Mr Willem Vogrin v Collins Transport Group Pty Ltd
[2025] FWC 196
•21 JANUARY 2025
| [2025] FWC 196 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Willem Vogrin
v
Collins Transport Group Pty Ltd
(C2024/8552)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 21 JANUARY 2025 |
Application to deal with contraventions involving dismissal – late lodgement – applicant consults lawyer, contacts employer and makes inquiries in wrong jurisdiction – whether confusion over legal advice or non-response by employer a reasonable explanation – whether exceptional circumstances – time for late lodgement not extended – application dismissed
On 27 November 2024, Mr Willem Vogrin (Mr Vogrin or the applicant) made a general protections application under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions associated with his dismissal.
Mr Vogrin’s application is against his former employer, Collins Transport Group Pty Ltd (Collins Transport, the respondent or the employer), which he alleges committed the contraventions. The respondent opposes the application.
It is not in dispute that the application is six days out of time. Mr Vogrin seeks an extension. This is opposed.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires applications under s 365 to be within jurisdiction before the Commission can exercise the powers conferred by s 368. It is thus necessary to determine the out of time issue if Mr Vogrin’s application is to proceed further.
I issued directions on 20 December 2024 and conducted a hearing on 16 January 2025. Both parties were self-represented; Mr Vogrin assisted by his wife Mrs Raelene Vogrin.
I had conducted conciliation in 2023 on an unfair dismissal claim made by Mr Vogrin concerning a previous employer. Having drawn this to the attention of the parties, neither objected to me dealing with the current application.
I received evidence from:
Mr Willem Vogrin (applicant)[2]; and
Mrs Raelene Vogrin.[3]
Facts
The facts are not in dispute.
Mr Vogrin is a resident of Adelaide and worked for Collins Transport at their Adelaide depot.
On 31 October 2024, Mr Vogrin’s employment was terminated with payment in lieu of notice.[4] At the time of dismissal, Mr Vogrin had an active workers compensation claim and was on restricted duties. The reason for termination stated by Collins Transport was that Mr Vogrin had been “unable to obtain the necessary medical clearance to undertake your pre-injury duties”.[5]
Mr Vogrin was upset and angry at being dismissed. Upon informing his wife that evening, both questioned whether the dismissal was fair or lawful given that Mr Vogrin had an active workers compensation claim.
On 1 November 2024 (by text), Mr Vogrin contacted the employer and obtained details of how to return company property. On 4 November 2024, Mr Vogrin telephoned Collins Transport (Mr Guadagnin) seeking information about his final pay calculation. The call was not answered. Mr Vogrin did not leave a message seeking a return call.
Between 31 October 2024 and 11 November 2024, Mr and Mrs Vogrin continued to discuss whether to take action to dispute the dismissal.
On 11 November 2024, Mrs Vogrin, on her husband’s behalf, telephoned and then emailed the workers compensation insurer (Gallagher Basset) advising that Mr Vogrin had been dismissed and seeking advice on “where to go from here”.[6]
On or around that same date, 11 November 2024, Mrs Vogrin searched online for information about her husband’s legal rights. She telephoned a legal advice information line and spoke to a New South Wales (NSW) based lawyer. When informed about NSW workers compensation laws, she realised that she required information about legal rights in South Australia.
On 13 November 2024, an officer of the insurer returned Mrs Vogrin’s call. The insurer advised that it did not deal with industrial issues such as dismissals and suggested that Mr Vogrin obtain private legal advice on his rights.
On 13 November 2024, Mrs Vogrin made an appointment for the following day with a solicitor at an Adelaide based legal firm experienced in industrial matters.
On 14 November 2024, Mr and Mrs Vogrin attended the appointment (by video). According to Mrs Vogrin’s evidence, the solicitor informed Mr and Mrs Vogrin about rights that exist under the South Australian Return to Work Act 2014 (which she understood must be exercised in the South Australian Employment Tribunal (SAET) within 30 days), and of rights that exist under general protection laws under the FW Act (which must be exercised in the Commission within 21 days of dismissal) and of the costs the solicitors would charge if instructed to act. According to Mrs Vogrin’s evidence, the solicitor also suggested that Mr Vogrin write to Collins Transport disputing the lawfulness of the dismissal and provide them a week to respond.
Following the meeting with the solicitor, and after Mrs Vogrin conducted further online research, Mr and Mrs Vogrin privately decided:
not to engage the solicitors due to the costs involved;
to take up the solicitor’s suggestion to write to Collins Transport;
not to make a general protections claim in the Commission, because the 21-day time limit was soon upcoming, but to prefer to use what they believed to be the longer 30-day period to make a claim in the SAET if the response by Collins Transport was unsatisfactory; and
if they needed to make a claim, to do so themselves.
