Mr Robert Ricketts v Lotus Commercial Pty Ltd
[2025] FWC 442
•14 FEBRUARY 2025
| [2025] FWC 442 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Robert Ricketts
v
Lotus Commercial Pty Ltd
(C2024/8713)
| COMMISSIONER WILSON | MELBOURNE, 14 FEBRUARY 2025 |
Application for general protections involving dismissal – extension of time – no exceptional circumstances – application dismissed
This decision concerns an application made by Robert Ricketts (the Applicant) for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (Cth) (the FW Act). Mr Ricketts’ argues he has been dismissed by the First Respondent, Lotus Commercial Pty Ltd (Lotus Commercial, or the First Respondent) in contravention of provisions of the FW Act. In addition to Lotus Commercial as the First Respondent, Mr Rickett’s application also alleges contraventions by two named individuals whom I chose not to identify in this decision.
Section 366 of the FW Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. Mr Ricketts argues the date of effect of his dismissal was 28 November 2024. Lotus Commercial argues Mr Ricketts was not dismissed and that his employment ended at the conclusion of a night shift he worked on 12 and 13 September 2024. Mr Ricketts lodged his s.365 application with the Commission on 30 November 2024, as such, if Mr Ricketts employment ended at anytime before 9 November 2024, it will be necessary for him to be granted an extension of time in order for his application to continue.
Lotus Commercial’s submission that Mr Ricketts was not dismissed stems from its view that he was a casual employee and that he was unable to be contacted after his final shift on the night of 12 and 13 September 2024. It argues that, as a casual employee, Mr Ricketts had no entitlements to work after one shift had ended, and that further work stands alone from earlier periods of work.
The question of whether Mr Ricketts was dismissed is not dealt with in this decision, which only deals with the question of when employment ended and whether an extension of time is required for the filing of his application (to the extent the termination was a dismissal).
A determinative conference regarding Mr Ricketts’s application for an extension of time for his application was held on 5 February 2025. Mr Ricketts appeared in the determinative conference and made submissions and gave evidence on his own behalf. The First Respondent, Lotus Commercial was represented by Mr Tim Richards, its National Operations Manager. As I did not consider it to be necessary, evidence was not drawn from Mr Richards. There was no appearance by either the Second or Third Respondents and I did not consider their appearance in these proceedings to be necessary.
Date of termination
Mr Ricketts was employed by Lotus Commercial commencing 21 July 2024 in the capacity of a kitchen services assistant, working out of its Townsville premises. His duties required him to undertake work on his own in the premises of Lotus Commercial. Before suffering an injury at work that Mr Ricketts says occurred on 13 September 2023, Mr Ricketts says he worked a large number of hours each week, between 35 and 50 hours, from the time that his employment commenced.[1]
Mr Ricketts worked his last shift for Lotus Commercial on the night of 12 and 13 September 2024. Mr Ricketts says that on Friday, 13 September 2024 he injured his right wrist at a particular customer’s premises when he fell after attempting to secure an extension ladder to his vehicle’s roof rack. Mr Ricketts’ evidence is that he attended a hospital at about 6 AM and tried to contact relevant people in the employer’s business but neither answered. He then went to the company’s office and saw his supervisor there, Mr Phillip Garland, who told him that he should “harden up” and, with reference to his wrist, that “nothing is wrong with it”. The discussion between the two degenerated into an argument.
In the week after 13 September 2024, Mr Ricketts had been rostered for work, however he informed his employer on 16 September 2024 that he was unable to attend work for that week. Mr Ricketts then says that Mr Garland tried to contact him on 23 September 2024, however he “was unable to answer the call due to other responsibilities”. Mr Garland made contact with Mr Ricketts on Wednesday, 25 September 2024 in which Mr Ricketts informed Mr Garland about his financial situation; that he had been evicted from his rental house in Townsville; and that he planned to move back to his parents’ house, some distance away in Moura. Mr Garland “told me that he would arrange work for me. As part of the work area included Moura and surrounding Towns/Cities and that he promised to use me to do work around the area. We verbally agreed to this arrangement over the phone”.[2]
Lotus Commercial argue that Mr Ricketts informed his manager that he was relocating and that, while it tried to contact him numerous times, there was no response.[3]
By Wednesday, 2 October 2024 no work had been offered and Mr Ricketts messaged Mr Garland asking for an Employment Separation Certificate “to enable me to get training and financial support through centrelink”. Mr Ricketts pressed for a response on 8 October 2024. When he contacted Mr Garland’s personal assistant and explained why he needed the certificate, she replied that Mr Garland would not be at work until the following Monday, 14 October 2024. The personal assistant then questioned Mr Ricketts about the return of company property saying that “Phil won’t be able to give you a separation certificate until we get the key and uniforms back”.[4] There was further contact between Mr Ricketts and Mr Garland on 14 October 2024, with Mr Garland making it clear that he needed the company’s keys and other property to be returned.
