1
Fair Work Act
2009
s.365—General protections
Periklis Stogiannidis
v
Victorian Frozen Food Distributors P/L T/A Richmond Oysters
(C2017/6538)
COMMISSIONER PLATT ADELAIDE, 22 DECEMBER 2017
Application to deal with contraventions involving dismissal – extension of time – application
dismissed.
[1] Mr Periklis Stogiannidis has lodged an application pursuant to s.365 of the Fair
Work Act 2009 (the Act) alleging that his employment was terminated by Victorian Frozen
Food Distributors P/L T/A Richmond Oysters (Richmond Oysters) on 21 September 2017 in
contravention of the general protections provisions of the Act.
[2] This application was lodged on 24 November 2017.
[3] Mr Stogiannidis’ application identified that it was made beyond 21 days from the date
of dismissal and provided the following explanation:
“1. Reason for the delay and actions taken to dispute the dismissal
I made an unfair dismissal application (FWC Reference: U2017/10867) within 21 days
of my dismissal taking effect. I am making this application 42 days after the 21 days’
timeframe because I did not know my rights under general protections claim at the
time I lodged my unfair dismissal claim. I could not afford legal representatives at that
time and I genuinely believed that unfair dismissal was the right action to pursue based
on the circumstances of my case and since I acted alone, I believed it could be settled
through unfair dismissal conciliation (Parasad v Alcatel-Lucent Australia [2010] FWA
7804). I needed to seek legal advice, after failing to negotiate with the respondents
through mediation and an arbitration conference was listed on 18 and 19 January 2018.
I did so at the start of November 2017. After obtaining a proper legal advice, I filed
Form f1 application with FWA on 21 November 2017 to substitute my unfair
dismissal claim with general protections claim. Instructions were given by FWA on 23
November 2017 to pursue this claim pursuant to the full bench decision in Peter
Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660.
2. Prejudice to the employer
[2017] FWC 7013[Note: This decision and the associated order has been
quashed - refer to Full Bench decision dated 16 February 2018 [[2018]
FWCFB 901]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr599088.htm
[2017] FWC 7013
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I submit that there is little prejudice for the employer in having to defend this
application because they are already defending the unfair dismissal claim at this stage
and they have not been able to provide any satisfactory reasons as to why they
dismissal took place. Further, the respondents are not yet required to submit their
arguments in response to my outline of argument under unfair dismissal claim as the
latter has not been served on them due to the change in the course of action pursued,
before the date, no later than which I am required to submit my outline of argument.
3. Merits of the application
I submit that the merits of this application far outweigh the prejudice to the
respondents because I have enough evidence to prove the circumstances which make it
highly unlikely that the reason for the dismissal, ‘shortage of work’ is the genuine and
real reason for dismissal. I further submit that in the case that matter goes to full trial,
the burden of proof is on the respondents (s 361(1) FWA) to show that ‘shortage of
work’ is the reason why they dismissed me.
4. Fairness
Having made all necessary and reasonable attempts to resolve/dispute this matter to
my fullest capacity, and in having to withdraw the unfair dismissal claim, which was
made within 21 days’ timeframe, to pursue a more appropriate claim under this
application, I will be unfairly denied of my right to claim compensation if this
application is to also to be rejected on procedural grounds.”
[4] Richmond Oysters filed a form F8A Employer Response on 5 December 2017
which raised a jurisdictional objection on the basis that the application was lodged out of time
and Mr Stogiannidis had signed a release whereby he promised to take no further action. This
decision only deals with the extension of time issue.
[5] On 8 December 2017, the Commission corresponded with the parties and advised that
the extension of time issue would be considered at a telephone conference on 22 December
2017. Information about the extension of time issue and the factors that I am required to
take into account in considering this matter, were provided to the parties. Mr Stogiannidis and
Richmond Oysters were directed to provide an outline of argument by 15 December 2017.
[6] Mr Stogiannidis provided a written submission which is summarised as follows:
Mr Stogiannidis commenced employment with Richmond Oysters on 24 August
2014 as a truck driver.
In July 2017, Mr Stogiannidis suffered a work-related ankle injury and was unable
to attend his employment for approximately two months. Mr Stogiannidis was
declared fit to return to work on 21 September 2017.
Upon returning to work, Mr Stogiannidis was told that there was no work available
for him. His employment was terminated.
Mr Stogiannidis lodged an unfair dismissal application (U2017/10867) on 8
October 2017. The application was made within the 21 day statutory time limit.
The unfair dismissal matter proceeded to conciliation and was subsequently listed
for arbitration on 18 and 19 January 2018.
