Simon Pankhurst v Action Industrial Catering Pty Ltd
[2023] FWC 3105
•27 NOVEMBER 2023
| [2023] FWC 3105 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Simon Pankhurst
v
Action Industrial Catering Pty Ltd
(C2023/5997)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 27 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal; incomplete application; blank application; blank application – not an application that has been ‘made’.
Issues and outcome
Mr Simon Pankhurst (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act).
Whilst the Applicant appears to have emailed an application under s 365 of the Act to the Commission on 27 September 2023, the document that was attached to the Applicant’s email was a blank document. Consequently, Registry staff of the Commission emailed the Applicant on that same day, advising:
The Fair Work Commission received the attached email from you on 27 September 2023.
There was not a completed application form attached to your email as the attached file was blank.
The Fair Work Commission can only start dealing with a case after we receive a completed application on an approved form (as per Rule 14 of the Fair Work Commission Rules 2013).
To make an application to the Commission you need to complete the relevant form and lodge it by email, fax or by post.
There are strict time limits for some application types. Some applications are dismissed if they aren’t lodged within the time limits.
You can contact us for help by return email or on 1300 799 675.
Kind regards
On 28 September 2023, the Applicant emailed the Commission a Form F8 – General protections application involving dismissal. The Applicant submitted that his original email to the Commission followed by the chain of emails to the Commission, show that his application was in fact filed in time. Further, the Applicant claims that he was notified of his dismissal on 6 September 2023 and it took effect on 13 September 2023.
The Respondent, Action Industrial Catering Pty Ltd, argues that the application was made on 28 September 2023, the Applicant’s dismissal took effect on 6 September 2023,[1] and the application was therefore filed one day outside of the statutory period prescribed by s 366(1)(a) of the Act.
The Act sets the requirement that this type of application is to be made within 21 days after the dismissal took effect[2] or within such further period as the Commission allows.[3] If it were the case that the Applicant’s dismissal took effect on 6 September 2023 as claimed by the Respondent, then the 21-day period to file a general protections application in relation to this dismissal expired at midnight Australian Western Standard Time (AWST) on 27 September 2023.
Prior to the hearing, directions were issued to the parties concerning the issues of the date of dismissal and that the application may have been made out of time. Neither party filed witness statements and at hearing, the Applicant was permitted to provide viva voce evidence. The Respondent decided not to call any witnesses.
Briefly stated, I have found that the Applicant was dismissed on 6 September 2023. Whilst the Applicant’s application was made one day outside of the statutory period, having considered the factors in s 366(2) of the Act, I have found that the circumstances are exceptional, and I consider it fair and equitable that time should be extended.
Background
The broader context and events leading to the conclusion of the employment were as follows.
The Applicant began working for the Respondent on 10 August 2023.[4]
The Respondent submits that on 28 August 2023, it emailed the Applicant, requesting he provide his contact information as the contact number he had provided to the Respondent was unanswered.[5]
As there was purportedly no response from the Applicant, the Respondent emailed the Applicant a letter on that same day, informing him that there were recent incidents involving him and he was to stand down from duties with payment and requested to respond.[6]
The Applicant responded to the Respondent on 30 August 2023 in the following terms:[7]
Hi Nathan,
I have only just picked up your email. I’m extremely confused as this point. Please explain, does this mean you don’t want me to fly back tomorrow?
Regards,
Simon
Later in the day on 30 August 2023, Mr Nathan Richards, Business Partner, People & Culture, confirmed that the Applicant would not be required to fly (to site).[8]
At hearing, the Applicant gave oral evidence that he was hospitalised because of stress in the first week of September 2023. The Applicant submitted a medical certificate from Royal Perth Hospital dated 4 September 2023 that noted that he attended the hospital on 4 September 2023. The medical certificate further stated that the Applicant was unfit for nine days, albeit it did not clarify whether the Applicant was an inpatient or an outpatient during that period.[9]
The Respondent submitted that on 6 September 2023, it wrote to the Applicant informing him of the termination of his employment effective as of that same day.[10] The email stated:
Hello Simon,
Following review of your performance in your role as Line Chef, I must inform you that a decision has been made to terminate your employment with notice.