Mr Ricketts continued to press for provision of an Employment Separation Certificate, with one eventually being sent to him on or around 28 November 2024. The certificate states that Mr Ricketts started working for Lotus Commercial on 21 July 2024 and that the date his employment ceased was 12 September 2024. The certificate itself is dated 28 November 2024.
I am satisfied from the material before me that, by no later than Wednesday, 2 October 2024, Mr Ricketts had asked Lotus for an Employment Separation Certificate.[5] While Mr Ricketts said in the determinative conference that his motive in seeking the certificate was to obtain funds which he desperately needed, without him actually believing that he had been dismissed, the ordinary use of the certificate is for employees who no longer have employment and need social security assistance. While that circumstance is by no means definitive of whether there has been a termination of employment, it leans toward such a finding.
Coupled with the statements made by Mr Ricketts about the contacts he had with Mr Garland during the second half of September, the overall circumstances of the matter point to there being a mutual understanding that employment had come to an end by 2 October 2024. I reject that Mr Ricketts only understood his employment to have come to an end when he received the employment separation certificate on or around 28 November 2024. The chain of text messages between him and Mr Garland very clearly show that each considered the relationship had come to an end some significant time earlier. This is particularly demonstrated by the requests made repeatedly for the return of keys and uniforms. An exchange between a manager and employee about return of keys and uniforms very likely suggests at least one side thinks employment has ended, as well as indicating to the other party that such is how the relationship is viewed.
I am satisfied from the overall material that the employment relationship ended no later than 2 October 2024. It is not necessary though in the context of this decision for me to determine whether that relationship was ended either by the Applicant, Mr Ricketts or the First Respondent, Lotus Commercial.
Having found that the termination of Mr Rickett’s employment took effect on Wednesday 2 October 2024, the last day for an in-time general protections application was Wednesday, 23 October 2024. Given that the actual lodgement date of Mr Ricketts application was Saturday, 30 November 2024, his application to the Commission was 38 days out of time. It follows that, for Mr Ricketts’ application to continue, he will need to be granted an extension of time for its filing.
Extension of time
In considering an application for an extension of time for the making of a general protections application, the Act requires satisfaction that there are exceptional circumstances to warrant the extension, taking into account the criteria which are specified within s.366(2). The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[6] A decision to extend the time period under s.366(2) involves the exercise of a discretion.[7]
For the reasons set out below I am not satisfied there are exceptional circumstances such that a further period for filing should be allowed for Mr Ricketts’ application.
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
CONSIDERATION
Extension of time – the criteria within s.366(2)
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon”.[8]
In considering whether an extension of time should be granted to Mr Ricketts, I am required to consider all of the criteria in s.366(2), which I now do.
The reason for the delay
It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[9] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[10] An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay. It could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[11] While the “reason for the delay” is a factor that must be taken into account, this does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[12]
The “delay” to be considered in this case is the period it took after the prescribed period for Mr Ricketts to lodge his application. As Mr Ricketts’s employment ended on Wednesday 2 October 2024, an in-time application would need to have been made before midnight on Wednesday, 23 October 2024. As a result, the delay to be considered is the 38 day period after 23 October 2024 until the actual lodgement on 30 November 2024.
Mr Ricketts’ explanation for the late lodgement includes that he did not regard his employment as having ended until he received the Employment Separation Certificate and that he disputed not being provided with further work.
I have dealt with the matter of the date of termination of employment earlier in this decision and do not repeat my reasoning on the subject.