[2017] FWC 7013
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At the start of November 2017, after obtaining proper legal advice, Mr Stogiannidis
lodged a form F1 application requesting that his unfair dismissal application be
substituted for a general protections application.
On 23 November 2017 instructions were given by FWA (sic) to pursue the claim
pursuant to the Full Bench decision in Peter Ioannou v Northern Belting Services
Pty Ltd.1
The reason he made an unfair dismissal application instead of a general protections
application was due to a lack of knowledge about the differences between each
application, being unaware of his general protections rights at the time that the
unfair dismissal application was lodged and being unable to afford legal
representation at the time that the unfair dismissal application was lodged.
He has disputed the dismissal from an early point in time.2
There is little prejudice to the employer in having to defend the application because
they are already defending the unfair dismissal application.
The merits of the application far outweigh the prejudice to the employer.
[7] Richmond Oysters provided a written submission which is summarised as follows:
Pursuant to s.725 of the Act, the Commission has no jurisdiction to hear the general
protections application as the unfair dismissal application is still afoot.
In the alternative if the extension of time issue is considered, there are no
exceptional circumstances.
The unfair dismissal application was the subject of a conciliation conference on or
about 2 November 2017. The conciliation was unsuccessful and the matter was set
down for arbitration on 18 and 19 January 2018. It was at this point that Mr
Stogiannidis attempted to amend the unfair dismissal application.
Mr Stogiannidis has not provided a reason why he cannot pursue an unfair
dismissal application.
Mr Stogiannidis has failed to explain why he delayed seeking proper legal advice
until after attending the conciliation conference some two months after the
dismissal.
There is prejudice to Richmond Oysters who have incurred time and expense in
lodging a response and participating in a conciliation conference.
[8] A hearing was conducted by way of telephone conference on 22 December 2017. A
sound file record of the telephone conference was kept. Mr Peter Azam of Mendis Gibson
Lawyers represented Mr Stogiannidis and Mr Arthur Bourandanis of Frenkel Partners
Lawyers represented Richmond Oysters. Permission was granted pursuant to s.596(2)(a) of
the Act.
[9] Mr Azam relied on the written submission and in respect of the matters canvassed in
paragraph 9(f) of his submission, advised that Mr Stogiannidis consulted with him on 3
November 2017, that he considered the matters and provided his advice on 10 November
2017. Mr Azam stated that his advice to Mr Stogiannidis was that a general protections claim
should be lodged.
[10] Ms Stogiannidis was sworn and gave evidence confirming the submission made by Mr
Azam and advised that the delay between the date he received Mr Azam’s advice and the
lodgement of this general protections application on 24 November 2017 was due to the cost of
[2017] FWC 7013
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making the application, him seeking information as to the legal costs which would be
involved and that he took his time.
[11] At the telephone conference, Richmond Oysters relied on the submissions filed and
contended that there were no exceptional circumstances on the basis that the delay had not
been adequately explained.
[12] Section 366 of the Act relevantly states:
“Time for application
(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).
(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.”
[13] This general protections application by Mr Stogiannidis was made 43 days outside
of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[14] I have considered the provisions of s.366(2) of the Act in the context of the Full
Bench decision in Nulty v Blue Star Group Pty Ltd3 which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional
circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of
FWA considered the meaning of the expression “exceptional circumstances” in
s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary
as “forming an exception or unusual instance; unusual; extraordinary.” We can
apprehend no reason for giving the word a meaning other than its ordinary
meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of
principle is equally applicable to s.366(2).
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s26.html#subsection
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s365.html
[2017] FWC 7013
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[12] The ordinary meaning of the expression “exceptional circumstances” was
considered by Rares J in Ho v Professional Services Review Committee No 295, a
case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour
observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires
consideration of all the circumstances. In Griffiths v The Queen (1989) 167
CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision
which entitled either a parole board or a court to specify a shorter non-parole
period than that required under another section only if it determined that the
circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they
may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the
relevant circumstances in combination was a failure to consider matters which
were relevant to the exercise of the discretion under the section (167 CLR at
379). Deane J, (with whom Gaudron and McHugh JJ expressed their
concurrence on this point, albeit that they were dissenting) explained that the
power under consideration allowed departure from the norm only in the
exceptional or special case where the circumstances justified it (167 CLR at
383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J
referred with approval to what Lord Bingham of Cornhill CJ had said in R v
Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English
adjective, and not as a term of art. It describes a circumstance which is
such as to form an exception, which is out of the ordinary course, or
unusual, or special, or uncommon. To be exceptional a circumstance
need not be unique, or unprecedented, or very rare; but it cannot be one
that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and
moon appear in the sky everyday and there is nothing exceptional about seeing
them both simultaneously during day time. But an eclipse, whether lunar or
solar, is exceptional, even though it can be predicted, because it is outside the
usual course of events.
