Shane Beggs v Login Systems Pty Ltd

[2013] FWC 5357

[2013] FWC 5357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Shane Beggs
v
Login Systems Pty Ltd
(C2013/4850)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 5 AUGUST 2013

Application to deal with contraventions involving dismissal - extension of time - exceptional circumstances - application dismissed.

[1] Mr Shane Beggs (Applicant) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Act) for it to deal with a general protections dispute. The application was lodged on 20 June 2013 and concerns an allegation of adverse action taken by Login Systems Pty Ltd (Respondent), being the dismissal of the Applicant on 22 June 2012 in contravention of sections 351 and 352 of the Act. As the application is made outside the prescribed period for making such applications, the Applicant asks the Commission to allow a further period in accordance with s.366(2) of the Act.

[2] For the following reasons I am not satisfied that there are exceptional circumstances for allowing the Applicant a further period in which to make the application under s.365 of the Act.

Background

[3] The Applicant first lodged an application with the Commission on 21 August 2012 to deal with a dispute in which he alleged that the termination of his employment was unlawful because the Respondent had contravened s.772 of the Act (Unlawful Termination Application). Question 7 on the Unlawful Termination Application provides:

“Section 723 provides that a person must not make an unlawful termination application in relation to conduct if the person is able to make a general protections court application in relation to the conduct (see Division 8 of Part 3–1). Do you consider that you cannot make a general protections court application?”

[4] The Applicant answered “yes” to the question. The Applicant was wrong in his answer. The purpose of question 7 is to alert the Applicant to the possibility that he may be barred from making the Unlawful Termination Application if he is able to make a general protections application under the Act. I will return to this point later in these reasons, but for present purposes I note that the Applicant was on notice that s.723 may prevent him from maintaining the Unlawful Termination Application.

[5] It is common ground that if the Unlawful Termination Application was validly made, it was made within the time limit then prescribed by s.774(1) of the Act. Solicitors acting for the Applicant gave “Notice of Representative Commencing to Act” on 17 September 2012. The Respondent had engaged solicitors to act in relation to the Unlawful Termination Application around 27 August 2012. Pursuant to s.776(1), the Commission conducted a conference to deal with the dispute on 8 November 2012. Following the conference the matter was adjourned to allow for further private discussion between the Applicant and Respondent. However the dispute was not resolved and on 13 March 2013 the Commission issued a certificate under s.777 of the Act. The Respondent did not raise any jurisdictional objection arising from the operation of s.723 whilst the matter was before the Commission. The Commission did not alert the Applicant to the error, nor it seems did it give consideration to whether it had jurisdiction to deal with the Unlawful Termination Application before it proceeded with the conference under s.776 and before it issued a certificate under s.777.

[6] On 27 March 2013 the Applicant commenced a proceeding in the Federal Magistrates Court (now Federal Circuit Court) (Unlawful Termination Court Application). By letter dated 8 April 2013 solicitors for the Respondent put the Applicant, through his solicitors, on notice that he was not entitled to commence the Unlawful Termination Court Application because he was a “national system employee” and therefore able to bring a general protections application, as s.723 presented a jurisdictional bar to the Unlawful Termination Court Application. The Respondent’s solicitors invited the Applicant to discontinue the Unlawful Termination Court Application. The Applicant could have discontinued the Unlawful Termination Court Application and then lodged an application with the Commission for it to deal with a general protections dispute. The Applicant would still have needed to persuade the Commission that he should be permitted a further period to the time prescribed to make such an application.

[7] The Applicant did not do this. Instead, some 10 days later, the Applicant’s solicitors wrote to the Respondent’s solicitors on 18 April 2013, conceding that s.723 presented a bar to the continuation of the Unlawful Termination Court Application. In the letter it is asserted that the original Unlawful Termination Application was made in error and that the Applicant should have made a general protections application. Furthermore, the letter suggests that to cure the error, consent of the Respondent is sought to amend the Unlawful Termination Court Application to plead the same facts but to allege that those facts as pleaded give rise to a contravention by the Respondent of s.351 and 352 of the Act instead of s.772. The amendment proposal was rejected in a letter from the Respondent’s solicitors dated 19 April 2013. In that letter the Applicant was again invited to discontinue the Unlawful Termination Court Application. At this point the Applicant could have discontinued the Unlawful Termination Court Application and then lodged an application with the Commission for it to deal with a general protections dispute. Again, the Applicant would have needed to persuade the Commission that it should allow a further period to make such an application.

