement, any relevant award (if applicable) or the NES. Such amount will not exceed the relevant amount provided in clause 15.1(a) or any applicable award, or NES, less any period of notice actually given by you.

c) In the case of Bovogen Biologicals giving Notice of Termination, you will receive one (1) additional weeks’ notice if:

i) You are over 45 years of age at the time of notice of termination is given; and

ii) You have completed at least two (2) years of continuous service with the Company.”

[11] The Applicant submits that the Respondent issued a ‘Show Cause Notice’ which was immediately followed by a ‘Termination Notice’, and he states the Respondent attempted to “opt out of Bovogen (Australian) Contracted Hr & IR Agreements (31/10/2016) in favour of the Respondents parent Company ANZCO Foods Co Limited (New Zealand) HR & IR policies on dismissal”.

[12] The Applicant states that under the termination provisions of his employment contract as signed by him on 31 October 2016, there is no mention of a ‘Show Cause Notice’ followed immediately with a ‘Termination letter’. He submits that the Respondent’s termination with notice provisions as outline above, state clearly that there is “NO wavering from the ‘Notice Period (35 days – Contract + 21 days – FWC = 56 days)’” for either the employee or the employer.

[13] The Applicant confirmed that he has been compliant with the Commission’s timelines, in filing his application on 29 July 2020. He states he complied with the notice period under his contract of employment (being 35 days) plus the 21 days for filing a dismissal application in the Commission. He submits that in accordance with this notice period and the 21 days for filing, from the date of his termination letter, being 5 June 2020, he was allowed until 31 July to file his application.

[14] As to the filing of the General Protections application, the Respondent submits that it understands the application was filed on 9 July 2020 but was incomplete, and the completed application was not properly filed until 24 July 2020.

[15] The Respondent states that in accordance with the 21-day statutory timeframe, the application should have been filed by 26 June 2020, but was filed 34 days after the Applicant’s dismissal took effect, being 13 days out of time.

[16] The Respondent submits that there were no public holidays in June 2020 which would otherwise delay or impact the Applicant filing his application on time.

[17] As to whether there were ‘exceptional circumstances’ as to warrant an extension for filing, the Respondent refers to the decision in John Mamur v Coles Group Supply Chain Pty Ltd 9where the Full Bench of the Commission stated:

“[6] The test of “exceptional circumstances” establishes a “high hurdle” for an application for an extension. (Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]). A decision as to whether to extend time under s 366(2) involves the exercise of discretion (Halls v McCardle and Ors [2014] FCCA 316).

[7] The meaning of “exceptional circumstances” in s 366(2) was considered by a Full Bench of the then-named Fair Work Australia in Nulty v Blue Star Group Pty Ltd [5] (Nulty) as follows:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”

[18] The Respondent submits that the Applicant’s witness statement and submissions as filed on 24 September 2020 do not set out any circumstances for the delay, and therefore establishes no ‘exceptional circumstances’.

[19] The Respondent states the Applicant has claimed in error that his application was filed within time. It submits that the Applicant’s interpretation that the 21-day timeframe only commences after the notice period of 5 weeks has lapsed is incorrect. The Respondent confirms the Applicant’s dismissal had “immediate effect” as provided in the letter of termination, with payment made in lieu of notice. It confirms the applicant did not work out any notice period.

[20] As stated by Wilcox CJ in Siagian v Sanel Pty Ltd: 10

“It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately.  This conclusion not only reflects the more accurate meaning of the phrase "payment in lieu of notice"; it accords with common sense.  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 usually wish to end the relationship immediately.”

[21] Further to the Applicant’s error relating to the date of dismissal and the date for filing of his application, the Respondent states the Applicant has provided “no cogent reasons to account for the delay”, and refers here to the decision in Nulty which provides “Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance”. 11 The Respondent submits this weighs heavily against the Commission exercising its discretion to extend the time for filing.

[22] Ultimately, I prefer the account of the Respondent as no cogent explanation for the delay was provided. This factor does not weigh in favour of the Applicant’s claim for an extension.

Section 366(2)(b) - Action taken to dispute the dismissal

[23] The Applicant’s submission included, under a header of ‘any action taken by the person to dispute the dismissal’, various matters including concerns as to the Respondent business, its Board and a former owner, and matters relating to Supreme Court proceedings. I note that these matters are not summarised here, as they are not required to be given consideration in determining the current extension of time issue.

