1
Fair Work Act 2009
s.365—General protections
Helena Miller
v
Allianz Insurance Australia Ltd T/A Allianz
(C2016/3255)
DEPUTY PRESIDENT LAWRENCE SYDNEY, 15 JUNE 2016
Application to deal with contraventions involving dismissal.
[1] On 5 April 2016 Ms Helena Miller (the Applicant) lodged a General Protections
application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The
application alleged that the Applicant had been dismissed by Allianz Insurance Australia Ltd
T/A Allianz (the Respondent).
[2] The Applicant commenced employment with the Respondent on 15 February 2010.
The Applicant was a Case Manager in the Respondent’s workers compensation area, in
Newcastle, employed on a part-time basis. She says that she was dismissed on 20 January
2016 and the dismissal took effect on that day.
[3] The application therefore was lodged 55 days out of time.
Alleged Contravention
[4] The Applicant submits that he was dismissed because the Respondent did not approve
of the proposed basis of her return to work from extended medical leave. Breaches of ss.340,
345, 351 and 352 are alleged.
Respondent’s Submissions
[5] The Respondent denies these allegations and further denies that there has been a
breach of the General Protections provisions of the Act.
[6] The Respondent states that the Applicant was dismissed because it was not able to
operationally accommodate the hours sought by the Applicant. The Respondent also relies on
a number of performance issues.
Relevant Legislation
[7] Section 366 of the Act provides:
[2016] FWC 3835 [Note: An appeal pursuant to s.604 (C2016/4331) was
lodged against this decision - refer to Full Bench decision dated 26 August
2016 [[2016] FWCFB 5472] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB5472.htm
[2016] FWC 3835
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366 Time for application
366(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
366(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.”
Approach of the Commission
[8] The considerations relevant to the assessment of whether exceptional circumstances
exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s
Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1;
(Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following
useful summary was provided in Nulty:
“[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.”
[9] The onus of establishing exceptional circumstances is on the Applicant who needs to
provide a credible reason for the whole of the period that the application was delayed. (See:
Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] 197 IR 403).
[10] This point was emphasised by the Full Bench in the recent decision of Diotti v
Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 which,
although concerned with the unfair dismissal application, contained the following statement,
which is equally applicable to a s.365 application:
[2016] FWC 3835
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“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia
and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 (Shaw
and ANZ), at paragraph [12] the majority decision states:
‘[12] This decision makes an important point which we consider deserves re-
emphasising. The delay required to be considered is the period beyond the
prescribed 21 day period for lodging an application. It does not include the
period from the date of the dismissal to the end of the 21 day period.’
[30] This extract must be read in its entirety. The decision goes on to state:
‘[12] … The circumstances from the time of the dismissal must be
considered in order to determine whether there is a reason for the delay beyond
the 21 day period and ultimately whether that reason constitutes exceptional
circumstances.’
[31] Hence, the decision emphasised that while the delay to be considered is the
period subsequent to the expiration of 21 days, the circumstances from the time of the
dismissal must be considered in determining whether the reason for the delay
constitutes exceptional circumstances. For example if an applicant is in hospital for the
first 20 days of the 21 day period this would be a relevant consideration if the
application was filed 2 days out of time as occurred in this matter. The reason for the
delay by reference to the circumstances from the date the dismissal took effect is as
expressed in Shaw and ANZ the correct approach.”
Commission Proceedings
[11] On 19 April 2016, the parties were advised by the Fair Work Commission (the
Commission) that the application had not been made within 21 days of the dismissal taking
effect. Directions were issued for the filing of witness statements and submissions as to
whether the Commission should grant further time for lodgement pursuant to s.366(2) of the
Act. The matter was listed for hearing on 11 May 2016.
[12] The Applicant was self-represented. The Respondent was represented by
Mr K. Brotherson, solicitor, who was granted permission to appear pursuant to s.596.
Matters to be taken into account pursuant to s.366(2)
[13] In deciding whether to allow a further period for an application to be made the
Commission must take into account the matters set out in s.366(2) above. I will deal with each
of those matters separately.
(a) The reason for the delay
[14] The Applicant lodged an unfair dismissal claim pursuant to s.394 of the Act on
1 February 2016. This matter was conciliated but not settled on 17 March 2016. The
Applicant decided that a General Protection application was more appropriate and she lodged
this application. The s.394 application was withdrawn.
[2016] FWC 3835
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[15] No other explanation for the delay in lodging the General protection application 55
days out of time (was made ?). The fact that an applicant decides belatedly that an application
under another section of the act would be better cannot constitute exceptional circumstances.
[16] Accordingly, the reasons for delay cited by the Applicant fall short of establishing
exceptional circumstances.
(b) Any action taken by the person to dispute the dismissal
[17] The Applicant took action to challenge the dismissal.
[18] However, I am not satisfied that this is a matter of significance in the circumstances of
this case.
(c) Prejudice to the employer (including prejudice caused by the delay)
[19] Given the overall facts, the Respondent would be prejudiced by the time and costs
involved in further litigation.
(d) Merits of the application
[20] Both the Applicant and the Respondent set out in detail the Applicant’s employment
and medical history. The Applicant had not been at work since December 2014. The
Respondent says that it could not accommodate the Applicant’s senior case manager role on a
one day per week basis, which is what the Applicant sought.
[21] It appears that the Applicant currently has a workers compensation claim proceeding.
The basis of a General Protection claim, which has a chance of succeeding in Court, is not
obvious from the evidence that has been filed. Although the Applicant’s medical and family
circumstances have been difficult, the Respondent has attempted to accommodate them for a
number of years. It would rely on its operational requirements, to resist a claim for General
Protections discrimination.
[22] I do not consider that the merits of the application give weight to the existence of
exceptional circumstances.
(e) Fairness as between the person and other persons in a like position
[23] This factor was not addressed and has not been taken into account.
Conclusion and Order
[24] Having considered all of the factors set out in s.366(2), I am not satisfied that there are
exceptional circumstances warranting the granting of a further period for the making of an
application under s.366(2). Accordingly, the application is dismissed.
[2016] FWC 3835
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Order
Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Helena Miller
under s.365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
H. Miller, Applicant;
K. Brotherson, solicitor for the Respondent.
Hearing details:
2016
Telephone Hearing:
May 11.
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