William Ko v Medical Technology Association of Australia Limited, Ian Burgess
[2024] FWC 1530
•13 JUNE 2024
| [2024] FWC 1530 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
William Ko
v
Medical Technology Association of Australia Limited, Ian Burgess
(C2024/1409)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 13 JUNE 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – application filed 56 days out of time – no exceptional circumstances – application dismissed
Introduction
On 5 March 2024, Mr William Ko (Applicant), filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that he was dismissed by the Medical Technology Association of Australia Limited (Respondent) in contravention of Part 3-1 of the Act.
Section 366(1) of the Act provides that an application made under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to the existence of “exceptional circumstances”).[1]
It is not in dispute between the parties that the employment relationship between the Applicant and the Respondent came to an end by way of dismissal on 19 December 2023. It is also not in dispute that the Applicant was aware of the cessation of his employment with the Respondent on that date. I equally make this finding.[2]
Given that the Applicant has filed his Application on 5 March 2024, the Application has been filed 56 days outside of (or beyond) the 21 day time limit under s.366(1)(a) of the Act, and 77 days after his dismissal. The Applicant should have filed his Application on or before 9 January 2024 for it to have been filed within the requisite 21 day time period.
Directions were issued on 4 April 2024, to program for hearing the Applicant’s request for a 56 day extension of time.
At the hearing on 24 May 2024, the Applicant appeared for himself, and Ms Alexandra Abbott, Senior Associate, HWL Ebsworth Lawyers, appeared with permission for the Respondent.[3]
Legal principles
Section 366(2) of the Act reads:
“366 Time for application
…
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances before I can determine whether to exercise my discretion to grant an extension of time.
The test of “exceptional circumstances” is a “high hurdle” for an applicant to meet, and involves the exercise of a broad discretion by the Commission.[4]
The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd[5] (Nulty), in relation to the term “exceptional circumstances”, has stated:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14]Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…”
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”[6]
The matters under s.366(2)(a)-(e) of the Act need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[7]:
“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
…
[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
…
[38] 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.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, 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.”[8]
It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ (as required under s.366(2) of the Act) requires the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne
v Abel[9]:
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634.”[10]
(my emphasis)
Reason for delay[11]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[12] (Bianca Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[13] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay,[14] but this would be most unusual. The focus is upon the period of delay following the expiry of the 21 day time period, albeit circumstances arising prior to the delay may be relevant.[15]
The relevant procedural history of the Applicant’s interaction with the Commission (leading up to 5 March 2024) is as follows:
a) On 11 December 2023, the Applicant contacted the Commission and inquired about lodging a Form F72 stop bullying application (under s.789FC of the Act) and a Form F8C general protections not involving dismissal application (under s.372 of the Act). He was advised that he could make both claims concurrently.
b) On 13 December 2023 the Applicant was sent a show cause letter (as to why his employment should not be terminated) by the Respondent.
c) On 15 December 2023 the Applicant lodged a Form F8C with the Commission (GP Claim).
d) On 19 December 2023 the Applicant was dismissed by the Respondent.
e) On 1 January 2024, the Applicant lodged a Form F2 Unfair Dismissal Application (UD Claim).
f) The Applicant made various inquiries with the Commission, on 4 and 5 January 2024, about the GP Claim and the UD Claim, including as to the possibility of both of these claims being dealt with together. The Applicant says that at no time was he advised in any of these communications that because he was now dismissed, he should discontinue the GP Claim and lodge a Form F8 (general protections involving dismissal application).
g) As is its right under s.374(1)(b) of the Act, on 27 December 2023, the Respondent advised the Respondent and the Commission (via filing a Form F8D response to the GP Claim) that it did not consent to participating in a conference in respect of the GP Claim. The Commission’s file in the GP claim was subsequently closed on 8 January 2024, and all parties were advised on this date of the closure.
h) On 9 January 2024, the Applicant was advised by the Commission that as his income exceeded the high income threshold, his UD Claim could not proceed further, and that he should withdraw (discontinue) his UD Claim.[16]
i) On 28 February 2024, the Applicant discontinued his UD Claim.
j) On 5 March 2024, the Applicant lodged the Application the subject of these out of time proceedings.
