Oliver Zrnic v Girvan Group Pty Ltd
[2024] FWC 2728
•2 OCTOBER 2024
| [2024] FWC 2728 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Oliver Zrnic
v
Girvan Group Pty Ltd
(C2024/5643)
| DEPUTY PRESIDENT DEAN | CANBERRA, 2 OCTOBER 2024 |
Application to deal with contraventions involving dismissal – extension of time – extension granted.
This decision concerns an application made by Mr Oliver Zrnic (Applicant) pursuant to s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving his dismissal from Girvan Group Pty Ltd (Respondent).
Section 366(1) of the Act requires that a general protections application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).
The Applicant’s employment was terminated by letter of 20 June 2024. His general protections application, received by the Commission on 13 August 2024, was made 33 days outside the 21-day period prescribed by the Act and can only proceed if the Commission allows further time for the application to be made.
The application was listed for hearing on 1 October 2024 to consider whether further time should be allowed for the application to be made. The Applicant appeared and gave evidence on his own behalf and relied on a statutory declaration from his lawyer, Ms K Matosevic. Mr K Veloso appeared with permission for the Respondent, and Mr O Awad gave evidence on the Respondent’s behalf.
Extension of time
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the Act 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.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:
“[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.”
The onus of establishing exceptional circumstances lies with the Applicant, and the test of ‘exceptional circumstances’ establishes a high hurdle
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The Act does not specify what reason for the 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.[3]
As noted earlier, the Applicant was dismissed on 20 June 2024. He met with a lawyer, Ms Matosevic, on 29 June 2024 to discuss a claim for unfair dismissal. As he was uncertain about whether he was covered by an award, he requested a copy of his employment contract from the Respondent via email on three occasions between 1 and 2 July 2024. He received a reply from the Respondent’s Finance and Administration Manager to the effect that she did not have access to his employment contract and the Applicant should speak to Mr Awad, the Managing Director of the Respondent, when Mr Awad returned from leave after 15 July 2024.
On 10 July 2024 the Applicant lodged an unfair dismissal application with the Commission pursuant to s.394 of the Act. That application was lodged within the 21-day statutory timeframe which in his case ended on 11 July 2024.
On 8 August 2024 the Respondent filed its Form F3 response to the unfair dismissal application, which included a copy of the Applicant’s employment contract (the contract).
The contract includes a clause in the following terms:
“The governing award relevant to your employment with the Company is the Building and Construction General Onsite Award 2010 and is fully compliant with the National Employment Standards”.
In the Form F3, the Respondent raised a jurisdictional objection to the application on the basis that the Applicant earned above the high income threshold and was “an award free employee as he was not, despite the terms of his employment contract, covered by the Building and Construction On-site Award 2020 or any other modern award in his role as a Site Manager”.
In Ms Matosevic’s statutory declaration, she said that having received the Form F3 she amended her advice to the Applicant “once it was made clear the applicant was not covered by a modern award ...”.
The unfair dismissal application was then withdrawn and this application made concurrently on 13 August 2024.
The Respondent submitted that the Applicant’s (and his representatives’) uncertainty about award coverage and not having a copy of his employment contract was not exceptional, and ignorance or unfamiliarity of the Commission’s jurisdiction has generally been accepted by the Commission as insufficient to constitute exceptional circumstances, particularly where the Applicant had:
a. availed himself of legal advice;
b. not disputed he was aware of his position title, duties and remuneration; and
c. had access to a range of publicly available sources of information from which he could have obtained appropriate guidance in relation to award coverage.
The Respondent went on to submit that:
“In any event, even if the Applicant had access to his employment contract on the expiry of the 21-day time limit, it would not have assisted. The contract at clause 7, recorded the parties’ agreement, which is wrong at law, that the Building and Construction General Onsite Award 2010 governed the Applicant’s employment. It should have instead been apparent to the Applicant and his representatives, based on his job title, the knowledge of his duties, and his salary that he was an award-free employee earning above the high income threshold under section 382 of the FW Act.”
Having considered the matters raised, I am satisfied that the Applicant has made out an acceptable explanation for the delay in lodging this application.
It is clear from the evidence that it was the Respondent’s assertion in the Form F3 that the Applicant was not award covered which led to the Applicant withdrawing his unfair dismissal application and making this application.
Given there is often disputation about award coverage, and in circumstances where the contract specifically stated the Applicant was award covered, it is unreasonable to assert that it should have been ‘apparent’ to the Applicant that he was award free. I reject this submission.
In any event, the Respondent’s assertion as to award coverage was not tested, and so there is no assurance that their assertion is correct.
In my view it is an unusual and uncommon circumstance for an employer to make a representation in a contract of employment that the employee is covered by an award, then subsequently deny such coverage once an unfair dismissal application is made, having the effect of denying the employee access to the unfair dismissal jurisdiction.
The Respondent should not be advantaged by its representation in the contract that the Applicant was award covered, only to later resile from that statement. It was only because of the Respondent's conduct in asserting the Applicant was award free, despite the clear words in his contract to the contrary, that the Applicant withdrew his unfair dismissal application and made this application.
The reasons for the delay in lodging this application weigh in favour of the granting of an extension of time.
Any action taken by the person to dispute the dismissal
The Applicant made an unfair dismissal application within the statutory timeframe. This weighs in favour of the granting of an extension of time.
Prejudice to the employer
I do not consider that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I find this to be a neutral consideration.
The merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.
Both parties filed evidence in support of their respective claims about the Applicant’s dismissal. Whilst the Respondent accepted that the Applicant’s raising of safety concerns at the workplace would be a valid exercise of a workplace right under the general protections provisions of the Act, it led evidence denying that being a reason for the Applicant’s dismissal.
This case will turn on contested facts which cannot be resolved in this context. As such, I consider the merits to be a neutral consideration.
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 protections application. However, cases of this kind will generally turn on their own facts.
The Respondent pointed to various decisions of the Commission in which the Commission declined to exercise its discretion to extend time. I have considered those decisions, however as the Respondent properly conceded in oral submissions, they do not address the same factual circumstances as are before the Commission now, in that there was no representation by the employer as to award coverage.
I find this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account, and for the reasons already provided, I am satisfied that there are exceptional circumstances warranting my granting an extension of time. As a result, I will extend time for the Applicant’s application to proceed.
An order reflecting this decision is separately issued.
DEPUTY PRESIDENT
Appearances:
O Zrnic on his own behalf.
K Veloso of Kingston Reid for Girvan Group Pty Ltd.
Hearing details:
2024.
By Telephone:
October 1.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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