I would like to wish you all the best in future endeavours.
The letter of termination stated, amongst other things, that:
…This letter serves to inform you that Civeo has decided not to continue your employment beyond your probationary period. As a result, your employment will end on 6th September 2023.
The company will satisfy your statutory entitlements including for 1 weeks’ notice in lieu, unused leave, and requisite superannuation contributions.[11]
According to the Respondent, on 7 September 2023, following the termination of the Applicant’s employment, the Applicant emailed a medical certificate (as referred to in paragraph [14]) retrospective from 4 September 2023, certifying that he was unfit for nine days.[12] The email from the Applicant dated 7 September 2023 stated:
…I have only just received this email as I have been recovering from a medical incident which happened on Monday (4/9/2024), please see attached document. I take sick pay due to this will be included in my final pay. I have yet to receive a payslip from Civeo so I take it one will be included with my final remuneration. This news has come as quite a shock. Can I please have an explanation so that I can learn from the experience. Finally there is some personal belongings that I left onsite how do I get these back?
Regards,
Simon[13]
From the time of his dismissal until the filing of a document with the Commission on 27 September 2023, the Applicant states that he read Australian legislation and familiarised himself with the law as he is not from this country, he sought advice from Circle Green (a community legal centre), and he was careful not to get overstressed as his hospitalisation was stress-related.
The Applicant stated he downloaded a Form F8 a couple of days before sending it to the Commission on 27 September 2023. The Applicant stated that he attended the State Library in the evening of 27 September 2023, which he said closed at 9:00 PM. The Applicant stated that he used the Library’s facilities and his laptop to send his email to the Commission dated 27 September 2023.
The Applicant’s email dated 27 September 2023 time stamped 12:47 PM and titled ‘general protections dismissal application’,[14] was sent to ‘[email protected]’ and ‘[email protected]’ and stated the following:
to whom it may concern,
please find my application attached
The document attached to the email was in a PDF file format. It consisted of 12 white pages with no content.
As observed, on 27 September 2023 by email time stamped 12:53 PM,[15] the Commission responded to the Applicant in the terms detailed at paragraph [2] of this decision.
By email dated 28 September 2023 time stamped 4:52 PM, the Applicant responded to the Commission stating:
Dear…
My apologies. I did not realise the file was blank.
Something must have gone wrong with the scanner I used.
Please find attached the completed form.Regards
Simon[16]
By email dated 6 October 2023, the Applicant emailed the Melbourne Registry noting that he had not heard from anyone regarding his application and requested an update on what was happening with it.
On 8 October 2023, the Melbourne Registry sent an acknowledgement email to the Applicant stating that:
This email is from the Fair Work Commission. We have received your application form.
You have now started a case at the Fair Work Commission. Your case number is C2023/5997.
We will write to you again soon about what happens next. The attached letter includes links to our website for more information and where to get help…
On 8 October 2023, the Melbourne Registry sent the following email to the Applicant regarding the application fee:
Dear Simon Pankhurst
Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.
On 28 September 2023, you lodged an application with the Fair Work Commission. Your case number is: C2023/5997.
There is an application fee of $83.30.
You need to pay the fee before we can progress your application.
How to pay
Pay the application fee online via SecurePay here.
This is the quickest way to pay and helps avoid delays.
If you can't use Secure Pay, you can call us on 1300 799 675 to pay by credit card over the phone.
If you don't make payment within 7 days your application may be dismissed.
If you can't afford to pay the application fee
You can apply to have it waived by sending a completed Form F80-Waiver of application fee to [email protected].
If you're not the payer
If this email has been sent to you and you are not the payer, please send an email to [email protected] to notify us of the payer details including payer name, payer email address and your case number.
Please call us on 1300 799 675 if you have any questions between 9am and 5pm (local time) Monday to Friday.
Please do not reply to this email.
Thank you.
Fair Work Commission
On 12 October 2023, the application fee for the general protections application was paid.
