1
Fair Work Act 2009
s.365—General protections
Sandra McCudden
v
Omega Pharma Australia Pty Ltd T/A Omega Pharma
(C2013/7681)
SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 26 JUNE 2014
Application to deal with contraventions involving dismissal - extension of time for filing
application.
[1] This decision relates to an application filed by Ms Sandra McCudden (the applicant)
under s.365 of the Fair Work Act 2009 (the Act). The application is for the Fair Work
Commission (the Commission) to deal with a general protections dispute the applicant has
with Omega Pharma Australia Pty Ltd (the respondent). The application was filed outside the
statutory time limit stipulated by s.366(1)(a) of the Act. The respondent opposes the time for
filing the application being extended. The matter was referred to me to determine whether an
extension of time should be granted.
[2] In the hearing Mr Bolger, a barrister, appeared on behalf of the applicant and Mr
Eastman, also a barrister, appeared for the respondent. Pursuant to s.596(2) of the Act, I
granted permission for each party to be represented by a lawyer as I formed the view that such
representation would enable the matter to be dealt with more efficiently, taking into account
the complexity of the matter.
[3] Both parties filed written submissions. The applicant was called to give evidence as
was her solicitor, Mr Roger Betts, of David Landa Stewart Solicitors. The respondent called
Mr David Price, a Senior Employee Relations Consultant acting on behalf of the respondent.
Each of the witnesses was cross examined.
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DECISION
E AUSTRALIA FairWork Commission
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The Relevant Legislative Provisions
[4] Part 3-1 of the Act deals with general workplace protections. By virtue of those
provisions a person must not take adverse action against another person because they have a
workplace right, they exercise that workplace right, or propose to exercise that workplace
right. The meaning of “workplace right” is defined by s.341 of the Act. One right relates to
the making of a request under Division 4 of Part 2-2 of the Act about flexible working
arrangements. If an employee has been dismissed, and it is alleged that the dismissal was in
contravention of Part 3-1 of the Act, the employee may make an application under s.365 of
the Act for the Commission to deal with the dispute.
[5] Section 366 provides the statutory time limit within which an application must be
made. When the Act came into operation, s.366(1)(a) required that an application must be
made within 60 days after the dismissal took effect. That provision was amended by the Fair
Work Amendment Act 2012 (2012 Amendment Act) so as to require an application to be made
within 21 days after the dismissal took effect. The amendment applies to dismissals that took
effect after 1 January 2013.1
[6] Sections 366(1)(b) and 366(2) provide the Commission with a discretion to grant an
extension of time for filing if satisfied that there are exceptional circumstances. Section
366(2) is in these terms:
“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.”
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[7] A Full Bench of Fair Work Australia (as it was then), in Cheyne Leanne Nulty v Blue
Star Group, considered authorities regarding the term “exceptional circumstances” in the
context of an application filed under s.366 of the Act and 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 time limit in s.366(1)(a) is not an exceptional
circumstance. Indeed, unfortunately, it would seem to be all too common for
dismissed employees to be unaware of the time limits imposed in relation to making
an application for an unfair dismissal remedy or a general protections FWA
application. The parliament has chosen to condition the discretion to extend time for
making such applications on the existence of “exceptional circumstances”. In doing so
the parliament must be presumed to have proceeded on the basis that an employee who
is aggrieved at being dismissed ordinarily ought be expected to seek out information
on any remedy they may have in a timely fashion such that delay on account of
ignorance of the statutory time limit is not, of itself, 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
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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.”2
The evidence - my findings
[8] Ms McCudden commenced employment with the respondent on a full-time basis on 1
April 2012. After returning from a period of maternity leave, she requested a change to her
working arrangements such that she could work from home one day a week, in order to look
after her newborn daughter. The request was made on 30 September 2013 to Ms Susannah
Mills, the respondent’s General Manager.
[9] On 14 October 2013, the applicant was advised that her position had been made
redundant, with immediate effect, as the business was facing financial pressure and it was
necessary to reorganise its employees.
[10] On 25 October 2013, the applicant had a meeting with Mr Betts. She advised him she
did not think her redundancy was bona fide. Mr Betts advised her about making an unfair
dismissal claim challenging the bona fides of her dismissal being a case of genuine
redundancy. He gave her advice about the 21 day time limit to file a s.394 application. He
also gave her advice about a general protections claim under s.365 of the Act. The applicant
was given advice about these two options which she could pursue and told they were both
viable options. The advantages and disadvantages of each claim were explained to her.