[8] The Applicant did not do so. On 24 April 2013 the Respondent filed an application in the Federal Circuit Court to dismiss the Unlawful Termination Court Application on the ground that the court did not have jurisdiction to deal with the application by reason of s.723 of the Act. On 3 May 2013 the Applicant filed an application in a case in the Federal Circuit Court in which he sought to have the Unlawful Termination Court Application amended, or in the alternative be adjourned. to enable the Applicant to apply to the Commission under s.365, and subject to allowing the Applicant to bring such an application out of time, enabling it to conduct a conference and subsequently the issuing of a certificate under s.369 the Act.

[9] Both of these matters were dealt with in the Federal Circuit Court by her Honour Judge Riley on 11 June 2013. On 18 June 2013 her Honour dismissed the Unlawful Termination Court Application for want of jurisdiction and dismissed the Applicant’s application in a case 1. In doing so, her Honour did not deal with the precise scope of the jurisdictional bar in s.723 of the Act as the Applicant seems to have conceded that the Unlawful Termination Court Application is barred by that section2. This application was lodged on 20 June 2013.

Principles for allowing applications to be lodged outside the prescribed time limit

[10] The Applicant’s dismissal took effect on or about 22 June 2012. This application should have been made within 60 days after the dismissal took effect. The Commission may allow a further period 3. The discretion to allow a further period within which an application may be made will only be exercised if the Commission is first satisfied there are “exceptional circumstances”, taking into account4:

• The reason for the delay; and



• Any action taken by the person to dispute the dismissal; and



• Prejudice to the employer (including prejudice caused by the delay); and



• The merits of the application; and



• Fairness between the person and other persons in a position.

[11] It is clear, from the structure of s.366(2) of the Act that each of these matters be taken into account when assessing whether there exist “exceptional circumstances”.

Reason for the delay

[12] The Applicant submitted initially that there were two reasons for the delay 5. First he said that the Applicant was not aware until 8 April 2013 that he should have made a general protections rather than an unlawful termination claim. Secondly, after 8 April 2013, the Applicant was entitled to seek an amendment, or alternatively an adjournment, of his Unlawful Termination Court Application. During the hearing of the application for an extension of time, I gave leave to the Applicant to consider whether he relied upon representative error as a reason for the delay, and if so to file any further submissions on that question by midday 15 July 20136. The Respondent was given leave to file any submissions in reply on that question by midday 18 July 20137.

[13] On 15 July 2013, the Applicant filed an affidavit of Barbara Ann Kramer sworn on 15 July 2013, the solicitor having care and conduct of matters for the Applicant, in which she deposes to the nature of a representative error in connection with the application 8. Consequently the Applicant also relies on representative error, as set out in the affidavit, as a reason for delay.

[14] The Respondent submits that the first reason for the delay identified by the Applicant falls into the category of an ordinary mistake made in the form of the application filed by the Applicant and is not an exceptional circumstance. As to the second reason, the Respondent submits that this shows no more than the Applicant making a decision to pursue a particular course by making a further interlocutory application in relation to the Unlawful Termination Court Application even though he was on notice that that application was flawed.

[15] As to the third reason advanced by the Applicant, that of representative error, the Respondent submits that there was no active step taken by the solicitor for the Applicant which would fall within the description of a representative error. All that occurred was that the Applicant’s solicitors were “going along” with the Applicant’s decision to issue and prosecute the Unlawful Termination Court Application. Further, to the extent that the Applicant suggests that the decision to prosecute the interlocutory application before the Federal Circuit Court together with any prospects advice that he may have received amounts to representative error, the Respondent submitted that there is no clear evidence about the nature of any advice given and in any event would not fall within the description of “representative error” and therefore is not an exceptional circumstance.