Consideration
3.1 Dismissal date
It is well-established that a termination of employment takes effect when it has been communicated to the employee. The Respondent contends that the Applicant’s dismissal took effect on 6 September 2023 when the letter of termination was sent to his usual email address.
For his part, the Applicant stated that his dismissal took effect on 13 September 2023.
In Ayub v NSW Trains (Ayub), the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[17] The Full Bench explained at paragraph [42] of Ayub:
We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…
It is uncontroversial that the Applicant’s last day of paid work for the Respondent was on 6 September 2023.
Further it is evident that the email address that the Respondent used to send to the Applicant his letter of termination was that which the Applicant had previously used to communicate with the Respondent. I note in this respect the email sent by the Applicant to the Respondent on 30 August 2023.[18] There was no evidence before me that on 6 September 2023, the Applicant was absent access to the internet to access his emails.
As of 6 September 2023, the Applicant, if he did not know, was nevertheless in the position of having had a reasonable opportunity to find out that he had been dismissed. The communication from the Respondent, which was unequivocal in its terms, was that Applicant’s employment had terminated as of 6 September 2023.
Whilst the Applicant may argue that he was, at the time is dismissal took effect, certified unfit, he was similarly certified unfit on 7 September 2023, and yet on that date confirmed receipt of the Respondent’s communication that he had been dismissed.
Having considered all the evidence, I find that the Applicant’s dismissal took effect on 6 September 2023.
3.2 Date the application was made
As I have found that the Applicant’s dismissal took effect on 6 September 2023, the 21-day period for making an application expired at midnight (AWST) on 27 September 2023. The blank document was sent via email to the Commission on 27 September 2023, and the subsequent Form F8 that had been completed, was sent to the Commission on 28 September 2023.
In Arch v Insurance Australia Group Services Pty Ltd (Arch),[19] a case involving the late filing of an application under s 365 of the Act, the Full Bench found that the analysis of the issue to be determined at first instance had proceeded on the implicit premise that, because the document which was lodged by the appellant, a Mr Arch, on 22 May 2019 was not a complete application in accordance with the prescribed Form F8, it was no application at all. Mr Arch had, the day after his application was due to be filed in accordance with the statutory period, filed a ‘substantially completed Form F8 general protections dismissal application which omitted the first three of eight pages.’[20] The application acknowledged that Mr Arch had engaged with his employer in an attempt to resolve his dispute, and that this had caused him to delay attempting to file his application until late on the final day, at which time the Commission’s online lodgement portal was down for maintenance.[21] The partial application identified the remedies he sought and the alleged contravention of the Act upon which he relied.[22] Accompanying the partially completed application were supporting documents, including a copy of an enterprise agreement, the letter of termination and correspondence that had passed between Mr Arch, his former employer and the workers’ compensation insurer.
The Full Bench decided that the approach at first instance was incorrect and cited with approval at paragraph [31] the following passage from Hambridge v Spotless Facilities Services Pty Ltd (Hambridge)[23], where an applicant had attempted to file an unfair dismissal application but had used the wrong form:
[26] … The Commission is required by s.577(b) to perform its functions and exercise its powers in a manner that is ‘quick, informal and avoids unnecessary technicalities’. In this case, that requirement would operate to direct the Commission to look at the substance of the first application, not the form that happened to be used to make it. In substance, we consider that it was an unfair dismissal application: it was intended to be one, it was described as one in Mr Hambridge’s covering email, and its contents were concerned with contentions of unfairness in the dismissal rather than any cause of action for a contravention of Pt 3-1 of the FW Act. It must be acknowledged that Mr Hambridge attempted in the first application to respond to requests and questions concerning the general protections provisions of the FW Act, but it is apparent that he did so in an endeavour to complete a form which he understood at the time to be for an unfair dismissal remedy application.