The Applicant’s reasons for delay is “simply the uncertainty of jurisdiction”, in that he did not realise that his GP Claim (made during his employment) would not continue on post his dismissal. The communications that he had with the Commission did not provide him with any clarity on the “correct protocols”, and in the absence of such advice from the Commission, or access to legal advice, he continued to mistakenly rely upon his GP Claim as dealing with his dismissal.[17] It is apparent that this ‘mistaken belief’ reason of the Applicant is contrary to subparagraphs 15(g) and (h) of this decision.
The Respondent relies upon the following written submissions:
“25. While the Applicant also states that his GP Non Dismissal Application was simply "vacated” due to MTAA not consenting to participate in a conciliation conference, MTAA's evidence and Commissioner Schneider's correspondence in fact makes clear that the GP Non Dismissal Application and corresponding file had been closed by the Commission (and so, would not progress within the Commission's jurisdiction) and the Applicant was advised to pursue his application further in the relevant jurisdiction.
26. The Applicant has not provided any precise details or evidence of:
(a) what incorrect advice or information (if any) he received from the Commission's staff;
(b) how his confusion as to what the appropriate application was to challenge the termination of his employment arose and what steps, if any, he took to clarify and resolve his own confusion;
(c) how and in what way(s) he had "uncertainty" of the jurisdiction; and
(d) whether it was his own misconceived understanding that led to his erroneous conclusion that his UD Application and his GP Non Dismissal Application would be heard together.
…
37. The Respondents submit that exceptional circumstances do not exist to support the granting of an extension of time to the Applicant in the current proceedings for the GP Dismissal Application. In particular, because:
(a) the Applicant has not provided any evidence from which the Commission could be satisfied as to the reasons for the delay or that exceptional circumstances exist;
(b) the Applicant asserts he had uncertainty about jurisdiction and confusion as to whether his UD Application and GP Non Dismissal Application could be heard together. The Respondents say these submissions cannot be accepted by the Commission. However, the Respondents submit the Applicant was, at a minimum, on notice for at least 6 days following the withdrawal of his UD Application on 28 February 2024 and the closure of his GP Non-Dismissal Application a significant time prior to this on 9 January 2024, that these applications would not be heard together, or at all. Despite this, the Applicant waited six days from such notification on 28 February 2024 to file the GP Dismissal Application and no explanation for this specific period of the delay (in addition to the 56 days delay in total following the expiration of the 21 day period) was provided by the Applicant;
(c) to the extent the Applicant says he received incorrect or confusing advice or information from the Commission's staff as to his various applications and concurrent hearing of those applications, the Respondents submit this cannot be accepted based on the available evidence. In any event, the Respondents submit that the role of the Commission is clearly as an independent tribunal, and not to give legal advice;
(d) the Applicant's confusion or ignorance of the most appropriate or preferred application for him to pursue to challenge the termination of his employment is not an exceptional circumstance justifying the grant of an extension of time; and
(e) it would be unfair in the circumstances to grant the Applicant an extension of time.
…
40. The Applicant asserts that his delay in lodging the GP Dismissal Application was due to his "uncertainty of jurisdiction" where he did not realise the GP Non-Dismissal Application did not "protect those rights under the FW Act after the dismissal".
41. The Applicant has stated that he sought clarification "at various points", albeit it is not made clear by the Applicant from whom he sought such clarification and when these various points occurred. The Applicant submits that "discussions with Commissioner Schneider and the FWC Unfair Dismissal team did not provide any clarity on the correct protocol. In the absence of clear advice, I continued to rely on the prior general protections application [the GP Non Dismissal Application] lodged during my employment".
42. The Respondents submit no weight should be given to the Applicant's reasons for the delay in supporting there being exceptional circumstances giving rise to basis for the Commission to grant an extension of time.
43. The Commission (including its telephone helplines and staff) do not give advice or opinions, including specifically any legal advice or opinions. So much is made clear on the Commission's 'Contact Us' page on its website, which clearly states, "As an independent tribunal, we cannot give you legal advice” and this webpage also contains a hyperlink thereafter for persons to "Find out Where to get legal help".
44. The Applicant only proffers a vague explanation and no actual evidence of what advice or information the Commission's staff provided him during various telephone conversations he seeks to rely upon in the Applicant's Submissions. It is unclear, for these reasons, how the Applicant says his uncertainty as to the jurisdiction arose beyond his own failures to make appropriate enquiries, including via the Commission's website, to inform himself of his eligibility to pursue an application in the Commission and what may be the most appropriate application to pursue in his circumstances.