[16] Although the Applicant and the Respondent suggested that the delay should be examined in two periods, it is my view more convenient and accurate to examine the reasons advanced for the delay by reference to the three periods identified below.

(a) 22 June 2012 to 8 April 2013

[17] During this period:

• the Applicant lodged an Unlawful Termination Application, which if validly made, was made within the time limit then prescribed by s.774(1) of the Act;



• the Commission conducted a conference to deal with the dispute on 8 November 2012;



• the matter was adjourned to allow for further private discussion between the Applicant and Respondent, however the dispute was not resolved;



• the Commission issued a certificate under s.777 of the Act on 13 March 2013;



• the Applicant commenced the Unlawful Termination Court Application on 27 March 2013;



• on 8 April 2013 solicitors for the Respondent put the Applicant’s solicitors on notice that the Applicant was not entitled to commence the Unlawful Termination Court Application by reason of s.723. The Applicant was invited to discontinue the Unlawful Termination Court Application.

[18] As I noted earlier above, the Respondent did not raise any jurisdictional objection arising from the operation of s.723, whilst the matter was before the Commission. This may indicate that both parties operated under a common misunderstanding that the application made to the Commission was valid, or it may indicate that for strategic reasons, the Respondent chose not to raise the point. It is unnecessary for me to decide this issue and I do not take the reason that the Respondent did not raise the matter into account. The Applicant explains this period of delay in two ways. First, he had made a mistake in lodging an unlawful termination claim instead of a general protections claim. Secondly, it is implicit in the affidavit of Barbara Ann Kramer that representative error is given as a reason for delay for the period 12 September 2012 until 8 April 2013 9.

[19] I accept the Applicant’s explanation that he made the unlawful termination claim in error and that this satisfactorily explains part of the delay during this period. The general protections and unlawful termination provisions of the Act and their interaction are not uncomplicated and it is unsurprising that an unrepresented person would make the mistake that the Applicant made 10.

[20] Furthermore I accept that there has been representative error which explains some of the delay during this period, namely the failure by the Applicant’s solicitors to consider and properly examine the validity of the unlawful termination claim made by the Applicant. This kind of error is one for which the Applicant is blameless and for which he should not be held responsible 11.

[21] Finally, in my view the role of the Commission in the delay should properly be considered. It should have considered whether it had jurisdiction to deal with the unlawful termination application before it proceeded with the conference under s.776 and before it issued a certificate under s.777. Once the Applicant had received the certificate he had no reason to question the validity of his application and was, in my view entitled to assume that it had been validly made and that the certificate entitled him to pursue his Unlawful Termination Court Application. This is also an error for which the Applicant cannot be held responsible. It is an institutional error, which in my view, is a reasonable explanation for some of the delay.

[22] The making of the General Protections Court Application, was in my view brought about by a combination of representative and institutional error. Representative error in the sense that the Applicant’s solicitors failed to properly consider the jurisdictional foundation on which the application was made and relied upon the institutional error which saw a certificate under s.777 issued, when there was arguably no jurisdictional basis to do so.

[23] In all of the circumstances, I am therefore satisfied that the combination of reasons for the delay discussed above form an acceptable explanation for which the Applicant should not be held responsible.

(b) 8 April 2013 to 23 April 2013

[24] Following the receipt of the letter of 8 April 2013 from the Respondent’s solicitors, the Applicant could have discontinued the Unlawful Termination Court Application and then lodged an application with the Commission for it to deal with a general protections dispute. The Applicant would still have needed to persuade the Commission that it should permit a further period within which to make the application, but for the reasons given above, he would have been much better placed then to have successfully done so.