27. 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’ in s 106KA(2) includes a combination of factors
which, when viewed together, may reasonably be seen as producing a situation
[2017] FWC 7013
6
which is out of the ordinary course, unusual, special or uncommon. And, the
section is directed to the circumstances of the actual practitioner, not a
hypothetical being, when he or she initiates or renders the services.”
[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.”
[15] It is useful to set out the chronology of the unfair dismissal and this application.
[16] On 8 October 2017, an unfair dismissal application (U2017/10867) was lodged by the
applicant himself.
[17] On 2 November 2017, a conciliation conference was conducted but did not resolve the
matter.
[18] On 3 November 2017, Mr Stogiannidis first met with his lawyer.
[19] On 6 November 2017, the unfair dismissal application was listed by the Commission
for arbitration and on the same day Mr Stogiannidis’ representative lodged a Notice of
Representative Commencing to Act.
[20] On 10 November 2017, Mr Stogiannidis was advised by his lawyer to lodge a general
protections application.
[21] On 21 November 2017, Mr Stogiannidis’ representative lodged a form F1 application
to amend the unfair dismissal application to a general protections application.
[22] On 23 November 2017, Commissioner Bissett sent a letter to Mr Stogiannidis bringing
to his attention the Full Bench decision of Ioannou v Northern Belting Services Pty Ltd 4 and
requested that he advise by noon on 29 November 2017 whether he wished to pursue the
unfair dismissal application.
[23] At 13.32pm on 24 November 2017, the Commission received a form F50 Notice of
Discontinuance discontinuing the unfair dismissal application.
[24] At 15.45pm on 24 November 2017 this general protection claim was lodged.
[2017] FWC 7013
7
[25] Richmond Oysters have raised an objection that pursuant to s.725 of the Act, Mr
Stogiannidis cannot pursue a general protections application as the unfair dismissal
application is still afoot. However, on 24 November 2017 the Commission received an F50
Notice of Discontinuance for the unfair dismissal matter U2017/10867 and accordingly this
objection has no grounds.
[26] I accept that Mr Stogiannidis pursued his claim that he was improperly dismissed by
his employer. I accept that the distinctions between an unfair dismissal application and a
general protections application for an unrepresented employee can be difficult to understand.
[27] I accept that by the 21 November 2017 Mr Stogiannidis had determined to pursue his
concerns as a general protections application, albeit his lawyer did not appear to appreciate
that the Commission cannot amend an unfair dismissal application to become a general
protections application but in any event this defect was remedied the day after Commissioner
Bissett drew the parties attention to the matter.
[28] The difficulty for Mr Stogiannidis is that having had the benefit of legal advice on 10
November 2017, he did nothing for 11 days and by this time 50 days had elapsed since his
dismissal. Whilst I do not dispute the explanation he has given, in my view it is not an
exceptional circumstance.
[29] The applicant needs to provide a credible explanation for the entire period of the
delay,5 but has not done so.
[30] The delay in this matter is considerable, however whilst I accept it presents prejudice
to Richmond Oysters, it is not determinative in this matter.
[31] Consideration of fairness relative to other persons in similar positions is a neutral
factor.
[32] In terms of the merits of the application, there is insufficient evidence before me to
make an assessment and accordingly I have regarded the merits as a neutral factor.
Conclusion
[33] For the reasons I have set out above, I am not satisfied that Mr Stogiannidis’
circumstances can be regarded as exceptional so as to support an extension of time. The
request for an extension of time is refused and, accordingly, the application will be dismissed.
An Order6 reflecting this decision will be issued.
COMMISSIONER
THE FAIR SEAL OF THE THE KCOMMISSION
[2017] FWC 7013
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Appearances (by telephone):
P.Azam of Mendis and Gibson Lawyers on behalf of the Applicant.
A.Bourandanis of Frenkel Partners Lawyers on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
December 22.
Printed by authority of the Commonwealth Government Printer
Price code C, PR599087
1 [2014] FWCFB 6660
2 Smith v MacFarlane Generators Pty Ltd [2015] FWC 632
3 [2011] FWAFB 975
4 [2014] FWCFB 6660
5 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
6 PR599088