45. The Respondents submit the Commission could not be in a position, from the available evidence, to make a finding of fact as to what information the Applicant was provided during his telephone calls with the Commission's staff and further, to then be satisfied that this reasoning reaches the high threshold of being "exceptional circumstances". The Respondents submit that regardless of what was discussed between the Applicant and Commission staff members, this could not be said to constitute advice.
46. Further to this, the Applicant was clearly aware, by Commissioner Schneider's email on 9 January 2024, that his GP Non Dismissal Application and the Commission's corresponding file had been closed such that he could no longer pursue this application and it would not "protect those rights under the FW Act" unless he decided to pursue the GP Non Dismissal Application in the relevant jurisdiction outside the Commission.
47. MTAA submits that the Applicant does not advance any cogent explanation as to the reasons for his delay over the entire period between his termination of employment on 19 December 2023 and his filing of the GP Dismissal Application on 5 March 2024. Even if the Commission accepts (which the Respondents say it should not) that the Applicant was confused as to whether his UD Application and GP Non Dismissal Application would be heard concurrently, it was clear to the Applicant at least from 28 February 2024, when he withdraw his UD Application and where his GP Non-Dismissal Application had been closed by the Commission more than a month and half prior on 9 January 2024, that neither the UD Application and the GP Non Dismissal Application would be proceeding in the Commission and he no longer had any active claims within the Commission's jurisdiction.
48. Despite this, the Applicant waited a further six days after voluntarily discontinuing his UD Application to lodge his GP Dismissal Application. He also waited 57 days after the Commission closed his GP Non-Dismissal Application to lodge his GP Dismissal Application. No explanation is provided by the Applicant for the six day and the 57 day delay (amongst the 56 days delay in total) in filing his GP Dismissal Application. Accordingly, this weighs against the Applicant's reasons for the delay and whether exceptional circumstances exist justifying the Commission's exercise of discretion to allow the Applicant further time.
49. The absence of any explanation for any part of the delay will usually weigh against an application in such an assessment38 as to the reasons for the delay and whether exceptional circumstances exist.
50. Similarly, stress, shock and confusion, in and of themselves, have been found by the Commission to not be exceptional in the context of the loss of employment39 for the purpose of determining whether the reasons for the delay in filing an application constitute exceptional circumstances. The Respondents submit the Applicant's "uncertainty" or any confusion he had as to the most appropriate application to pursue, and how to pursue this, is not an exceptional circumstance.
51. It is also well established that ignorance of one's rights is not an acceptable explanation for late lodgement and ignorance of, or unfamiliarity with, the Commission or its unfair dismissal or general protections jurisdiction, is not an exceptional circumstance. Insofar as the Applicant seeks to assert [that] he did not understand or was unclear as to what rights he had to challenge his dismissal from his employment, the Respondents say such an explanation should be given little weight and does not give rise to exceptional circumstances.
52. The Commission's website provides a wealth of clear information regarding an unfair dismissal application, a general protections application not involving dismissal and a general protections application involving dismissal, including a person's eligibility to pursue such applications. In fact, the Commission's website includes a specific information page for employees to use to check which applications may be relevant to the employee's situation. The Applicant could have taken steps to inform himself using the Commission's website of these matters and to determine the most appropriate application for his circumstances. The fact that information is available to all persons (including 24/7) on the Commission's website regarding preparation and filing of applications ought not be ignored, minimalised or diminished without very good reason.
53. Upon realising that an incorrect application has been made, it is incumbent on an applicant to act swiftly in making the correct application.
54. Insofar as the Applicant seeks, by the Applicant's Submissions, to argue that he filed incorrect applications (being the UD Application and/or the GP Non Dismissal Application), which is denied by the Respondents, even if such a submission was accepted by the Commission, it remains apparent that the Applicant still failed to taken any swift steps to file the GP Dismissal Application and waited a further period of six days from discontinuing his UD Application to file the 'correct' GP Dismissal Application.
55. The Applicant also contends that the Form F8C (i.e. the GP Non Dismissal Application) did not advise he should file a different form when dismissed45 and that this is a reason for his delay. This submission should not be accepted by the Commission given its inaccuracy. In fact, the template Form F8C application (and the same Form F8C application the Applicant ultimately lodged in December 2023) states on page i "If you were an employee and your general protections dispute relates to your dismissal from employment, you should lodge an application using the Form F8 - General protections application involving dismissal". It was therefore clear, from the Form F8C itself, in addition to the wealth of resources on the Commission's own website, that the Applicant would need to lodge a separate Form F8 application in relation to a dispute arising from his dismissal.