[25] The Applicant did not do this. Instead during this period:

• the Applicant’s solicitors wrote to the Respondent’s solicitors on 18 April 2013 conceding that s.723 presented a bar to the continuation of the Unlawful Termination Court Application. In the letter the Applicant’s solicitors proposed that to cure the error, consent of the Respondent was sought to amend the Unlawful Termination Court Application to plead the same facts but to allege that those facts as pleaded give rise to a contravention by the Respondent of s.351 and 352 of the Act instead of s.772;



• the amendment proposal was rejected by letter dated 19 April 2013, and the Applicant was again invited to discontinue the Unlawful Termination Court Application.

[26] In the circumstances described above there is no evidence which explains why the solicitors for the Applicant waited 10 days to respond to the letter of 8 April 2013. There is an oblique reference in an affidavit of Barbara Ann Kramer sworn on 2 May 2013 and filed in the Federal Circuit Court, to receiving instructions from the Applicant and I note that Ms Kramer also deposes to the fact that the 8 April 2013 letter requested a response by 4.30 pm on 18 April 2013 12 but nothing else is offered to explain this delay. As to the explanations given, I find difficulty accepting the apparent slow pace with which the Applicant’s solicitors acted in formulating a response. In any event Ms Kramer seems not to have properly read the letter of 8 April 2013 because the letter does not give the Applicant a leisurely timeframe of 10 days within which to provide a “response”, rather the letter demands action in the form of a discontinuation of the Unlawful Termination Court Application by 4.30 pm on Friday, 18 April 201313.

[27] I am however prepared to infer that during this period the Applicant through his solicitors sought advice from counsel, received and considered that advice and as a consequence gave instructions to his solicitors to respond in the manner they did on 18 April 2013. Given all that preceded the letter of 8 April 2013, and on that date becoming aware for the first time that the Unlawful Termination Court Application might be seriously flawed, it is not, in my view, unreasonable to take some time to consider a response. In the circumstances I am satisfied that this period of delayed is satisfactorily explained by that reason, and that the Applicant should not be held responsible for that short additional period of delay.

(c) 20 April 2013 to 20 June 2013

[28] By its letter of 19 April 2013 the Respondent’s solicitors note that the proposal of the Applicant in its correspondence of 18 April 2013 would not cure the defect identified by the Respondent and again invite the Applicant to discontinue the Unlawful Termination Court Application, this time by 4.30 pm on Monday 22 April 2013, otherwise the Respondent will move to have that application dismissed 14. Again, at this point, the Applicant could have discontinued the Unlawful Termination Court Application and then lodged an application with the Commission for it to deal with a general protections dispute. Again, the Applicant would have needed to persuade the Commission that it should allow a further period within which to make an application, but in my view, for the reasons given above, he would have been better placed then to have successfully done so.

[29] The Applicant did not do so. Instead during this period:

• on 22 April 2013, during a telephone conversation between Ms Kramer and Ms Warren, Ms Kramer advised Ms Warren that the Applicant would be seeking leave of the Court to amend his Unlawful Termination Court Application and Ms Warren reiterated the Respondent’s position that the proposed amendment would not cure the defect 15;

the Respondent filed an application in the Federal Circuit Court on 24 April 2013 to dismiss the Unlawful Termination Court Application;

• the Applicant filed an application in a case in the Federal Circuit Court on 3 May 2013 seeking to amend, or in the alternative adjourn, the Unlawful Termination Court Application;



• these matters were dealt with in the Federal Circuit Court on 11 June 2013. On 18 June 2013 the Court dismissed the Unlawful Termination Court Application for want of jurisdiction and dismissed the Applicant’s application in a case 16;

the Applicant lodged a general protections application under s.365 on 20 June 2013.

[30] The Applicant submits that the delay during this period is explained because he was entitled to seek an amendment or alternatively an adjournment of his Unlawful Termination Court Application 17. This argument is somewhat circular since the Federal Circuit Court dismissed his application for amendment and adjournment and, as it was central to the court’s decision, that it did not have jurisdiction, it cannot be said that the Applicant had any “entitlement” to make the interlocutory application that he did as the principal application was flawed. I therefore take this submission as more properly described as the Applicant believing that he was entitled to make such an application and had some prospects of success.