[11] The applicant was told she had reasonable prospects in relation to the unfair dismissal
claim and a “prima facie case” in relation to a general protections claim. She was told she had
60 days to file a general protections claim. The applicant recalled she was told about both of
the time limits in the meeting with Mr Betts. Mr Betts does not now recall whether it was in
the meeting on 25 October 2013 that he informed the applicant that she had 60 days to pursue
a general protections claim or shortly after. In any event, he said he certainly had informed
her of that time limit prior to filing the s.394 application on her behalf.
[12] The applicant decided on 25 October 2013 that she would pursue the s.394 claim. Her
decision to pursue that claim was not motivated or informed in any way by an understanding
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she had 60 days to issue a general protections claim. She had considered the two options and
decided to pursue the s.394 application. That application, under s.394 of the Act for an unfair
dismissal remedy, was filed on 29 October 2013.
[13] On 6 December, there was a meeting between the applicant, Mr Bolger and Mr Betts.
The applicant was told she had a viable unfair dismissal claim. It was not suggested that her
claim was hopeless or she had no chance of winning. She was advised to attend a telephone
conference and see what happened. At the 6 December meeting the applicant resolved, and
instructed her solicitor and barrister, that if she could not achieve a conciliated settlement in
the forthcoming conference on her s.394 she would withdraw that claim and pursue a s.365
claim.
[14] The s.394 conference was held by way of a telephone conciliation with a Commission
staff member on 10 December 2013. The applicant was in attendance at that conference as
was Mr Betts. He said he indicated that the applicant believed her redundancy was a sham
and that she should be compensated. In considering that compensation he said account should
be taken of a possible adverse action claim and the applicant would need to be compensated
for giving up the right to pursue such claim. He recalled the conciliator saying that adverse
action was irrelevant to the unfair dismissal claim and everyone should concentrate on that
matter. He recalled no further discussion about the adverse action claim. He recalled no
comment about the time limit for a s.365 claim being made by either Mr Price or the
conciliator. The applicant recalls that in the s.394 conference the fact she had a potential
general protections claim was raised. She did not recall any discussions about time limits.
[15] Mr Price represented the respondent in the s.394 conference. No other person from
the respondent participated. Mr Price made notes during the conference in relation to matters
that were discussed. The notes were in evidence. At the start of the conference the applicant
was asked to outline the nature of her claim and in that context Mr Betts mentioned the
potential for a general protections claim to be pursued. Mr Price then said that the applicant
may “have missed the boat there” and that the time for filing a general protections application
was 21 days. He said the time limit had changed from 60 to 21 days at the start of the year.
[16] To the extent there is a disagreement between the applicant and Mr Bett’s version
about what was said in the s.394 conference I prefer the evidence of Mr Price. I also accept
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Mr Price’s evidence that the conciliator said that his, Mr Price’s comment about the 21 day
time limit was correct. I therefore find that at this conference the applicant and her solicitor
knew or should have known that a s.365 application, if filed, would be out of time.
[17] I should not be taken to make an adverse finding about Mr Betts veracity. I do not. I
do however prefer the evidence of Mr Price. He is more experienced in these applications
than Mr Betts and better understood the legislation and Commission procedures. I assessed
Mr Price’s recollection of what was said in the conference to be better than the applicant’s
and Mr Betts and, in doing so, I also took into account his contemporaneous notes which are
consistent with his version of what was said.
[18] After the conciliation conference a discussion was had between Mr Bolger, Mr Betts
and the applicant. It is unclear as to how long Mr Betts remained in the discussion as he left
at some stage to attend another commitment. The applicant instructed Mr Bolger to withdraw
her unfair dismissal claim and to file a claim under s.365. That was not done on the basis that
she was advised her unfair dismissal claim was bad or hopeless or that she could not win that
claim. She understood that her unfair dismissal claim was viable and it may be necessary for
her to speak to some people as they may be potential witnesses. It was her preference to
pursue a s.365 application instead the one filed under s.394. The s.365 was considered to be
the better claim to pursue.
[19] On 13 December, the applicant discontinued her s.394 application and filed a s.365
application for the Commission deal with a general protections dispute. By this time, the
s.365 application was some 39 days out of time. In her s.365 application the applicant asserts
that her redundancy was not a genuine redundancy. This same assertion was pleaded in her
s.394 application.