Four days later, on 18 November 2024, Mr Vogrin sent an email to Collins Transport (prepared by Mrs Vogrin) protesting the dismissal and asserting that, based on advice received, the dismissal was contrary to “your obligations under section 18 of the RTW Act of SA”.[7]
The email did not specify a timeframe for response.
Mr and Mrs Vogrin waited until 25 November 2025 (a week from 18 November) for a reply by Collins Transport. Collins Transport did not respond.
On 25 November 2024, Mrs Vogrin searched the SAET website for a form to make a claim to the SAET concerning Mr Vogrin’s dismissal. She was unable to locate a form. She telephoned the SAET to obtain guidance. An officer of the SAET informed Mrs Vogrin that the SAET only dealt with dismissal matters involving South Australian government employees, and that if Mr Vogrin wished to make a general protections claim disputing his dismissal by a private sector employer, he must do so in the Fair Work Commission.
Later that same day (25 November 2024), Mrs Vogrin telephoned the Fair Work Commission enquiries line and sought information about how to access a general protections application form. She was provided that information.
Mrs Vogrin then downloaded a general protections form (F8) and printed it off at a local library.
On 26 November 2024, Mrs Vogrin populated the form on her husband’s behalf. In answer to item 1.4 she stated that the application was lodged out of time and provided the following explanation:
“I sought advice from a lawyer in regards to my termination & was advised to write to my employer & see what their response is to my concerns. I emailed Daniel (WHS) & included David Haynes. (GM). On the lawyers advice I waited one week & have not received a response. The lawyer advised me to lodge a form with SAET & that I had 30 days to do so. When I contacted SAET, they told me that as Collins is a private company I would have to lodge through the Fair Work Commission. If I had been given that information I would have lodged immediately.”
On 27 November 2024, Mrs Vogrin gave the completed form to her husband, who signed it. Mrs Vogrin lodged the application under cover of an email sent to the Commission at 1.10pm that day (27 November 2024).
Submissions
Mr Vogrin
Mr Vogrin submits that time should be extended because the delay was caused by a combination of two circumstances:
the failure by Collins Transport to respond to the email of 18 November 2024; and
incorrect advice from the solicitors they consulted on 14 November 2024 about the right to make a claim in the South Australian Employment Tribunal.
Mr Vogrin submits that he has a strong case on merit because of the obligations on an employer to provide work to an injured employee under the South Australian workers compensation system (s 18 Return to Work Act 2014).
Collins Transport
Collins Transport submit that time should not be extended because the circumstances are not exceptional. This is a case of error and misjudgement by Mr and Mrs Vogrin, not by a legal representative.
Collins Transport submit that Mr Vogrin:
at the time of dismissal was aware of rights to challenge dismissals in the Fair Work Commission and that time limits applied because he had made an unfair dismissal claim against a previous employer in 2023;
waited for eleven days after dismissal before making enquiries about his rights;
waited for eighteen days after dismissal before informing the employer that he disputed the dismissal;
in conjunction with his wife, decided not to make an in-time general protections claim in the Commission despite being informed by a solicitor seven days prior to the deadline that rights to do so existed but needed to be exercised within 21-days of dismissal;
decided not to engage the solicitors who gave them that advice;
decided to advance their rights in the SAET in preference to making a claim in the Commission; and
to the extent there was any confusion about the information or advice they had received, Mr Vogrin did not take steps to clarify any confusion nor seek alternate legal advice.
Consideration
Section 366 provides:
“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.”
I now consider whether an extension of time should be granted for the late lodgement.
An applicant for an extension of time has an onus to adduce evidence in support of matters which they assert constitute exceptional circumstances.[8]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[9] A decision whether to extend time under s 366(2) involves the exercise of a discretion.[10]
I apply s 366(2) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[11]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[12]
I now consider each of the factors in s 366(2).
Reason for delay (s 366(2)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[13] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[14]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[15] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[16]
In this matter, the delay period is six days, 22 to 27 November 2024 inclusive.
I now deal with the reasons for delay advanced by Mr Vogrin.
Failure by employer to respond to email about dismissal
I have found that Mr Vogrin informed Collins Transport on 18 November 2024 that he considered the dismissal contrary to the employer’s legal obligations. I have found that Mr Vogrin had hoped for a response within a week but did not specify that in his email of 18 November. I have also found that Collins Transport did not respond to this email.
These findings do not constitute a reasonable explanation for the delay.
Firstly, sending the email to the employer did not preclude filing an in-time application three days later.
Secondly, Mr Vogrin sent the email eighteen days after dismissal. This provided only three days for the employer to respond before a general protections claim would be out of time. Whilst he did not receive legal advice until 14 November 2024, Mr Vogrin could have but did not inform the employer at an earlier date (including during his contact on 1 and 4 November) that, in at least general terms, he disputed the dismissal. In his email Mr Vogrin did not specify a time frame for a response, let alone within three days.