[31] The Applicant says that during this period he was doing no more than pursuing his legal rights through a valid and arguable Federal Circuit Court Application and that any delay engendered in pursuing this right should not prejudice his current application for an extension of time 18. The Applicant says that his argument for an amendment or an adjournment of his Unlawful Termination Court Application was of substance and not without merit. He relied on a Federal Court of Australia authority19 but ultimately the court preferred more recent Federal Magistrates Court of Australia authority in Pitrau v Barrick Mining Services Pty Ltd (Pitrau)20 in dismissing the Unlawful Termination Court Application and declining to amend or adjourn. The Applicant noted that ultimately the Applicant in Pitrau made application under s.365 after the Federal Magistrates Court had dismissed her Unlawful Termination Court Application and was granted an extended period in which to make the s.365 application21.

[32] The Applicant does not rely on representative error to explain this period of delay even though this seems to have been the foundation for the grant of an extension of time to the Applicant in Pitrau, nor does the affidavit material filed in support of representative error, assert, deal with or explain any errors that were made by solicitors for the Applicant or his Counsel during this period 22. There is, therefore, neither evidence of, nor an assertion that, the delay during his period was occasioned by representative error. Rather, the Applicant and his solicitors well knew on 8 April 2013 or shortly thereafter that the Unlawful Termination Court Application may be seriously flawed. By 18 April 2013 the Applicant and his solicitors accepted that this was the case23. During this time, solicitors for the Applicant sought instructions and engaged Counsel to advise him on the best course in the circumstances24. The instructions of the Applicant were to proceed in the manner set out in the letter to the Respondent’s solicitors dated 18 April 2013.

[33] Despite the reply received from the Respondent’s solicitors of 19 April 2013 and the subsequent interlocutory application to have the Unlawful Termination Court Application dismissed for want of jurisdiction, the Applicant proceeded on the course outlined in its correspondence dated 18 April 2013. The Applicant, no doubt acting on advice, most likely believed this was the best course available to him. There is no evidence about the precise nature of the advice given to the Applicant, the options discussed with the Applicant or the view taken by his solicitors or Counsel as to the prospects of success of the course set out on 18 April 2013. But it may be inferred, based upon the evidence and his submissions before me, that the Applicant was of the view that the argument that was to be put to the Federal Circuit Court was of substance and had merit 25.

[34] The evidence and submissions made by the Applicant show that the reason for the delay during this period was that the Applicant had formed a view that he had a legitimate legal right to pursue the course he chose and that the prospects of succeeding in an application to amend or adjourn his Unlawful Termination Court Application were at least reasonable. At the very least, as a reason for delay during this period the reason for the delay was the Applicant had formed the view, acting on advice, that seeking an amendment or adjournment of his Unlawful Termination Court Application was an option.

[35] The evidence, and indeed the submissions of the Applicant, do not support a conclusion of representative error as a reason for delay during this period. Absent clear evidence about the nature of the representative error, or at least a concession by the Applicant’s legal representatives to that effect, it would be wrong to infer the existence of such an error from the material before me, and I do not do so. Rather the evidence leads to a conclusion that a decision to pursue the course of action was a judgement made by the Applicant, doubtless on advice. Ultimately it was the Applicant, albeit acting on advice, who gave instructions to pursue the course that was ultimately pursued. He is not blameless, in the sense that he gave over the matter to his solicitors and expected them to carry out his instructions, but they failed to do so. Here instructions were to do the very thing that was done. It proved to be unsuccessful. But in my view it would be unsound to infer that judgements made during the course of litigation between two competing options, one of which ultimately turns out to be unsuccessful, amount to representative error of a kind that would give rise to exceptional circumstances.