[20] The parties came before Commissioner Cambridge on 3 February 2014 for a
conference during which the dispute was not able to be resolved. The issue about the time
limit was raised at the conference with Mr Betts indicating that he believed it was a 60 day
time limit and the Commissioner correcting him indicating that it was a 21 day time limit. Mr
Betts said he had undertaken research and he believed the time was 60 days. Mr Price was
surprised this was brought up as it had been addressed in the conference on 10 December
2013. Subsequently, the matter was referred to me to deal with the extension of time point.
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Applicant’s Submissions - a summary
[21] The applicant submits that there are exceptional circumstances that warrant the grant
of an extension of time for the filing of her application.
[22] The applicant’s reason for the delay in filing her application is an error made by her
legal representative and she is blameless in the circumstances. She had promptly sought legal
assistance after her dismissal and relied on the advice given to her about the statutory time
limits. She acted within the time limit to file an application for an unfair dismissal remedy
and had understood that an application under s.365 must be filed within 60 days from the
dismissal taking effect. Mr Betts advice to the applicant about the s.365 time limit was based
upon a version of s.366 of the Act on the Australasian Legal Information Institute (AustLII)
website, which he had asked an assistant in his office to check for him.
[23] Mr Bolger submitted that the applicant’s conduct could not be criticised. He conceded
that had she been aware that the time limit to file a general protections claim was also 21
days, but nonetheless elected to pursue an application for an unfair dismissal remedy, and
subsequently withdrawn it to file a general protections claim, it could be said that she was not
blameless for the delay in filing. In the circumstances of this case however, the applicant
acted within the relevant time frame to seek legal advice and pursued legal action based upon
that erroneous advice.
[24] The applicant submits that the respondent was on notice that she disputed the
termination of her employment as she had filed an application for an unfair dismissal remedy
within 21 days after her dismissal rook effect. She submits that the respondent would suffer
no prejudice if an extension were granted.
[25] The applicant submits that the respondent took adverse action against her by
terminating her employment. She alleges that the decision to dismiss her was made because
she had a workplace right under s.65(1) to request flexible working arrangements, she
proposed to exercise that workplace right and/or her employment was terminated to prevent
her from exercising a workplace right. She submits that this is not a case of genuine
redundancy.
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[26] The applicant assessed that the merits of the case do not count against her. Once it is
established on the facts that the respondent took adverse action, it is for the respondent to
discharge the onus of proof in establishing that the action taken was not for a reason that
would contravene the Act.3 An employer breaches s.340 of the Act where the employee’s
workplace right comprises a “substantial and operative” reason for the employer’s action.4
[27] The applicant did not rely upon a consideration of whether there was fairness between
Ms McCudden and other persons in a like position.
Respondent’s Submissions - a summary
[28] The respondent submits that an extension of time should not be granted as there are no
exceptional circumstances on the facts of this case.
[29] The respondent submits that although the applicant’s representative erred in the advice
he gave Ms McCudden about the s.365 time limit, the applicant is not blameless in the
requisite sense as she elected to file an application under s.394 of the Act. That decision was
made pursuant to advice from Mr Betts to the effect that she had two viable options and she
was informed of the advantages and disadvantages of each. The applicant does not argue that
but for Mr Betts’ advice about the 60 day time limit, the applicant would not have elected to
file a dismissal for an unfair dismissal remedy. The respondent submits that such an
argument would indeed constitute an admission to forum shopping, which is to be
discouraged. Mr Betts erroneous advice in October 2013 as to the s.365 time limit did not
cause any relevant delay. The applicant chose to file the s.394. The respondent points to the
absence of any evidence suggesting that Ms McCudden would have acted differently had she
known of the amended statutory time limit for filing a general protections claim.
[30] The respondent characterises the applicant’s actions as an election to file an
application for an unfair dismissal remedy and a subsequent election to withdraw that
application and file, instead, a general protections claim. It submits that the applicant
changing her mind about which application to pursue does not constitute exceptional
circumstances.
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[31] There is no suggestion that the applicant abandoned her s.394 application because she
was advised it was not a viable claim or doomed. That is, she was not advised that her
dismissal was a case of genuine redundancy and was without merit. The contrary appears to
be the case. In fact she again pleaded in her s.365 application that her dismissal was not a case
of genuine redundancy.