Thirdly, the decision by Mr Vogrin to wait a week (seven days) for a reply after sending the email, even if based on advice from the solicitor he consulted on 14 November, was ultimately his decision. In making that decision Mr Vogrin did not take into account that he had delayed sending the email by four days after receiving such advice.
Fourthly, whilst it was impolite of Collins Transport to not respond, it had no obligation to do so. No employment relationship existed when the email was sent and received, and the email simply invited an exchange of views (likely to be contested) about the appropriateness or lawfulness of the dismissal which had occurred weeks prior.
Fifthly, it is factually wrong for Mr Vogrin to submit, as he does, that “if I had not waited for a reply to my letter to Collins, my application would not have been late”.[17] Having decided to wait for a reply for seven days from 18 November 2024, an application filed at the expiry of that seven day period (25 November 2024) would have still been four days late.
Incorrect advice from solicitors
I have found that Mr Vogrin did consult solicitors on 14 November 2024, and received general legal advice. That advice was not given as part of a solicitor-client relationship because Mr Vogrin decided not to engage the firm as his legal representative as he did not wish to pay legal fees.
In making this finding I note that no evidence was led from the solicitor who gave the advice as to what was advised. All I have is Mr and Mrs Vogrin’s evidence about what they understood was said to them. Mrs Vogrin was frank in saying in her evidence that a lot of information was conveyed and some of it could have been overwhelming to her and her husband. This is clearly plausible given that Mr and Mrs Vogrin were taking advice on legal matters that concerned rights and obligations under both state and federal law.
Mr Vogrin submits that he received incorrect advice on 14 November 2024 because he was advised that he had rights to take action in the SAET within 30 days, and was not advised that dismissal action in the SAET could not be taken against a private sector employer.
It is not safe to make such a finding based purely on the evidence of Mr and Mrs Vogrin that incorrect or misleading legal advice was provided on 14 November. It is more plausible that Mr and Mrs Vogrin misunderstood or were confused by what was correct advice. Mr Vogrin (who was on restricted duties at the time of dismissal) was dismissed whilst having an active workers compensation claim under State law. Rights and obligations of injured workers under the South Australian Return to Work Act 2014 can be litigated in the SAET (with one month time limits after an employer response or non-response to a request for suitable duties[18]). Mr Vogrin made accurate reference to those rights in his email to Collins Transport on 18 November and that email appears to have been based on the legal advice given. Equally, rights exist under the FW Act (Commonwealth) to litigate dismissals where a private sector employee is dismissed because of the exercise of a workplace right. These are general protections claims, and they must be made within 21-days of dismissal unless time is extended. Dismissal claims under the FW Act cannot be brought in the SAET and must be brought in the Commission. It is apparent from the evidence that that Mr Vogrin was informed by the solicitors on 14 November 2024 of the right to make a general protection claim and that this must be done in the Commission within 21-days of dismissal. To that extent, if that was the advice given, it was also accurate.
Whilst it cannot be entirely discounted that inaccurate advice may have been provided (though I am unable to make such a finding to the requisite standard), it is more plausible that Mr and Mrs Vogrin received accurate advice but did not understand the difference between exercising workers compensation rights under South Australian law (in the SAET) and exercising dismissal rights under federal law (in the Commission). It is more likely than not that they wrongly interpreted the advice as giving them equal options of making a dismissal claim within 21 days (to the Commission) or 30 days (to the SAET) and chose the longer period because it bought them more time to communicate with the employer.
To the extent this occurred, this was an understandable confusion on their part. They were being advised on the intersection of state and federal law and jurisdictions. However, it is only in part a reasonable explanation for the delay. Neither Mr Vogrin or his wife took steps to seek to clarify that advice before or when electing not to act on the advice that they could make a general protections claim but needed to do so within 21-days. Instead, they chose to wait for the longer period to pursue rights under State law.
Allied to this submission by Mr Vogrin is the suggestion that he may also have received incorrect advice from the SAET officer on 25 November 2024 when told that a general protections dismissal claim against a private sector employer cannot be made in the SAET but needed to be made in the Commission. To the extent this is what Mr Vogrin was advised, the SAET officer was correct.
Considered overall and in combination, the applicant’s confusion after receiving legal advice was understandable but the explanations for the delay weigh only to that limited extent in favour of a finding of exceptional circumstances.
Action taken to dispute dismissal (s 366(2)(b))
Mr Vogrin informed Collins Transport on 18 November 2024 that he considered the dismissal contrary to the employer’s legal obligations. This was eighteen days after dismissal.