[36] As I indicated above, the Applicant points to decision in Pitrau v Barrick Mining Services Pty Ltd 26 and says that in similar circumstances to those faced by the Applicant, Deputy President McCarthy granted Ms Pitrau an extension of time to lodge a s.365 application. So far as is relevant the Deputy President attributed some of the delay following the identification of the jurisdictional flaw to representative error. However there are a number of significant factual differences between the case before the Deputy President and this matter. First, the jurisdictional flaw was not identified until much later in the process of the Unlawful Termination Court Application, namely at the first directions hearing. It was at that juncture that Ms Pitrau’s solicitors first became aware of the flaw and gave evidence that they were not aware that the error in making the Unlawful Termination Court Application would be fatal. Indeed the evidence given was that the Federal Magistrate indicated during the directions hearing that the court may be able to provide leave to amend the application if such an application is made and that the assessment to proceed with the application for amendment was made based on this indication. None of these circumstances are present in this case and the outcome of the decision in Pitrau was known, or at least should have been known to the Applicant when he made the Unlawful Termination Court Application and made interlocutory application for amendment or adjournment. The Applicant was certainly aware of a decision of the Federal Magistrates Court in Adam v Apple27 which did not assist his case, as it was cited and sought to be distinguished in the Applicant’s outline of submissions before the Federal Circuit Court28. Therefore, to the extent that it is necessary for me to distinguish the decision of Deputy President McCarthy, I do so for the reasons given above.

[37] On the evidence before me I am not satisfied that there was representative error explaining the delay during this period and I find that the reason for the delay as submitted by the Applicant amounts to no more than the Applicant choosing what ultimately proved to be an undesirable course instead of discontinuing his Unlawful Termination Court Application and making the application to this Commission as soon as practicable after 19 April 2013. In my view this is not an adequate or satisfactory explanation that would enliven exceptional circumstances.

[38] However the reason for the delay is not the only consideration that I must take into account.

Any action taken by the Applicant to dispute the dismissal

[39] Quite properly the Respondent accepted that the Applicant hotly disputed the dismissal and indeed both parties continue to do so 29. The Applicant’s filing of the unlawful termination claim within the statutory period is a step or action taken by him to dispute the dismissal. Likewise the steps taken since in attending a conference, making Unlawful Termination Court Application and pursuing an application to amend or adjourn are all in my view, to be regarded as action taken to dispute or connected with the Applicant’s disputing of his dismissal. Given the history of the litigation of the unlawful termination claim before making this application I am satisfied that the Applicant disputed and continues to dispute the dismissal. This consideration therefore favours the Applicant.

Prejudice to the employer (including prejudice caused by the delay)

[40] The Applicant submits that the Respondent has not and will not suffer any prejudice; at least not such a degree of prejudice as would warrant the Commission not allowing a further period within which the Applicant could make his s.365 application. Specifically the Applicant says that the Respondent has been aware of the Applicant’s challenge to his dismissal and the basis of this challenge. Further to the extent that the Respondent has incurred costs in connection with the Unlawful Termination Court Application, the Respondent has applied for costs in that matter which application will be heard on 23 October 2013. This last matter concerning costs incurred by the Respondent in another proceeding is, in my view, not relevant to deciding what prejudice if any is suffered by the employer.

[41] True it is that the Respondent has been aware of the Applicant challenging his dismissal and the basis for doing so. But this is not the only factor going to the issue of prejudice to the employer. There is the obvious issue that it has been more than 12 months since the Applicant was dismissed and the memories of any prospective witnesses will tend to fade. That said, other than the possible effect on memories of prospective witnesses, the Respondent did not point to any particular prejudice the employer might suffer and led no evidence of prejudice. I am not persuaded that the prospect of fading memories, without more, is a sufficient basis to conclude that there will be prejudice to the employer of a significant kind which would militate against the grant of an extension of time. Absent of any evidence of any real or actual prejudice to the employer, I am satisfied that such absence favours the Applicant.

The merits of the application

[42] The Applicant alleges that the Respondent took adverse action in the form of dismissal because of a physical disability, namely an injury initially diagnosed as paraplegia, which was subsequently diagnosed as being amenable to full recovery following rehabilitation 30. Alternatively or in addition, the Applicant alleges that he was dismissed because of a temporary absence from work because of the injury31. The Respondent disputes the reasons as alleged as founding the reason for the dismissal and in any event says that it will rely upon the defence available for the first of these allegations, namely that the dismissal action was taken because of the inherent requirements of the position occupied by the Applicant32.

