Wayne Seiler v Green Light PS Pty Ltd
[2025] FWC 1960
•9 JULY 2025
| [2025] FWC 1960 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Wayne Seiler
v
Green Light PS Pty Ltd
(C2025/3409)
| COMMISSIONER MATHESON | SYDNEY, 9 JULY 2025 |
Application to deal with contraventions involving dismissal
On 26 April 2025 Mr Wayne Seiler (Applicant) filed a Form F8 application (Form F8) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009 (Cth)(Act). The respondent in the matter is Green Light PS Pty Ltd (Respondent).
Section 366(1) of the Act provides that an application under s.365 must be made:
(a)within 21 days after the dismissal took effect; or
(b)within such further period as the Commission allows under s.366(2) of the Act.
The Applicant commenced employment with the Respondent on 6 December 2024. It is not in contention that the Applicant was dismissed from his employment with the Respondent a short time thereafter on 10 December 2024. This followed the Respondent’s client, Deloitte, raising concerns about the results of a background check it had caused to be carried out in relation to Applicant. The background check involved, among other things, searching public information sources such as news outlets, websites and databases.
The application was made on 26 April 2025. This is more than 21 days after the dismissal took effect, and the Applicant therefore requires an extension of time if the application is to proceed.
Section 366(2) of the Act provides that the Commission may allow a further period if it 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 between the person and other persons in a like position.
Hearing and submissions
A hearing was held on 3 July 2025 to determine whether an extension of time should be allowed.
The Applicant filed submissions on 10 June 2025, the Respondent filed submissions on 17 June 2025, and the Applicant filed further submissions on 23 June 2025, addressing whether an extension of time should be allowed for the making of the application.
Section 366(2)(a) - the reason for the delay
The Applicant submitted that although he was notified of the dismissal on 10 December 2024, the underlying reasons and supporting documents were not disclosed at that time. In particular, the Applicant submitted that his termination of employment was vaguely attributed to background check results but that the specifics were not disclosed until later and the information remained incomplete until January 2025.
In this regard the Applicant submitted that the reason for the delay was primarily caused by his efforts to obtain and understand the contents of the background checks relied upon for his dismissal. The Applicant submitted that these documents could only be accessed after identifying the relevant third parties and undergoing lengthy verification processes.
The Respondent submitted that the Applicant had not identified any exceptional circumstances for the delay and had not provided an explanation for the entirety of the delay. In particular, the Respondent submitted that:
the Applicant submitted his details directly into the Fit2Work portal, knew who the background check provider was and there was no delay caused by “identifying the relevant third parties” who completed the check;
the Applicant did not require a copy of the background check results from Deloitte to submit an application within 21 days;
on 12 December 2024 the Respondent provided more information about the reason for the Applicant’s termination;
the Applicant acknowledged he was aware of adverse media checks on 13 December 2024 and received the background check results on 16 January 2025;
the Applicant has taken four months to lodge an application, after citing the background check results on 16 January 2024;
the Applicant has not disputed the results of the background check since receiving then on 16 January 2024.
In response the Applicant submitted:
he was unaware of the result of the background check as at 13 December 2024, he did not acknowledge the existence of media checks on this date and could not dispute the matters he was unaware of at this time;
it was not until 16 January 2025 that he had the full set of information from the Fit2Work background checks when they were provided to him by Deloitte;
he had only one telephone conversation with a representative of the Respondent, Ms Vicky Malone, and this occurred on 10 December 2024 when she notified the Applicant of the termination of his employment;
at no point during the telephone conversation on 10 December 2024 was the Applicant provided with reasons for his dismissal beyond being advised that the client wanted him removed from the project;
the totality of the information provided by the Respondent to the Applicant about the reason for his termination was as follows, as set out in an email from Rachel Russell-Hallinan of the Respondent:
“To clarify the reason, you have been asked to be removed from the assignment is due to failing background checks. This is in relation to the Global Media Search check and discrepancies noted within your CV and what was provided in the checks. For this reason, the client has asked for you to be removed.”
the Respondent distanced itself from the Fit2Work process and the Applicant had to obtain the information himself;
the process of obtaining the information was delayed by the Christmas and new year period until 15 January 2025.
It is understandable that the Applicant would have been frustrated about the lack of accompanying detail provided by the Respondent about why he had failed the background checks and why this had caused Deloitte to ask that he be removed from the project. The level of communication with the Applicant about this was poor. However, I do not accept that this prevented the Applicant from making an application, noting that it is often the case that an applicant in a matter will need to decide to make a dismissal related application without all the information concerning the reason for their dismissal being available. Further, even if the Applicant was waiting on this information before making an application, it does not explain the Applicant’s delay in making the application between 16 January 2025 and first making an application the Commission to dispute his dismissal on 14 April 2025 which is a delay of almost three months.