56. Rather than being confused, the Respondents submit that the Applicant has failed to avail himself of the publicly available information regarding the types of applications he could make, to consider which he was eligible to pursue and to determine which is applicable to his circumstances.
57. It is also well established that mere ignorance of the statutory time limit is not an exceptional circumstance.
58. The Respondents submit that, for the reasons outlined above, there are no exceptional circumstances that arise in relation to section 366(2)(a) of the FW Act for consideration by the Commission as to the Applicant's reasons for his delay.” [18]
(footnotes omitted)
During cross-examination,[19] the Applicant conceded that:
a) he was aware he had 21 days post his dismissal to dispute his dismissal, by filing a relevant application disputing his dismissal with the Commission;
b) at all relevant times had had access to the Fair Work Commission website in the period post his dismissal (to obtain relevant information about what claim/s he could make, and to access relevant application forms);[20]
c) he was aware as early as 27 December 2023 that the Respondent did not agree to engage in a conference to deal with his GP Claim;[21]
d) he was aware that the Commission’s file in respect of the GP claim was closed on 8 January 2024;
e) he was at all times aware his income was higher than the high income threshold, including (importantly) between 9 and 28 February 2024 (the latter date being the date that the Applicant discontinued his UD Claim);[22] and
f) he could not explain what he did during the six day period after he discontinued his UD Claim, and filed this Application (i.e. between 28 February 2024 and 5 March 2024).[23]
Having regard to the evidence and submissions of the parties, I do not accept that the Applicant has provided credible or “probative” evidence confirming that he was ‘prevented’ (or unable) to file his Application within 21 days of his dismissal. The reasons for delay relied upon by the Applicant simply do not, or do not sufficiently and specifically, explain his lengthy 56 day delay in the filing of his Application. I conclude that the Applicant’s reasons for delay in this case are such that they weigh against any finding as to the existence of exceptional circumstances.
Action taken by the Applicant to dispute his dismissal[24]
The Applicant was aware of his dismissal by the Respondent on the day that it took effect. He has taken various actions to dispute his dismissal.[25] In the overall circumstances of this case, I treat this criterion as a neutral consideration, that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Prejudice[26]
The next criterion to be considered is any prejudice to the Respondent occasioned by the lengthy 56 day delay. The issue of prejudice is not one that only arises from witness evidence going stale, or witnesses becoming unavailable or uncontactable. Prejudice must be seen in the context of the relevant events that have occurred. In my view, this is to be seen in the context of the Respondent having to spend time and costs in engaging with the Applicant’s GP Claim and UD Claim by filing a Form F8D response, and a Form F3 response, and otherwise dealing with the various procedural decisions and communications in respect of, or related to, each of those claims (between client, lawyer and the Commission, or between any of them). Whilst the presence of some form of prejudice arising from a delay is not uncommon, such prejudice is not a factor that automatically weighs against a finding as to the existence of exceptional circumstances.[27] In this case, I treat this criterion (as to prejudice) as a factor that does weigh against a finding as to the existence of exceptional. Prejudice to the Respondent has been unfair and detrimental, in that the Respondent has had to engage with the differing claims of the Applicant, which is prejudice that rises above and beyond the ordinary claim that has only been filed out of time (and is absent the procedural history that precedes this case).
Merits[28]
The principles stated Kyvelos v Champion Socks Pty Ltd[29] (Kyvelos), albeit in relation to a predecessor of the Act, still remains good law and are worth noting and setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[30]
In Kornicki v Telstra-Network Technology Group,[31] 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). In that case, 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.”
The Applicant says that his dismissal occurred in contravention of s.340 of the Act. In doing so, he makes various contentions as to fact and law, and defines himself as both whistleblower and victim.
The Respondent denies the Applicant’s claims as to contravention, and says that the Applicant was lawfully dismissed for misconduct.
The Commission “should not embark on a detailed consideration of [a] substantive case” for the purpose of determining whether to grant an extension of time to an applicant. In this case, the merits of the Application were not fully tested before me. I note that all of the evidence as to the substantive merits of the Application (from both the Applicant and the Respondent) is not before me. Whilst one might say that the Applicant’s case has merit (or is arguable), one cannot otherwise say that the Respondent’s defences (even taking into account issues of reverse onus) are unarguable, or are absent merit. In my view, the merits of the Application in this case, and the strength of the Respondent’s defence and counter assertions, are both arguable.