[43] I do not need to be satisfied that the merits of the application are strongly arguable. Indeed, without embarking upon a full or substantial evidentiary hearing about the merits, it would be difficult to come to such a conclusion. There is little doubt that the Applicant was suffering from a physical disability within the meaning of s.351 of the Act at the time of his dismissal. Likewise there seems little doubt that the Applicant was temporarily absent from work on account of his injury within the meaning of s.352 of the Act at the time of his dismissal. The central question will be the reason for the dismissal. Based on the content of the letter of termination given to the Applicant 33, it is plainly arguable that a reason for the dismissal is the Applicant’s injury. Based on the same letter it is also arguable that the Respondent took the decision to dismiss the Applicant because the Applicant could not fulfil the inherent requirements of the position into which he was employed. Ultimately there will be mixed questions of fact and law requiring determination should this application proceed to a trial. For present purposes, as there is no evidence before me other than the letter of termination, about the reason for the Respondent’s decision to dismiss the Applicant, and taking into account the presumption in s.361 attaching to such applications, I am satisfied that having regard to the material before me the Applicant’s application is tenable and is not without merit. This consideration therefore favours the Applicant.

Fairness as between the person and other persons in a like position

[44] The Applicant submitted that this consideration is not relevant in this matter. I disagree. The consideration is designed, at least in part, to ensure that Applicants for an extension of time faced with substantially similar circumstances are treated consistently by the Commission 34.

[45] There are a number of cases in which applicants in general protections matters have been granted an extension of time after having first made an application under the unlawful termination provisions of the Act 35 but each of these decisions have turned on their own particular factual circumstances and have largely proceeded on the basis that there has been representative error as a reason for delay. Deputy President McCarthy’s decision in Pitrau v Barrick Mining Services Pty Ltd36 is the closest one comes to factual circumstances similar to those faced by the Applicant. But as I have pointed out earlier above that decision is distinguishable.

[46] Significantly the Applicant’s solicitor, Ms Leedman, gave evidence that when she became aware of the flaw she was not aware that the error in making the Unlawful Termination Court Application would be fatal. Further, the Federal Magistrate indicated during the directions hearing that the court may be able to provide leave to amend the application if such an application is made. Finally the solicitor’s assessment to proceed with the application was made based on this indication. Since at least 18 April 2013 the Applicant and his solicitors were aware of the consequences of the jurisdictional flaw in the Applicant’s Unlawful Termination Court Application. There is no hint of encouragement from the judicial member dealing with the Unlawful Termination Court Application and there is a decision to proceed with the interlocutory application in the face of conflicting, but relevantly, unhelpful authority to the Applicant. The Applicant’s solicitors were aware of such authority 37. I am satisfied therefore that a decision not to grant an extension of time would not result in unfairness as between the Applicant and other persons in a like position. In these circumstances this consideration favours the Respondent.

Conclusion

[47] This is a case that is finely balanced but ultimately I have come to the conclusion that the balance is in favour of the Respondent. Taking into account all of the matters set out in s.366(2) I am not satisfied that in this case there are exceptional circumstances. Consequently the application is dismissed.

[48] As a postscript, during the oral argument I expressed a reservation as to whether s.723 of the Act presented a bar to bringing the Unlawful Termination Court Application because such a bar only operated if a person was entitled to make a “General Protections Court Application”, that phrase carrying a particular meaning ascribed to it by s.12 and s.370(2). Section 371 makes clear that a person must not make, and therefore arguably does not have an entitlement to make, a General Protections Court Application until the person has a certificate issued in accordance with s.369 unless the person is also seeking an interim injunction. When the Applicant lodged the Unlawful Termination Court Application there was no certificate issued under s.369, therefore on one view, the Applicant was not entitled to make a General Protections Court Application.