The Full Bench in Arch examined the substance, as distinct from the form, concluding that what Mr Arch had done on 22 May 2019 was to lodge a general protections application involving dismissal.[24] The Full Bench’s reasons for such findings can be found at paragraphs [32]–[33]:
[32] An examination of the substance, as distinct from the form, of what Mr Arch did on 22 May 2019 makes it clear that he lodged a general protections dismissal application. We have described the documents which Mr Arch lodged on 22 May 2019. In short, he electronically filed a partial Form F8 missing (we presume by accident) the first three pages. The partial document leaves no room for doubt that it was intended to be a general protections dismissal application. Although, because of the missing pages, the document did not identify the respondent or the dismissal the subject of the application, the accompanying documents (in particular the termination letter) made it clear that the application concerned Mr Arch’s dismissal from his employment with IAG on 30 April 2019.
[33] We have set out the chronology of what followed in some detail above. It is clear that the Commission’s registry immediately proceeded on the basis that Mr Arch had filed a general protections dismissal application on 22 May 2019. It was recorded as such on CMS and assigned a matter number. The following day, the Commission obtained from Mr Arch the prescribed filing fee for a general protections dismissal application and informed IAG in writing that it had received such an application in respect of Mr Arch’s former employment with IAG. Subsequent advice to Mr Arch about the need for him to provide a complete Form F8 proceeded, as we have earlier set out, on the express premise that Mr Arch had filed a general protections dismissal application on 22 May 2019, albeit an incomplete one. Mr Arch was repeatedly advised by the Commission that if he did not file a completed document, he was at risk of having his application dismissed – advice that was premised on there being an extant application capable of being dismissed. He was never advised (prior to the decision) that the Commission did not regard him as having filed an application for the purpose of s 366 on 22 May 2019 with the consequence that time was still running for the purpose of that provision. In the circumstances described, it would be unconscionable for the Commission to subsequently proceed on the basis that Mr Arch did not file any application for the purpose of s 366 until 4 July 2019.
Addressing the issue that whilst Mr Arch had submitted an application, he had not filed an application in the prescribed form on 22 May 2019, the Full Bench observed that s 585 of the Act requires that an application must be in accordance with the procedural rules (if any) relating to applications of that kind.[25] However, the Full Bench acknowledged that past decisions of the Full Bench had concluded that non-compliance with s 585 does not invalidate an application because the Act confers discretionary procedural powers as to how to deal with such an application.[26] In this respect, the Full Bench referred to ss 585 and 586, and also observed:
…s 587(1)(a) provides that the Commission may dismiss an application if it is not made in accordance with the FW Act. Thus, where a defective application is filed, it may be the subject of correction, waiver or dismissal. It may also be discontinued under s 588. But the FW Act does not disclose an intention to treat it as being entirely invalid and of no effect. The advice given by the Commission staff to Mr Arch from 22 May 2019 until 4 July 2019 (when he finally provided an application in proper form) was at all times consistent with this legal position.[27]
In Hatch v Woodside Energy Ltd (Hatch),[28] the appellant, a Mr Hatch, sent a ‘GP application’ by email to the Melbourne Registry at 11:59 PM (AWST) on 4 May 2022. That email was received by the Registry at 1:59 AM (AEST) on 5 May 2022. The ‘GP application’ was also sent to the Perth Registry at 12:12 AM (AWST) on 5 May 2022. The period of 21 days as provided by s 366(1) of the Act to make a GP application ended at midnight 4 May 2022.[29]
The Full Bench in Hatch noted that the email sent to the Registries attached an ‘application’ that was unable to be opened by Commission staff when they attempted to do so during business hours in Melbourne on the morning of 5 May 2022.[30] This was because the document that Mr Hatch had attached was of an incompatible format or there were security restrictions that had been imposed either by Mr Hatch or the Commission.[31] Notwithstanding, Mr Hatch sent a document to the Commission the following day, which could be opened.
In Hatch, the Full Bench distinguished between when an application is ‘made’ for the purposes of s 366 of the Act and when it is ‘lodged’ for the purpose of the Fair Work Commission Rules 2013 (the Rules).
It may be recalled that s 585 provides that an application must be in accordance with any procedural rules for that type of application. The Rules deal further with the requirements regarding applications. Rule 15 deals with lodgement of documents using the Commission’s electronic lodgement facilities and includes:
…
(2) If a document lodged in accordance with this rule is an application commencing a matter:
(a) the General Manager must send an acknowledgement of lodgement, by email, to the person lodging the document; and
(b) the application is not taken to have been lodged until the acknowledgement of lodgement mentioned in paragraph (a) has been sent; and
(c) once the acknowledgement of lodgement mentioned in paragraph (a) has been sent, the application is taken to have been lodged at the time it was received electronically by the Commission.