[24] The Applicant states he was frustrated with the issue of the Show Cause Notice and Termination Letter, the Respondent’s determination to “waste everyone’s time” in the Commission, and the Supreme Court proceedings, in the midst of a global pandemic which the Applicant states is “inexcusable”. The Applicant further states that the Respondent denied him and his family financial support from either the State or Federal Government throughout 2020, which he states “is abhorrent”. The Applicant submits that he was forced to sell his family home to survive the “economic mess” the Respondent has left him in.

[25] The Applicant states the Respondent denied him payments since January 2020, claiming the Applicant’s employment was on foot on unpaid leave. He states the Respondent denied him Job Seeker or Job Keeper payments. He states the Respondent has resisted producing a Separation Certificate.

[26] The Respondent submits the Applicant has taken no steps to dispute the dismissal, other than lodging his out of time general protections application, nor has the Applicant provided any evidence that he has sought to dispute his dismissal other than by lodging his application. The Respondent states the Applicant’s submissions on this criterion centred on “purported allegations of fact that predate the date of the dismissal”. It states the allegations are irrelevant considerations for any assessment of this criteria.

[27] The Respondent further states that on 12 May 2020, the Applicant ‘invited’ the Respondent to terminate his employment. The Respondent submits these matters weigh against the Commission exercising its discretion to extend the time for filing.

[28] Mr Bartlett filed a witness statements on behalf of the Respondent, and his evidence confirmed that the Applicant took no steps to dispute his dismissal between 5 June and 26 June 2020.

[29] I find that the Applicant did not contest his dismissal other than filing the General Protections claim. There were many other accusations that occupied the Applicant however he did not agitate or contest the matter of his dismissal. I find that this factor weights against an extension.

Section 366(2)(c) - Prejudice to the employer

[30] As to ‘any prejudice to the Employer’, the Applicant submitted the Respondent has at no time acted or shown genuine consideration for him. He states the Respondent has taken deliberate steps to deny the Applicant his employment rights under his contract of employment. He states further that he was a victim of workplace bullying and made a Work Cover Claim which the Respondent disputed.

[31] The Respondent states that the Applicant’s submissions as to ‘prejudice to the employer’ are unhelpful. It states the Applicant has addressed in his submissions, purported allegations of fact that predate the date of his dismissal, which are irrelevant considerations.

[32] The Respondent states that if the Commission grants a further period for the Applicant’s application to be filed, it would be prejudiced in light of:

a) Costs to the Respondent in participating in any hearing before the FWC, including representative costs, together with other costs and expenses associated with absences from the workplace;

b) Financial resources being taken away from the business that could otherwise be used to contribute to the Respondent’s research, having regard to its biopharmaceutical focus;

c) Human resources being distracted from servicing customers that require close and continual support for the COVID-19 response, including the vaccine testing industries;

d) Further unjust costs and expenses levied upon the Respondent in addition to those experienced to date; and

e) The continuation of these proceedings would provide Mr O’Dea with a platform to engage in intimidatory and harassing behaviour against Mr Bartlett, ostensibly on the basis of advancing legal claims under the FWA.

[33] It submits these factors weigh against the Commission exercising its discretion to extend time.

[34] I find in favour of the Respondent in this factor, the Applicant did not provide any sensible submission on this factor.

Section 366(2)(d) - Merits of the application

[35] The Applicant submits that the Respondent’s representative has attempted to deny the Applicant ‘due process’ offered under the employment contract, in favour of ANZCO “aggressive” HR & IR policies. The Applicant states the Respondent representatives were aware that the application was filed in time, and filed its Form F8A response “because they had not complied with Contracted Termination Notice Provisions”. He states the Respondent’s representatives “pounced” on the opportunity to claim the out of time objection “to overrule the [Applicant’s Employment] Contract”.

[36] As to the merits of his dismissal application, the Applicant submits that he is not the only employee whose contracted employment rights and conditions “are compromised”. He states he has witnessed other employees’ rights being “eroded” as a result of the Respondent’s new commercial arrangements. He states that all of the Respondent’s employees should be notified in writing of the “litigious nature” of the Respondent and the threat against their existing contracted agreements.

[37] The Applicant submits that his loss of income, and the impact on his professional reputation and his health and safety as a result of workplace bullying, are so significant that he has sold his family home to “fund a defence against the Respondent and the wealth of the parent company ANZCO”.