[49] The different constitutional underpinnings of the general protections provisions and the unlawful termination provisions of the Act and the intention, at least as expressed in the Explanatory Memorandum to the Fair Work Bill 2008 38, is suggestive of a construction that s.723 was intended to operate as a bar to making an unlawful termination application under Part 6–4 if a person was entitled to make an application under the general protections provisions of Part 3–1 in relation to a dismissal, but the words of the statute seem more narrow. They are confined to a “General Protections Court Application” and not more broadly. It seemed to be accepted by the parties during the Federal Circuit Court proceedings that the bar in s.723 operated in the broad manner described above. I have found it unnecessary to express a view about the correctness of that construction in determining this application.

DEPUTY PRESIDENT

Appearances:

J. Hooper of Counsel for S. Beggs.

T. Donaghey of Counsel for Login Systems Pty Ltd.

Hearing details:

2013.

Melbourne:

July 10.

 1   Beggs v Login Systems Pty Ltd [2013] FCCA 526

 2   Beggs v Login Systems Pty Ltd [2013] FCCA 526 at [3]

 3 Section 366(1) of the Act as in force prior to 1 January 2013. The current time within which such applications are to be made is 21 days after the dismissal took effect, however by reason of Part 5, Item 9 of the Fair Work Amendment Act 2012, the 21 day time limit applies only in relation to the dismissal if it took effect after the commencement of the time limit amendment, being 1 January 2013.

 4   Section 366(2) of the Act as in force prior to 1 January 2013.

 5   Applicant's Outline of Submissions at [24]

 6   Transcript PN 229 – PN 232, PN 334

 7   Transcript PN 232, PN 334

 8   Affidavit of Barbara Ann Kramer, 15 July 2013 at [5]

 9   Affidavit of Barbara Ann Kramer, 15 July 2013 at [5]

 10   see Trudgett v Training Aids Australia Pty Ltd[2010] FWA 2235 at [17]; De La Rue v The Better Image Group International Pty Ltd[2011] FWA 5453 at [12]

 11   De La Rue v The Better Image Group International Pty Ltd[2011] FWA 5453 at [14]

 12   Affidavit of Barbara Ann Kramer, 2 May 2013 at [10]; Affidavit of Barbara Ann Kramer, 15 July 2013 at [5] and [6]

 13   Annexure MHW – 4 to the Affidavit of Meghan Holtham Warren affirmed on 24 April 2013

 14   Annexure MHW – 6 to the Affidavit of Meghan Holtham Warren affirmed on 24 April 2013

 15   Affidavit of Meghan Holtham Warren affirmed on 24 April 2013 at [20]

 16   Beggs v Login Systems Pty Ltd [2013] FCCA 526

 17   Applicant's Outline of Submissions at [24]

 18   Applicant's Outline of Submissions at [28]

 19   See Newman v East Yarra Friendly Society Pty Ltd t/a My Chemist Pharmacy [2011] FCA 1262

 20 (2012) 259 FLR 447

 21   See Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363

 22   Affidavit of Barbara Ann Kramer, 15 July 2013 at [5] -[8]

 23   Exhibit MW3 to the Statement of Meghan Warren, 10 July 2013

 24   Affidavit of Barbara Ann Kramer, 15 July 2013 at [6]

 25   See Applicant's Outline of Submissions at [28]

 26   [2012] FWA 8363

 27 [2012] FMCA 881

 28   Applicant's Outline of Submissions relied on in the Federal Circuit Court at [45] – [51]

 29   Transcript PN 260

 30   Section 351

 31   Section 352

 32   Section 351(2)(b)

 33   Exhibit A2

 34   The judicial history of the consideration upon which the current provision in s.366(2)(e) is modelled was briefly discussed by Senior Deputy President Richards in Wilson v Woolworths[2010] FWA 2840

 35   see for example Trudgett v Training Aids Australia Pty Ltd[2010] FWA 2235; Aitken v Virgin Blue Airlines Pty Ltd and Vendeven v Virgin Blue Airlines Pty Ltd[2010] FWA 9883; De La Rue v The Better Image Group International Pty Ltd[2011] FWA 5453; Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; Paxman v Boorowa Council[2012] FWA 7266; Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363

 36   [2012] FWA 8363

 37   see Adam v Apple [2012] FMCA 881

 38   see [2702]

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