In these circumstances I do not consider that the reasons advanced by the Applicant provide a reasonable or acceptable basis for the delay and this weighs against allowing an extension of time.
Section 366(2)(b) - any action taken by the person to dispute the dismissal
The Applicant submitted that he took consistent steps to dispute the dismissal and seek clarification, including contacting the Respondent, Fit2Work and Deloitte. The Applicant also submitted that he engaged legal advice and initiated communications to prepare an application as early as practicable. In particular, the Applicant indicated that:
on 10 December 2024 he was advised by Respondent of the immediate termination of his employment at the request of Deloitte with no specifics provided;
between 11 and 12 December 2024 he requested clarification about his termination and the Respondent cited background check issues but could not provide details;
between 13 and 17 December 2024 he contacted Fit2Work who referred him to Deloitte who had requested the background check;
between 18 December 2024 and 16 January 2025, he engaged with Deloitte’s privacy team, underwent identity verification and received the background check reports;
in February 2025 he sought legal advice;
on 12 March 2025 he commenced formal preparations for filing;
between 20 and 27 March 2025 he attempted to meet Green Light management to resolve matters;
on 14 April 2025 he submitted an initial application for unfair dismissal to the Commission which he discontinued;
on 28 April 2025 he submitted his application to the Commission.
The Respondent submitted that:
the Applicant was aware of the provider who completed the checks as he had submitted his details into the Fit2Work portal;
the Applicant received the background check result on 16 January 2025 but did not submit the unfair dismissal application until 14 April 2024.
In response the Applicant submitted that:
he took all reasonable steps to follow up on the information that Deloitte relied on as provided by Fit2Work and that the Respondent had no part in the process and was unaware of his efforts to source the information;
the complete set of information was obtained on 16 January 2025;
he sent an email to Ms Gregory on 12 March 2025 requesting details for legal service;
on 24 March 2025 communication was exchanged with the Respondent about a meeting but this was cancelled;
his unfair dismissal application was submitted on 14 April 2024.
It is apparent from the above that the Applicant did not consider the explanation provided by the Respondent about his dismissal to be adequate and he embarked on a course of action via enquiries with Fit2Work and Deloitte to understand the reasons for his dismissal. However as noted by the Applicant, the Respondent was unaware of his efforts to source the information and the first indication that that Respondent had that the Applicant was to take some form of legal action was on 12 March 2025 when the Applicant requested details for legal service. This was over three months post dismissal. Further, despite having the results of the background checks on 16 January 2025 and requesting the details for legal service on 12 March 2025, the first time the Applicant actually disputed his dismissal was when he made his unfair dismissal application on 14 April 2025, before making the application currently before the Commission on 26 April 2024. The circumstances weigh against allowing an extension of time.
Section 366(2)(c) - prejudice to the employer (including prejudice caused by the delay)
The Applicant submitted that there would be no prejudice to the employer if the extension of time was allowed and that he maintained regular contact with the Respondent and informed it of his intent to change the dismissal. The Applicant submitted the Respondent was aware of this intention well before he made his application.
The Respondent submitted that the Applicant did not maintain regular contact and while he notified the Respondent on 12 March 2025 of his intention to serve legal documents, the Respondent did not hear from the Applicant between the period of 14 December 2024 and 12 March 2025. The Respondent submitted that given six months have passed since the termination of the Applicant’s employment, there is prejudice to the employer as witnesses may not be able to recall events accurately.
In response the Applicant submitted:
the Respondent deflected responsibility for the termination to the business that carried out the background checks and there was no value in communicating with the Respondent after 12 December 2024 as the material required to challenge the termination was not in the Respondent’s hands and he needed to source it;
the Respondent did not communicate any discrepancies or provide a link to the Global Media Search;
there was never any telephone communication beyond a brief conversation with Ms Malone that did not offer any detail, there were no meetings or exit interviews conducted in person and the only written communication provided to him was the termination email of 12 December 2024;
there can be no prejudice to the Respondent.
While I accept that in some circumstances a prejudice may result if the extent of a delay is such that witnesses may not be able to recall events accurately, the key facts in relation to this matter are that the Applicant was dismissed because the Respondent’s client, Deloitte, was not satisfied with the outcome of background checks undertaken by Fit2Work and this does not appear to be in contest. In these circumstances I do not consider prejudice to the employer arises and I consider s.366(2)(c) to be a neutral consideration.