[38] The Applicant submits he has been ‘demonised’ by the Respondent, including prosecuted in the Supreme Court for being a ‘whistleblower’.

[39] The Respondent submits the Applicant was terminated for a legitimate reason of misconduct. The Respondent does not dispute that termination falls within the meaning of ‘adverse action’, however it states the Applicant has failed to identify any “workplace right” that has caused the termination of his employment. It states the Applicant has advanced “wild conspiracy theories involving a range of third parties”.

[40] The Respondent submits the reasons for the Applicant’s dismissal are based in fact, and noted the extensive and ‘resource intensive’ efforts of the Respondent to “restrain the Applicant’s material breaches of confidentiality”.

[41] The Respondent submits that the Commission should find that the Applicant’s application lacks merit and would not succeed.

[42] It submits in the alternative, in the absence of a full hearing into the merits of the Application, the Commission can at best find the Application is not without merit, and this would be treated as a neutral factor in relation to the extension of time consideration.

Witness statement of Mr Matthew Bartlett

[43] Mr Bartlett, General Manager of the Respondent, filed a witness statement in support of the Respondent’s submissions. His evidence relates primarily to the merits of the Applicant and the Applicant’s dismissal.

[44] Mr Bartlett’s evidence is that from around mid-October 2019 until the date of the Applicant’s dismissal on 5 June 2020, the Applicant was on leave without pay. He notes the Applicant made a workers compensation claim during this time, which was rejected by the insurer, Allianz.

[45] Mr Bartlett gives evidence regarding interlocutory proceedings against the Applicant in the Supreme Court. He states in response to the Applicant’s submissions that the proceedings in the Supreme Court were discontinued in light of the business running out of capital to continue the action, notwithstanding the importance of its claims against the Applicant.

[46] Mr Bartlett states the Applicant had disseminated highly confidential information about the Respondent business, which resulted in the Show Cause Letter being issued. Mr Bartlett states the Applicant did not respond to the Show Cause Letter, and accordingly on 5 June 2020, he signed and caused issue of the Applicant’s Termination Letter.

[47] Mr Bartlett states that consistent with clause 16 of the Applicant’s contract of employment, he terminated the Applicant’s employment with immediate effect, with payment in lieu of notice.

[48] Mr Bartlett also submits he holds genuine concerns for his personal safety from the Applicant. He states continuation of the proceedings would provide the Applicant a platform to engage in intimidatory and harassing behaviour against him. He states the Applicant is a vexatious litigant, and has failed to demonstrate exceptional circumstances as to warrant an extension of the time for filing.

[49] Given that this is a matter where there are quite some matters in dispute on the facts. and without all the relevant evidence being led and tested I am unable to make a determination on the merits. I weigh this as a neutral factor.

Section 366(2)(e) - Fairness as between the person and other persons in a similar position

[50] As to fairness between the Applicant and persons in a like position, the Applicant made submissions regarding the behaviour of the Respondent’s General Manager, stating he is not fit for the position he holds. He lists a number of accusations against the General Manager, however I note these matters are not relevant to the consideration of ‘fairness between the Applicant and persons in a like position’ as contemplated by s.366(2)(e) of the Act, and accordingly these matters are not summarised here.

[51] The Respondent states that if the Commission exercises its discretion to extend time, it would create unfairness due to the Commission’s ‘established position’ in refusing applications in the absence of exceptional circumstances.

[52] I regard this factor as neutral, there were no other persons in a similar position

[53] The Respondent submits that for the above reasons, the Commission should decline to exercise its discretion under s.366(2) and the application should be dismissed.

Conclusion

[54] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[55] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application, none of the factors in s.366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[56] I decline to grant an extension of time under s.366(2). The Applicant’s application under s.365 of the Act is dismissed.

[57] I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].

 2   [2011] FWAFB 975.

 3   Ibid citing Baker v The Queen (2004) 223 CLR 513 at 573 and since cited with approval in Tamu v Australia for UNHCR[2019] FWCFB 2384.

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

 5   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, at [9] (Gostencnik DP).

 6   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, at [16] (Hatcher VP).

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39].

 8   Selic v Corporation of the Synod of the Diocese of Brisbane[2020] FWC 22, at [26].

 9   [2020] FWCFB 4954.

 10 [1994] IRCA 1; 122 ALR 333.

 11   Nulty v Blue Star Group Pty Ltd at [14].