Rule 8 provides that where there is an approved form, the approved form must be used, although it is sufficient compliance if a document is substantially in accordance with the approved form. Rule 9 relevantly allows for applications under s 365 to be made by telephone. Rule 13 sets out general requirements for lodging documents, including that they must be typewritten, clearly written or clearly reproduced. Rule 6 provides a discretion for the Commission to dispense with compliance with the Rules.
The Full Bench in Hatch observed that the Act did not define the word ‘made’ in the context of an application having been ‘made’ within the period specified in s 366(1)(a). It, however, formed the view that the second chronological event required by s 366(1)(a) of the Act, is that an application be ‘made’ within the required 21-day period and that the 21-day period runs from the same local time where the dismissal took effect.[32]
The Full Bench clarified that it did not consider that the rules made by the Commission could be said to displace or alter in any way the statutory time limit in s 366 of the Act. In any event, the rules can be waived, including after the time for compliance has passed, which suggest they are not intended to govern when an application was ‘made’.[33]
Expanding upon the concept of ‘made’ in the context of deficiencies in an application, at paragraph [48] of Hatch, the Full Bench observed:
Put another way, an application might suffer a range of (potentially fatal) defects and could still [be] capable of being “made”, albeit it might be liable to dismissal if those defects are not cured or, in the case of the procedural rules, the requirement to meet them is not excused. There may be circumstances where the defects or deficiencies in a purported application are sufficiently significant that an application cannot even said to have been “made”. Save for the issue raised about the Appellant’s Form F2 initially being unable to be read, we do not consider this is such a case and say nothing further on that matter.
Regarding Mr Hatch having submitted an ‘unreadable’ document on the night of 4 May 2022, at paragraphs [50]–[51], the Full Bench in Hatch stated:
[50] One issue of significance was the fact that the Appellant’s initial email at 11.59pm AWST attached a document that the FWC Registry was unable to read. On the material before us, we consider that was an issue of “lodgement” and did not affect whether the application had been “made”. It is also unclear to us exactly what the reason was for the Registry being unable to view the initial attachment. As noted above, the email sent on 5 May 2022 from the Registry stated that the attachment could not be opened because of the format of the files, or security restrictions imposed by the Applicant, or security restrictions of the Commission for some file sharing websites. We note that correspondence does not indicate what the actual reason was that the files contained with the Appellant’s first email could not be read. We also note the Appellant has stated (and we have no reason to doubt) that his initial email did contain a “Word” format document, which is consistent with the correspondence from Registry regarding its preferred file formats. In the event that it was not, compliance with rule 14 is waived.
[51] Nonetheless, the Applicant resent the attachment in PDF format. There is no suggestion that what he resent in PDF form was any different in content to his initial document, such that it was a different application. We do not consider that these events allow a conclusion that the application was not “made” at 11.59 AWST. (italics for emphasis; citations omitted)
Since the Full Bench decisions of Arch, Hambridge and Hatch, single members of this Commission have grappled with circumstances where, for example, an incomplete Form F8 has been filed (albeit late)[34] and the Commission’s online lodgement system has been used to make an application but the Form F8 that has been uploaded, whilst in the prescribed format, had not been completed.[35]
In Brunskill v Federation Children Nth Geelong Pty Ltd (Brunskill), the Deputy President, referring to Arch, observed that the Full Bench followed the approach taken in an earlier case involving an applicant who had used the wrong form to make an unfair dismissal application, ‘of examining the substance rather than the form of what had occurred.’[36] The Deputy President continued that the Full Bench had concluded that taking into account all the information provided by Mr Arch, including the supporting documents, there was ‘no room for doubt’ that it was intended to be a general protections dismissal application.[37]
In Brunskill, the Deputy President, having observed that the Commission regularly deals with applications that are incomplete or where the prescribed fee is unpaid at the time the application is made, noted that the degree of incompleteness also varies significantly from an unpaid application fee at one end of the spectrum, to most if not all relevant information not being provided at the other end.[38]
At paragraphs [28]–[29] the Deputy President expressed:
[28] It is difficult to discern a basis, for the purposes of s.366, for treating an application form that is blank as not being an application, but an application form that is missing or contains incorrect essential information is an application. The lack of a meaningful distinction between the two is particularly significant given the Commission is not a Court, is statutorily obliged to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, and is not bound by the rules of evidence and procedure. In the context of a relatively short period in which to make an application of 21 days, a generous and purposive construction of what it means to ‘make an application’ is to be preferred. In my view, the blank application submitted within time is not necessarily to be treated as being entirely invalid and of no effect.