Section 366(2)(d) - the merits of the application
In relation to the merits of the application the Applicant submitted that his application raises genuine and arguable concerns about procedural fairness and transparency, he was not given a chance to respond to the alleged discrepancies and his employment was terminated without a proper explanation or the opportunity to be heard.
The Respondent submitted that:
the Applicant had been employed by the Respondent in the position of KYC Analyst in the banking sector for less than three working days at the time of his dismissal;
the role of KYC Analyst was responsible for monitoring banking transactions to detect fraudulent and illegal activity;
the nature of the role of KYC Analyst meant that several background checks were required;
the Applicant’s casual employment agreement stated:
‘This offer and your employment are subject to you participating in, and successfully completing all background checks including but not limited to reference checks, visa checks, conflict of interest, education and criminal record checks required by the Company from time to time.”;
the Respondent allowed the Applicant to start paid training for the role whilst the background checks were being completed;
the termination of the Applicant’s employment was solely due to the customer (Deloitte) requesting that the Applicant be offboarded from a project due to issues raised around his employment background and discrepancies in the information of the employment history the Applicant provided;
at the time of the Applicant’s employment the Respondent only had one project which needed the Applicant’s skillset and this resulted in the termination of the Applicant’s employment.
The Respondent submitted:
the Applicant did not dispute the reason for the termination;
the Applicant has not provided any evidence that the background check outcome is incorrect;
the Respondent did not conduct the background check or facilitate the background check and does not have access to the result;
the Applicant has not listed any prohibited reason for the termination under the general protections framework;
the termination did not occur because the Applicant exercised a workplace right and therefore no general protections claim has been established.
In response the Applicant submitted:
he has never been asked to refute ‘information discrepancies’ or to respond to the global media search checks but rather asked the question, ‘what information discrepancies?’;
the Respondent has never substantiated any claim or assertion about the ‘discrepancies’ or asked whether the information contained in the Fit2Work background checks was true and correct;
as the Respondent did not put any questions to the Applicant about this and he was not provided with procedural fairness or due process.
It seems that the Applicant’s primary concern in relation to his dismissal was that there was a lack of procedural fairness because the Respondent acted to dismiss him:
after Deloitte caused background checks to be performed, the results of which Deloitte was not satisfied;
without giving reasons as to why the background checks were unsatisfactory; and
without giving him an opportunity to respond.
Further, in an attachment to his application the Applicant states the following as the basis for his claim:
“1. My claim is based on the terms of my employment contract and the provisions of the Fair Work Act 2009 and the General protection laws covered by this legislation
2. I contend that the Respondent breached the contract by failing to provide proper notice or payment in lieu of notice.
3. I also contend that my dismissal was unfair under the criteria set out in Section 387 of the Fair Work Act 2009”.
I have earlier found that the Respondent’s communication with the Applicant concerning his dismissal was poor. The Respondent did not seek to understand the results of the background check that Deloitte had caused to be carried out or seek to establish the accuracy of the results of this check via discussion with the Applicant. The Applicant did not know what the results were at the time he was dismissed, and it is understandable that he may have been frustrated and searching for answers.
The Applicant had lodged an unfair dismissal application on 14 April 2025 and such concerns about procedural fairness would be relevant to an application of that nature. However the Applicant had not served the minimum employment period, was therefore not a person protected from unfair dismissal at the time of his dismissal and withdrew the unfair dismissal application before making the application currently before the Commission. This application is said to involve a breach of the general protections provisions of the Act however it is unclear as to what the Applicant says the nature of breach is. While the application points to ss.340, 341 and 343 of the Act, the Applicant has not provided any detail about why he is alleging dismissal because:
he had a workplace right; or
had, or had not, exercised a workplace right; or
proposed or proposed not to exercise a workplace right.
In relation to s.343 it is unclear what conduct the Applicant says the Respondent engaged in with the intent to coerce the Applicant in respect of a workplace right. Further the Applicant has not provided any detail to suggest dismissal on the basis of any other prohibited ground under the general protections framework or identified any other protections that may be relevant within the general protections framework.
The lack of detail in the Applicant’s submissions and materials concerning the alleged breach of the general protections provisions of the Act is such that I am unable to make a firm finding that his application has merit.
Section 366(2)(e) - fairness between the person and other persons in a like position.
The Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[1]
The Applicant referred to the matter of Wilson v Woolworths[2] which involved a delay of 15 days and which he says is relevant in that he took direct action to dispute the dismissal in line with the application in this case. In Wilson v Woolworths[3] the applicant had originally filed an application pursuant to s.394 of the Act and then decided to discontinue his application and make a general protections application. The applicant in that matter said he had understood from the conciliator in the unfair dismissal matter that he had 60 days to make an application from the time of the conversation between the Applicant and conciliator, rather than 60 days from when the termination took effect. Considering the action taken by the applicant to dispute the dismissal, the Senior Deputy President:
expressed the view that the conduct of the applicant in telephoning his former employer in which he agitated all the matters about which he sought its response, indicated that he was not a person who did no more than sit upon his rights as he believed them to be;[4]
noted that the applicant gave evidence of having attempted to further agitate the matters by way of direct communication with the respondent after such time as his employment had been terminated;[5]
the applicant displayed an intention to contest the application and to demonstrate to the respondent that despite the decision to terminate his employment, the issues in contest had not reached finality and the respondent was therefore on notice that the matters would be contested in the future.[6]
The Senior Deputy President found that there were exceptional circumstances, particularly taking into account the reason for the delay, which concerned the purported advice of the Fair Work Australia conciliator upon which the applicant had reasonably relied upon.[7]
The circumstances of this matter are distinguishable from those in Wilson v Woolworths[8] in that while the Applicant sought clarification regarding his termination and received an email from Ms Russell-Hallinan on 12 December 2024, he did not have further contact with the Respondent after this time until contacting them over 3 months later on 13 March 2025 seeking contact for legal service documents. While the Applicant may have been making enquiries with a third party the Respondent did not know this and it is ultimately the Respondent who is the other party to the dispute. Further, it is apparent from the Senior Deputy President’s reasoning in Wilson v Woolworths that particular weight was attached to the reason for the delay, being that the applicant had relied on the conciliator’s advice and such circumstances arise in the matter currently before the Commission.
The Respondent noted that the Applicant missed the 21 day period by 118 days and referred to examples of where an extension of time was allowed but in respect of a much shorter period being:
Robinson v Interstate Transport[9] where the delay was 3 days;
Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group[10] where the delay was 26 days; and
Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[11] (2010) FWA 1394 where the delay was 4 days.
Robinson v Interstate Transport[12] concerned representative error and the Full Bench found that the Commissioner had erred in diminishing the significance of the representative error.[13] On rehearing the Full Bench found that there was an acceptable explanation of the reason for the delay in lodgement of the application being representative error and was satisfied that there were exceptional circumstances to allow a further period of time for making the application. The facts in the current matter are clearly distinguishable from those in Robinson v Interstate Transport.[14]
In Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group[15] the Commissioner pointed to the ‘usual’ facts in that matter being that:
the applicant had been required to take annual leave as some form of disciplinary action;
sick leave applied for during his annual leave was refused by his employer;
the applicant was due to return from annual leave in November 2009 but supplied his employer with a sick leave certificate exempting him from work until 3 December 2009;
the employee sought authority to access the applicant’s medical records and advised that it would make arrangements for the applicant to be assessed by an independent medical practitioner;
the employer, despite being provided with medical certificates covering the applicant until 8 January 2020, suspended payment for sick leave;
the employer advised the applicant that separate correspondence would be sent about the independent medical assessment it required him to undertake but instead wrote to the applicant on 10 December accusing him of abandoning his employment;
the applicant’s solicitors wrote to the respondent on 15 December denying abandonment of employment;
the applicant’s employment was nevertheless terminated on the ground of abandonment on 23 December 2009.[16]
The Commissioner in that matter found that the applicant was medically unfit to deal with the matter until late January 2010 and that the manner in which the termination occurred exacerbated the situation.[17] The facts in Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group[18] are clearly distinguishable from the current matter.
In Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[19] the Vice President:
found the applicant had attempted to submit an application before the 14 day period but encountered difficulty doing so and instead posted an application form which was received 4 days out of time;
found that in the circumstances of the matter making an application via telephone was not a viable option for the applicant but that he had made a bona fide attempt to make a real time application before the expiry of the 14 day period;
found that there were exceptional circumstances, being a bona fide attempt to file an application through the website within time which was unsuccessful for reasons beyond the understanding of the applicant.[20]
The circumstances in the matter currently before the Commission are clearly distinguishable from those in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery.[21]
The Respondent also referred to the matter of Gao v Department of Human Services[22] in which an extension of time was not granted. In that matter the applicant lodged an unfair dismissal application more than 27 weeks out of time. On appeal the applicant submitted that the Deputy President had failed to take into account that the delay was in part due to the respondent’s conduct in not responding to his request for a further review of the matters said to be relevant to his dismissal. In particular, the applicant was dismissed on 7 May 2010, made a request for a review on 9 July 2010 that was not responded to and made a further request on 3 December 2020. However it was found by the Full Bench that the Deputy President did take these events into account and was entitled to reach the conclusion he did on the material. The applicant also submitted, on appeal, that the Deputy President failed to take into account that the applicant sent an email to the respondent on 9 July 2010 disputing his dismissal. However the Full Bench found that far from failing to take it into account, the Deputy President expressly referred to it and found that the applicant did nothing to further his case after that email until 3 December 2010 which was a relevant consideration. I consider that the facts in Gao v Department of Human Services[23] are distinguishable from those in the current matter.
The Respondent also referred to the matter of Dwyer v Verifact Pty Ltd T/A Verifact Security.[24] That matter concerned an application filed approximately 2 years after the applicant’s dismissal. In that matter the applicant had submitted that his inability to pay for legal advice and mental difficulties explained the delay. However the Commissioner did not consider that the applicant was able to adequately explain the extensive delay, found that the applicant had not attempted to dispute the termination of his employment within the time limit for making an application and ultimately found that the applicant did not raise any matters that could be considered to be ‘exceptional circumstances’.[25] I consider that the facts concerning the application currently before the Commissioner are also distinguishable from those in Dwyer v Verifact Pty Ltd T/A Verifact Security.[26]
The Applicant and Respondent did not otherwise bring to my attention any matters currently before the Commission or others previously decided by the Commission relevant to this consideration. As such, I consider s.366(2)(e) to be a neutral consideration.
Conclusion
Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[27] Exceptional circumstances may 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.[28]
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding the matters in s.366(2) of the Act. By way of summary, these include that:
I do not consider that reasons advanced by the Applicant provide a reasonable or acceptable basis for the delay, particularly considering that by 16 January 2025 the Applicant had obtained the background check results yet did not lodge an application disputing his dismissal with the Commission until 14 April 2025 which is in itself a considerable delay of almost three months;
that the Applicant first indicated to the Respondent that he was to take some form of legal action was 12 March 2025, over three months after the dismissal when the Applicant requested details for legal service. However despite making such a request, the first time the Applicant actually disputed his dismissal was when he made an application on 14 April 2025;
I have not identified prejudice to the employer;
the lack of detail in the Applicant’s submissions and materials concerning the alleged breach of the general protections provisions of the Act is such that I am unable to make a firm finding that his application has merit;
the facts in the cases identified by the parties are distinguishable from those in the application at hand and I have found s.366(2)(e) to be a neutral consideration.
I am not satisfied that there are exceptional circumstances after considering the above matters individually as well as in combination.
Having regard to all of the matters at s.366(2) of the Act, I am not satisfied that there are exceptional circumstances and as such there is no basis for the Commission to allow an extension of time. The application is dismissed.
COMMISSIONER
Appearances:
Mr W. Seiler on his own behalf.
Ms N. Gregory for the Respondent.
Hearing details:
2025.
Sydney, online by video using Microsoft Teams.
3 July.
[1] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].
[2] Wilson v Woolworths [2010] FWA 2480.
[3] Wilson v Woolworths [2010] FWA 2480.
[4] Wilson v Woolworths [2010] FWA 2480 at [19].
[5] Wilson v Woolworths [2010] FWA 2480 at [20].
[6] Wilson v Woolworths [2010] FWA 2480 at [21].
[7] Wilson v Woolworths [2010] FWA 2480 at [30].
[8] [2010] FWA 2480.
[9] [2011] FWAFB 2728.
[10] [2010] FWC 3863.
[11] [2010] FWA 1394.
[12] [2011] FWAFB 2728.
[13] [2011] FWAFB 2728 at [29].
[14] [2011] FWAFB 2728.
[15] [2010] FWC 3863.
[16] [2010] FWC 3863 at [27] – [28].
[17] [2010] FWC 3863 at [29].
[18] [2010] FWC 3863.
[19] [2010] FWA 1394.
[20] [2010] FWA 1394 at [29].
[21] [2010] FWA 1394.
[22] [2011] FWAFB 5605.
[23] Ibid.
[24] [2013] FWC 2634.
[25] [2013] FWC 2634 at [47].
[26] [2013] FWC 2634.
[27] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[28] Ibid.
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