Peter Bridge v Columbia Aged Care Strathdale
[2025] FWC 563
•25 FEBRUARY 2025
| [2025] FWC 563 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Peter Bridge
v
Columbia Aged Care Strathdale & Ors
(C2024/9151)
| COMMISSIONER MCKINNON | SYDNEY, 25 FEBRUARY 2025 |
Application to deal with a general protections dismissal dispute – late application – whether extension of time should be allowed
Mr Peter Bridge was employed as a Facilities Services Manager by Columbia Nursing Homes Pty Ltd trading as Columbia Aged Care Strathdale (CNH) from 1 July 2024 until 25 November 2024. On 17 December 2024, Mr Bridge applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). Mr Bridge alleges that he was dismissed by CNH in contravention of the general protections in connection with complaints made during his employment. He also alleges discrimination on the grounds of sexual orientation and gender identity and that his employment was a sham because he was employed to cover a maternity leave position but on a permanent basis. CNH objects to the application on the basis that the application is filed out of time. The application is 1 day late.
This decision is about whether additional time can and should be allowed for the application to be made. For the reasons that follow, I am not satisfied that there are exceptional circumstances of relevance to the late filing of the application. No additional time for the application can be allowed. The application will instead be dismissed.
Consideration
An application under s.365 of the Act must ordinarily be filed within 21 days of dismissal. The Commission can extend the filing period if there are exceptional circumstances (s.366(1)(b)) after taking into account the following matters set out in s.366(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.”
These are considered in turn as they relate to Mr Bridge’s application.
Reason for delay: The reason for delay was a simple calculation error. Mr Bridge knew of his dismissal on the day that it took effect (on 25 November 2024). The following day, on 26 November 2024, he called the Commission about making an unfair dismissal application. He was told that he may be ineligible because he had not completed the minimum employment period and given information about the option of a general protections dismissal dispute. Mr Bridge was advised that there was a 21‑day filing period for general protections dismissal disputes, starting from the day after his dismissal.
Mr Bridge found a time calculator on Google. Using the calculator, he calculated the 21‑day period as ending on 17 December 2024. From that time on, Mr Bridge understood that he had until 17 December 2024 to apply to the Commission within the relevant filing period. He did not realise that the date he had calculated was wrong. The period of 21 days after the dismissal took effect ended 16 December 2024.
Mr Bridge also submits that the Commission’s online form for lodging his general protections dismissal dispute did not prevent him from applying outside of the 21‑day period, and that the effective date of dismissal may have been one week later than 25 November 2024 because he was paid one week’s wages in lieu of notice. This second contention is misconceived. The effective date of dismissal was 25 November 2024 as notified to Mr Bridge verbally and confirmed in writing on that day.
Action to dispute the dismissal: Mr Bridge wrote to CNH on 27 November 2024 about his dismissal. In short form, the email was headed ‘Notice of Wrongful Termination Advice’. It set out his concerns and request for clarification on the reason(s) for dismissal. It foreshadowed shortly filing a general protections claim, a separate sexual harassment claim and that he had lodged a claim with the Australian Human Rights Commission. In the email, he referred to the 21 days starting from “today”. While on face value that would seem to be a reference to 27 November 2024, another possibility is that it was a reference to 25 or 26 November 2024 because the content of the email indicates that Mr Bridge had started drafting the email on the date of termination and made further edits the following day. CNH responded to the email approximately 20 minutes later to acknowledge receipt and say that it awaited “the correspondence from Fair Work as you have outlined”.
Rather than taking the steps he had foreshadowed, Mr Bridge waited until 5.00pm on 17 December 2024 for CNH to provide him with a more fulsome response to his email of 27 November 2024. He was hoping that his concerns could be resolved and that he would not need to file a claim. But there was no reason to believe that CNH was going to respond as he had hoped. It had already responded to his email, advising Mr Bridge that it awaited correspondence from “Fair Work”.
Prejudice to the employer: I am not satisfied that there is any prejudice to CNH if the application is allowed to proceed one day later than would ordinarily be required. CNH knew from the day after dismissal that Mr Bridge held concerns about the reasons for dismissal. It has incurred some time and costs in responding to the claim but the choice to engage lawyers is its own. I do not agree that on its face, the application could safely be characterised as being without merit.
Merits: There is a significant dispute about the reasons for dismissal including whether performance concerns had previously been raised with Mr Bridge and whether these were the reasons for dismissal. There is also a question about whether the dismissal is said to be unlawful, as opposed to unfair. The merits could only be properly assessed on a hearing of the application.
Fairness as between Mr Bridge and another person in a like position is not a relevant consideration in this case. Mr Bridge is not aware of the circumstances pertaining to the dismissal of some of CNH’s other employees after his own dismissal. CNH distinguishes the dismissal of Mr Bridge (as within his probationary period) from the dismissals of other employees.
Conclusion
I am not satisfied that there are exceptional circumstances in this case in connection with the late filing of the application. Mr Bridge made a calculation error. He was not, as has been suggested, relying on wrong information provided to him by the Commission. The information he was given was correct. Neither mistakes in the counting of days, nor ignorance of the law, are exceptional circumstances.
After realising he was ineligible for an unfair dismissal application, Mr Bridge decided to make a general protections application instead. He wrote to CNH hoping to elicit a response that would meet his needs, but it did not come. And in the meantime, Mr Bridge waited until what he thought was the proverbial ‘last minute’ before filing his claim. This was well-meaning and considered, but unwise. It allowed no room for error.
Although there is no relevant prejudice to CNH if the application is allowed to proceed, the merits weigh neutrally because of the complex factual and legal matrix upon which they rely. And no issue of fairness as between Mr Bridge and others arises. No other matters raised by Mr Bridge support a conclusion of exceptional circumstances or an extension of time. Mr Bridge made reference to a separate worker’s compensation claim which would have no bearing on whether this application should be allowed to proceed.
In the absence of exceptional circumstances, no additional time can be allowed for Mr Bridge to make his application. The result is that the application was not filed within 21 days after the dismissal took effect and was not made in accordance with the Act.
Order
The application is dismissed under s.587(1)(a) of the Act.
COMMISSIONER
Hearing details
Sydney via Microsoft Teams.
February 24.
P Bridge on his own behalf.
M Xue of Russell Kennedy for the respondent.
Printed by authority of the Commonwealth Government Printer
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