[29] As the Full Bench in Hatch noted, an application with potentially fatal defects might be liable to dismissal. The Act provides a means to deal with the circumstance of an entirely blank application being made, with the capacity under s.587 of the Act to dismiss the application if the completed form is not promptly submitted. (citations omitted).
The document that was sent by the Applicant via email to the Commission on 27 September 2023 was a blank document. It did not present as a blank Form F8, it was a PDF consisting of 12 pages all of which were white. That document was attached to an email that stated in the subject line ‘general protections dismissal application’ and in the body of the email stated ‘please find my application attached’.
For the following reasons, I am satisfied that the application was ‘lodged’ on 28 September 2023 and was ‘made’ on that same day. The document sent to the Commission on 27 September 2023 did not constitute an application under s 366 of the Act that had been made within 21 days after the Applicant’s dismissal took effect.
Returning to Arch, which cited with approval paragraph [31] of Hambridge, the Commission is required by s 577 of the Act to perform its functions and exercise its powers in a prescribed manner, and, in circumstances of an incomplete application, that requirement (under s 577(1)(b)) would operate to direct the Commission to look at the substance of the application, not the form that happened to be used to make it.
Turning to the document that was attached to the Applicant’s email dated 27 September 2023, there was no substance, it was simply 12 white pages. This is to be distinguished from circumstances where the wrong application form is utilised but it evinces content (Hambridge), or where a partially completed Form F8 is submitted with supporting documentation (Arch). In Arch, the Full Bench observed:
The partial document leaves no room for doubt that it was intended to be a general protections dismissal application. Although, because of the missing pages, the document did not identify the respondent or the dismissal the subject of the application, the accompanying documents (in particular the termination letter) made it clear that the application concerned Mr Arch’s dismissal from his employment with IAG on 30 April 2019.[39]
At paragraph [33] of Arch, the Full Bench detailed the chronology of events that unfolded subsequent to the receipt of Mr Arch’s partially completed (or incomplete) application. Those events included that the Commission’s Registry proceeded on the basis that Mr Arch had filed a general protections dismissal application on 22 May 2019, it had been recorded as such in the Commission’s electronic filing system, it had been assigned a matter number, it obtained a filing fee from Mr Arch and informed the respondent to Mr Arch’s application of the application. Further, Mr Arch was advised by the Commission that if he did not file a complete document, he was at risk of having his application dismissed – the advice, stated the Full Bench, was premised on there being an extant application capable of being dismissed. It was those particular circumstances, so described at paragraph [33] of Arch, that led the Commission to conclude ‘it would be unconscionable for the Commission to subsequently proceed on the basis that Mr Arch did not file any application for the purpose of s 366 until 4 July 2019.’[40]
It is not apparent that the Full Bench in Arch was proposing that the circumstances that followed the receipt of Mr Arch’s went to the substance of the application but rather that the actions that had followed receipt of Mr Arch’s incomplete application would render it unconscionable for the Commission to treat his partially complete document as anything but a general protections dismissal application. As was said in Hambridge, ‘[i]n this case, that requirement would operate to direct the Commission to look at the substance of the first application, not the form that happened to be used to make it.’[41]
Insofar as it is relevant, the case before me is not one where the document attached to the Applicant’s email could not be opened, such was the case in Hatch, and, as was identified by the Full Bench in Hatch at paragraph [48], there may be circumstances where the defects or deficiencies in a purported application are sufficiently significant that an application cannot even said to have been ‘made’. In respect of the document sent by the Applicant to the Commission on 27 September 2023, the defect or deficiency is sufficiently significant that it cannot be said that the Applicant’s application was made on that date. Further, as to the events that unfolded subsequent to the Applicant’s blank document, they were not such that it would render it unconscionable for the Commission to proceed on the basis that the Applicant, as of 27 September 2023, had not made an application. Whilst the Applicant’s email to the Commission dated 27 September 2023, included in the subject line ‘general protections dismissal application’, that in and of itself was insufficient to overcome the significant deficiencies in respect of the blank document that was sent to the Commission on that date.