Relevant to whether Mr Ricketts was seeking further work, the exchanges before the Commission that Mr Ricketts had with the Lotus Commercial after 2 October 2024, being the date of termination found by me, were directed to obtaining the Employment Separation Certificate. Nothing within the exchanges after 2 October 2024 would reasonably suggest that Mr Ricketts either sought further employment or sought to contest his termination, by pursuing a general protections application;
Text exchanges on 8 October 2024 between Mr Ricketts and Mr Garland and his personal assistant were on the subject of the Employment Separation Certificate;[13]
On 17 October 2024 Mr Garland texted Mr Ricketts asking “I’m getting reference stuff from Ray white” and whether the latter wanted anything done about it;[14]
The text to Mr Garland on 26 November 2024 from Mr Ricketts sought a contact number for HR and the fraud reporting process[15] and referred to being restrained by a non-disclosure agreement.[16] Mr Garland responded with a further request for the return of company property.[17]
These exchanges do not show efforts by Mr Ricketts to either seek further work or to contest his termination and as such do not explain the late lodgement of his general protections application. His assumption that the employment relationship he had with Lotus Commercial only ended with provision of the Employment Separation Certificate was plainly wrong, however ignorance or a misunderstanding of one’s rights is not regarded by the Commission as exceptional.
As a result, I do not find that Mr Ricketts has put forward an acceptable explanation for the delay in making his application. Therefore, my consideration of this criterion does not resolve in his favour in deciding whether an extension of time for filing should be granted.
Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[18]
There is no material before me to suggest that Mr Ricketts has taken other steps to dispute his dismissal. The text exchanges referred to above do not resolve as action by the Applicant to dispute his dismissal This is therefore a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 38 days. The Respondent does not claim that the delay in lodging the application caused it prejudice.
In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter also is a neutral factor in my consideration.
The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.
In relation to the Commission’s consideration of the merits of an application, when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such a case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[19]
In general protections matters, s.361(1) presumes that adverse action was taken for an alleged prohibited reason unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities, in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases, an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question.[20]
Mr Ricketts claims he was dismissed after being injured at work and for seeking medical attention for the injury, as well as making complaints about his employment. He also puts forward that he was the subject of “extortion” when he requested an employment separation certificate. Lotus Commercial deny these claims, arguing that Mr Ricketts did not make any protected complaints and was not injured while at work.
Given the wide divergence of the parties’ respective cases, consideration of this criterion is a neutral factor in my overall consideration of whether there are exceptional circumstances that would warrant the extension of time.
Fairness as between the person and other persons in a like position
In considering whether I should grant an extension of time, I need to have regard to whether any matters of fairness arise either to Mr Ricketts or to other general protections applicants whose applications are either currently before the Commission or have been decided in the past.[21]
No such factors are featured in this matter and so consideration of this criterion is also a neutral factor in my conclusion about exceptional circumstances.
CONCLUSION
Consideration of the statutory criteria in relation to exceptional circumstances shows that none of the criteria resolve in favour of Mr Ricketts and in particular there is not an acceptable explanation for the delay in making his application. Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are not exceptional circumstances that would allow a further period for a general protections application to be made by Mr Ricketts.
For these reasons, I decline to grant an extension of time pursuant to s.366 of the Act and will issue an Order dismissing Mr Ricketts’s application at the same time as this decision.[22]
COMMISSIONER
Appearances:
Mr R. Ricketts, for the Applicant.
Mr T. Richards, for the Respondent
Hearing details:
5 February.
2025.
[1] Transcript, PN32.
[2] Applicant’s statement; Digital Hearing Book (DHB), p.13.
[3] Lotus Commercial Outline of Argument, DHB, p.49.
[4] Applicant’s statement; DHB, p.14.
[5] Transcript, PN37 & PN61.
[6] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[8] Nulty v Blue Star Group, [2011] FWAFB 975 (2011), 203 IR 1, [13].
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[10] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.
[11] Ibid, [40].
[12] Ibid, [41].
[13] Applicant’s documents, DHB, p.28; Lotus Commercial’s documents, DHB, p.62.
[14] Applicant’s documents, DHB, pp.23 – 29.
[15] Applicant’s documents, DHB, p.19.
[16] Lotus Commercial’s documents, DHB, p.61.
[17] Lotus Commercial’s documents, DHB, p.61.
[18] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[19] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[20] Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941 [50], (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445.
[21] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[22] PR784372.
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