In his earlier post-dismissal contact with Collins Transport (1 and 4 November 2024) Mr Vogrin gave no indication that he contested the dismissal or was considering doing so.
Nonetheless, Mr Vogrin did take some action inside the 21-day period to put the employer on notice that he disputed the dismissal.
This consideration weighs somewhat in favour of a finding of exceptional circumstances.
Prejudice to the employer (s 366(2)(c))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[19]
If time is extended, a claim would have to be further responded to by the employer, at least to the extent of participation in conciliation. However, that prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not of itself be a reason to grant an extension.[20]
This is a neutral consideration.
Merits (s 366(2)(d))
A court hearing would concern whether the employer dismissed Mr Vogrin contrary to law.
Collins Transport have made it clear that proceedings will be contested.
Being a general protections application, it will need to be established that Mr Vogrin was dismissed for exercising a workplace right. The workplace right said to have been exercised was the right to make a workers compensation claim and be provided alternate or light duties under s 18 of the Return to Work Act 2014 (SA) in lieu of being dismissed.
As these contentions involve a combination of factual and legal matters that have not been canvassed in these extension of time proceedings, the merits are a neutral consideration.
Fairness between persons in similar position (s 366(2)(e))
Whilst extensions of time have been granted in some matters before the Commission because an employee has made an error, most cases of error concern representative error, which this is not.[21] In cases of error (whether representative or otherwise) the guiding principle is a consideration of the conduct of the applicant employee, and the extent (if any) to which they contributed to or sought to mitigate the effect of the error.
Each case turns on its own facts. No other general rule can be reasonably gleaned from past cases or applied to this matter.
This is a neutral consideration.
Conclusion
The period of delay, being six days, is not lengthy but, in the context of a 21-day time limit, is not immaterial. In any event, the circumstances must be exceptional for time to be extended, even by this amount.
The explanations for the delay weigh to a limited extent, but a limited extent only, in favour of a finding of exceptional circumstances. That Mr Vogrin put the employer on notice that he disputed the lawfulness of the dismissal also weighs in his favour. So too does the fact that Mr and Mrs Vogrin moved relatively promptly to file in the Commission once they were informed by the SAET that a general protections dismissal claim could not be made in that tribunal against a private sector employer.
However, as Mrs Vogrin put it in her evidence, “in all honesty we did take time to look into the pros and cons, to decide how to proceed, to look at the laws etc”.[22] The delay was caused by somewhat understandable but self-created errors and misjudgements jointly made by Mr and Mrs Vogrin. I take into account that each were doing the best they could in the circumstances and were lay persons.
However, the errors and misjudgements were choices and decisions on their part; for example, not to engage the solicitors they consulted on 14 November but to risk exercising legal rights as lay persons and thereby risk error; not to make a general protections application in the Commission despite being advised that a 21-day time period applied because they thought they had a longer period of time to make a SAET application; not to seek clarification of the legal advice prior to the 21-day period expiring or following their decision to pursue rights in the SAET in preference to the Commission; and to wait four days after being advised before writing to the employer and then waiting a further week from that extended date before taking action to advance Mr Vogrin’s rights.
Considered overall, the delay was the product of forensic choices and largely avoidable error. Error and misjudgement by lay persons who choose to represent themselves is not unusual. These were unfortunate but not exceptional circumstances.
There being no exceptional circumstances, time for late lodgement of application C2024/8552 cannot be extended.
Being out of time, the application must be dismissed. An order giving effect to this decision is issued in conjunction with its publication.[23]
DEPUTY PRESIDENT
Appearances:
W. Vogrin, with R. Vogrin assisting, on his own behalf.
D. Hayes, with D. Guadagnin assisting, of and on behalf of, Collins Transport Group Pty Ltd.
Hearing details:
2025.
Adelaide (video);
16 January.
[1] [2020] FCAFC 152
[2] A1 Statement of Willem Vogrin
[3] A2 Statement of Raelene Vogrin
[4] A5 Termination letter 31 October 2024
[5] A5 paragraph 2
[6] A4
[7] A3
[8] Smith v Canning Division of General Practice[2009] AIRC 959
[9] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21]
[10] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[11] [2011] FWAFB 975 “Nulty, [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251, [5]
[12] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167, [6]
[13] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [30] and [36]
[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [35]-[45]
[15] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[16] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[17] A1 paragraph 6
[18] Section 18(4d) Return to Work Act 2014 (SA)
[19] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
[21] See for example Brahmbhatt v Sydney Tools Pty Ltd[2023] FWC 1874; Palmer v The Trustee for T & P Removals Unit Trust t/as Allied Business Relocations Adelaide[2024] FWC 707; Wei v Open Universities Australia Pty Ltd[2023] FWC 3402
[22] A2 paragraph 10
[23] PR783516
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