As I have found that the Applicant’s application was made on 28 September 2023 and his dismissal took effect on 6 September 2023, his application was not made within the statutory timeframe prescribed by s 366(1)(a). It follows that consideration turns to whether there are exceptional circumstances that warrant the grant of an extension of time, as provided in s 366(1)(b) of the Act.
3.3 Extension of time
The Act requires the application to have been made within 21 days of the dismissal taking effect and s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. It has been said that proceedings not commenced in time should not be entertained.[42] However, the Commission may extend the period under s 366(1) if satisfied that there are exceptional circumstances that warrant doing so under s 366(2). This latter sub-section provides that the Commission is to take into account the following factors when determining whether there are exceptional circumstances:
(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 similar position.
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[43] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[44] 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 can be considered exceptional.[45] It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[46]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[47]
At the commencement of the hearing and during the hearing, the parties were referred to s 366(2) of the Act and the meaning of ‘exceptional circumstances’. Both were invited to make further submissions in relation to the question of whether there were exceptional circumstances.
3.4 Reason for the delay
In Pottenger v Department of Caffeine,[48] it was observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[49] or a reasonable explanation.[50]
The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[51] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[52]
The Applicant attributes the delay in making the application on several factors.
First, leading up to his dismissal he had been unwell and sought hospital intervention. In this respect, I refer to the Applicant’s medical certificate as detailed at paragraph [14] of this decision.
Second, the Applicant was from New Zealand and was unfamiliar with Australian legislation.
Third, the Applicant had thought he had filed an application on 27 September 2023 and on finding out that the document received by the Commission was blank, he endeavoured to file one on 28 September 2023, which he did. The Applicant noted that the application was not filed earlier in the day on 28 September 2023 because he was attending to prospective work opportunities and was also unaware for a period that the document he had sent on 27 September 2023 was blank.
Fourth, the Applicant did not find out about his dismissal until after 6 September 2023.
Whilst the Applicant contends that his ignorance of the law, in part, delayed the making of his application, such ignorance has not been found to be an exceptional circumstance under the Act in relation to the granting of an extension of time.[53] Furthermore, whilst the Applicant contends he did not find out about his dismissal until after 6 September 2023, I have found that he had at least a reasonable opportunity to find out he had been dismissed effective that day.
Based on the evidence before me, the period of the delay commenced from 27 September 2023 and concluded on the lodgment of the Applicant’s application on 28 September 2023. In that period, the Applicant has identified a reason that provides a plausible explanation for the period of the delay. Primarily, the reason is that the Applicant thought that he had made his application within the statutory period and was unaware, until informed by the Commission, that he had sent in a blank document. It is apparent that on receipt of advice that the Applicant had sent in a blank document, the Applicant was seized with a sense of urgency and sought to rectify the situation by responding to the Commission on 28 September 2023 by way of submitting a completed Form F8.
On balance, and in the circumstances of this particular case, I find the reason for the delay is an acceptable one. This weighs toward a finding of there being exceptional circumstances.
3.5 Action taken to dispute the dismissal
There is no evidence before me to suggest that the Applicant took action to dispute his dismissal by the Respondent albeit he made enquiries with respect to his final termination payment. However, in all the circumstances, I consider this to be a neutral factor.
3.6 Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would face if an extension of time is granted.
However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. In the present case, I consider this to be a neutral factor.