But the fact that something is arguable does not mean that it has reasonable prospects of success, or is unequivocally meritorious. It simply means that adverse action (i.e. dismissal) has occurred, and an Applicant asserts that he or she was subjected to such adverse action for a prohibited reason. The rubber hits the road only where the adverse action is taken “because of” a prohibited reason, and in most cases the resolution of that issue will be subject to determinations as to witness credibility, tested against documentary or other objective evidence, and factual findings. As SDP Richards stated in Wilson v Woolworths[32]:
“… the merits of the application have not been canvassed through the proper formal determinative process by which evidence is taken under oath and which is further adduced through the machinery of cross-examination and re-examination.”[33]
In summary, to reach a conclusion beyond the threshold of ‘arguable’ in this case would require close scrutiny in a contested hearing, which is completely unwarranted in an out of time (or other interlocutory) hearing (and has not occurred in this case before me).[34] I therefore treat merits of the Application in this case as no more than a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[35]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there are the same, or similar, characteristics and/or circumstances.[36]
Both parties put forward or otherwise referred to cases that they assert hold analogies with this case. However, I am not aware of any employees in a similar position to the Applicant, or cases, from a true comparator perspective, where there are the same, or similar, characteristics and/or circumstances as those of the Applicant. Further, even having regard to the previous out of time decisions that I am or have been aware of, none of those cases are on all fours with the specific facts and circumstances of this case. I therefore treat this criterion as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Conclusion
I have taken into account and considered each of the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant of an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis (i.e. two criteria weigh against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[37]
On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence “exceptional circumstances” in this case as that term has been described or defined in Nulty[38]. In view of this finding, there is no power at law for me to exercise my discretion to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 5 March 2024 is dismissed, and an Order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant (Mr William Ko) appeared for himself.
Ms Alexandra Abbott, Senior Associate, HWL Ebsworth Lawyers, appeared with permission for the Respondent (Medical Technology Association of Australia Limited).
[1] See ss.366(1)(b) and (2) of the Fair Work Act 2009 (Act).
[2] See Termination of Employment letter dated 19 December 2023, Annexure ‘A’ to Form F8A filed 28 March 2024.
[3] See email from Chambers to the parties dated 7 May 2024, granting permission for the Respondent to be legally represented generally in these proceedings (pursuant to s.596 of the Fair Work Act 2009). See also Respondent’s written submissions on permission, dated 2 May 2024.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, at [21].
[5] [2011] FWAFB 975.
[6] Ibid at [13]-[15].
[7] [2018] FWCFB 901.
[8] Ibid, at [17], [19], [38]-[39].
[9] (1964) 38 ALJR 293.
[10] Ibid, at 301.
[11] Section 366(2)(a) of the Act.
[12] [2021] FWC 3903.
[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39]-[40].
[14] Ibid, at [40].
[15] Shaw v ANZ Bank[2015] FWCFB 287, at [12].
[16] This was 21 days after the Applicant’s dismissal on 19 December 2023.
[17] Transcript, PN54. See also, Transcript, PN97 (did not receive legal advice or have the opportunity to seek legal advice) and PN105 (genuine belief that he had filed within 21 days, just filed the wrong application). Note Applicant’s oral opening and closing submissions at Transcript, PN10-PN23, and PN184-PN187.
[18] Respondent’s Submissions, 2 May 2024, at [25]-[26], [37], and [39]-[58]. Also note Respondent’s oral closing submissions at Transcript, PN151-PN182.
[19] Transcript, PN42-PN106.
[20] Ibid, PN47.
[21] Ibid, PN57-PN58.
[22] Ibid, PN65-PN69, and PN76-PN91.
[23] Ibid, PN70-PN74.
[24] Section 366(2)(b) of the Act.
[25] See paragraph [15] of this decision.
[26] Section 366(2)(c) of the Act.
[27] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[28] Section 366(2)(d) of the Act.
[29] (1995) 67 IR 298.
[30] Ibid, at 299 to 300.
[31] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[32] [2010] FWA 2480.
[33] Ibid, at [23].
[34] Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[35] Section 366(2)(e) of the Act.
[36] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37]; Perry v Rio Tinto Shipping[2016] FWCFB 6963, at [41].
[37] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[38] [2011] FWAFB 975, at [13].
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