[32] The decision to abandon a viable claim under s.394 in preference to pursuing a claim
under s.365 which claim was out of time does not constitute exceptional circumstances. It is
an approach to proceedings under the Act which is to be discouraged.
[33] The respondent submits that the action taken by the applicant to dispute the dismissal
by filing an application for an unfair dismissal remedy does not demonstrate any exceptional
circumstances.
[34] The respondent does not assert that it has suffered any prejudice caused by the delay.
Mr Eastman did, however, submit that had the applicant commenced her general protections
claim within the 21 day time limit, the respondent would not have been put to the time and
expense of having to answer two separate legal claims.
[35] The respondent submits that if it were conceded by the applicant that her application
under s.394 was “hopeless”, because the termination of her employment was a case of
genuine redundancy, then it necessarily follows that her general protections claim is without
merit. In such circumstances, the applicant would be unable to establish that the adverse
action taken against her was because she exercised a workplace right.
[36] The respondent submits that a consideration as to fairness between the applicant and
other persons in a like position does not appear to apply.
Conclusion
[37] With the exception of the respondents argument about considerations I should take
into account by reference to s.366(2)(d), I accept the respondent submissions. For the reasons
advocated I am not persuaded there are exceptional circumstances warranting the extension of
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time. I should summarise the matters I have taken into account by reference to the provisions
of s.366(2).
[38] First, the reason for the delay. The applicant had advice in October 2013 she had two
viable options and was advised about the advantages and disadvantages of each of them. She
made her own decision which one to pursue. She instructed her solicitors to issue the s.394
application and not the s.365 and she did that either at the end of the meeting of 25 October
2013 or very shortly thereafter.
[39] The fact Mr Betts was in error in advising the applicant that a s.365 application was to
be filed within 60 days of her dismissal did not inform the choice she made. She decided, of
her two options, she would pursue her s.394 application.
[40] The applicant is therefore not blameless in relation to the way in which she chose to
proceed. The reason she subsequently discontinued the s.394 application and commenced the
s.365 application is she made a decision it was the better course to take. No other reason was
given by her. She abandoned a viable claim with her “eyes open”. There is no evidence she
was told her s.394 was hopeless or unlikely to succeed. These circumstances do not
constitute an acceptable explanation for the delay.
[41] Additionally, being unaware of time limits is not of itself an acceptable explanation for
a delay. In any event, I have found that as at the 10 December 2013 conference attended by
the applicant and her solicitor each of them knew, or should have known, there would be an
issue about any s.365 claim she may make being out of time.
[42] I considered whether there was any action taken by the applicant to dispute her
dismissal. Clearly she had filed a s.394 application. The respondent was therefore on notice
that the applicant disputed the termination of her employment.
[43] I considered the issue of prejudice to the respondent (including prejudice caused by
the delay). There is no evidence that the respondent would suffer any prejudice over and
above that which will inevitably be associated with its having to defend a second round of
proceedings.
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[44] I turn next to the merits of the s.365 application. As I have earlier noted, the
respondent submits that if it were conceded by the applicant that her application under s.394
was “hopeless”, because the termination of her employment was a case of genuine
redundancy, then her general protections claim, relying on the same challenge to the
genuineness of the redundancy will also be without merit. In such circumstances, the
applicant would be unable to establish that the adverse action taken against her was because
she exercised a workplace right. However, in my opinion, as the applicant does not make the
concession upon which this submission is based, it does not persuade me to make any adverse
finding against the applicant in respect to the merits of her s.365 claim. I find that the
application is not without merit.
[45] As for the consideration of fairness as between the person and other persons in a like
position, neither party addressed this subsection. It is a neutral consideration in this matter.
[46] I am not persuaded there are exceptional circumstances warranting the grant of an
extension of time to the applicant to file her s.365 application. The application filed under
s.365 is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
C Bolger of Counsel for Ms Sandra McCudden
M Eastman of Counsel for Omega Pharma Australia Pty Ltd trading as Omega Pharma
Hearing details:
2014.
Sydney:
March 27.
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1 See Schedule 3, Part 5, item 9 of the Act and s.2 of the Fair Work Amendment Act 2012.
2 [2011] FWAFB 975, PR506750.
3 See s.361 of the Act.
4 Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500 at
paragraphs 104, and 126 – 128.
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Price code C, PR552405