3.7 Merits of the application
In Telstra-Network Technology Group v Kornicki,[54] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[55]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to make her or his application.[56] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
Whilst the Applicant’s application and materials filed in support of his application, do not well articulate the contravention or contraventions of the general protections provisions he relies upon, it cannot be said that the Applicant’s application as currently framed is absent merit. He has identified s 340 of the Act and notes that he was dismissed purportedly because of raising a safety concern. In such circumstances, I consider this to be a neutral factor.
3.8 Fairness as between the applicant and other persons in a similar position
Neither Applicant nor Respondent drew my attention to any persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I have considered this to be a neutral consideration in the present matter.
Conclusion
The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.
Having regard to all of the matters that I am required to take into account under s 366(2), I am satisfied that the requisite exceptional circumstances exist. There are in this case more factors which weigh toward the granting an extension of time than not. Further, in light of all the evidence, I am persuaded that it is fair and equitable to extend the time in which the Applicant can make his application.
For present purposes and as a result of my determination, this matter will now be listed for conference between the Applicant and the Respondent pursuant to s 368(1) of the Act in order to explore the possibility of resolution.
DEPUTY PRESIDENT
Appearances:
S Pankhurst, Applicant
N Richards for the Respondent
Hearing details:
2023.
Perth (by telephone):
23 November.
[1] Form F8A – Response to general protections application, [2.4(1)] (Form F8A).
[2] Fair Work Act 2009 (Cth) s 366(1)(a).
[3] Ibid s 366(1)(b).
[4] Form F8A (n 1) [2.4(1)].
[5] Respondent’s Outline of Submissions, [1].
[6] Ibid [2].
[7] Ibid [3].
[8] Ibid [4].
[9] Digital Hearing Book, 27 (DHB).
[10] Respondent’s Outline of Submissions, [5].
[11] DHB (n 9) 58.
[12] Respondent’s Outline of Submissions, [6].
[13] DHB (n 9) 53.
[14] Record extracted from Fair Work Commission documents. It is observed that there is a discrepancy concerning the time stamps in emails provided by the Applicant and those of the Commission. The Applicant’s document shows date 27 September 2023 at 17:47.
[15] Record extracted from Fair Work Commission documents. It is observed that there is a discrepancy concerning the time stamps in emails provided by the Applicant and those of the Commission.
[16] DHB (n 9) 13–14.
[17] (2016) 262 IR 60, 79 [48].
[18] DHB (n 9) 21.
[19] [2020] FWCFB 601 (Arch).
[20] Ibid [7].
[21] Ibid.
[22] Ibid.
[23] (2017) 271 IR 360 (Hambridge).
[24] Arch (n 19) [31].
[25] Ibid [34].
[26] Ibid.
[27] Ibid [35].
[28] [2023] FWCFB 51 (Hatch).
[29] Ibid [7].
[30] Ibid [23].
[31] Ibid [24].
[32] Ibid [39].
[33] Ibid [47].
[34] Watson v Healthcare Imaging Services (Victoria) Pty Limited[2023] FWC 2675.
[35] Brunskill v Federation Children Nth Geelong Pty Ltd[2023] FWC 1756.
[36] Ibid [19].
[37] Ibid, citing Arch (n 19) [32].
[38] Ibid [26].
[39] Arch (n 19) [32].
[40] Ibid [33].
[41] Hambridge (n 23) 368 [26].
[42] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20] (Nulty First Instance).
[43] (2011) 203 IR 1, 6 [15].
[44] Ibid 5 [13].
[45] Ibid 5–6 [13].
[46] Nulty First Instance (n 42) [21].
[47] (2018) 273 IR 156, 165 [38] (emphasis in original) (Stogiannidis).
[48] [2018] FWC 3403.
[49] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[50] Roberts v Greystanes Disability Services [2018] FWC 64, [16].
[51] Stogiannidis (n 47) 165 [39].
[52] Ibid.
[53] Uhlhorn v P and J Mentiplay Investments Pty Ltd[2013] FWC 1353, [21].
[54] (1997) 140 IR 1.
[55] Ibid 11.
[56] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
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