1
Fair Work Act 2009
s.365—General protections
Andrew Green
v
Bilco Group Pty Ltd
(C2018/4561)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 5 NOVEMBER 2018
Application to deal with a general protections dispute involving dismissal; application made
outside of the time prescribed; whether there are exceptional circumstances; whether
discretion to allow a further period within which application may be made should be
exercised; extension of time granted.
[1] On 17 August 2018, Mr Andrew Green (the Applicant) lodged an application pursuant
to s.365 of the Fair Work Act 2009 (the Act). The Applicant said that he commenced
employment with Bilco Group Pty Ltd (the Respondent) on 5 March 2018 and his
employment had been terminated by the Respondent on 21 July 2018.1
[2] On 25 October 2018, I convened a hearing to determine whether to allow the
Applicant an additional period within which to lodge his application. I have determined that
the Applicant should be allowed a further period within which to lodge his application. These
are the reasons for that decision.
[3] General protections applications involving dismissal must be made within 21 days
after a dismissal took effect or in such further time as the Fair Work Commission
(Commission) may allow.2 As the dismissal took effect on 21 July 2018, an application for a
remedy should have been lodged by no later than 11 August 2018. The application was
therefore lodged outside of the time prescribed and was, in effect, lodged 7 days after the last
day on which such an application could have been made.
[4] The matters that I need to take into account in considering whether or not I am
satisfied that there are exceptional circumstances are contained in s.366(2) of the Act:
“366 Time for application
…
1 Applicant’s Form F8 – General Protections Application Involving Dismissal filed 17 August 2018; and Applicant’s Outline
of Argument: Extension of Time filed 25 September 2018.
2 Section 366 of the Act.
[2018] FWC 6818
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 6818
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(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.”
[5] It is clear from the structure of s.366(2) that 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 show exceptional
circumstances.
[6] Briefly, exceptional circumstances are circumstances that are out of the ordinary
course, unusual, special or uncommon but the circumstances themselves do not need to be
unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into
account s.366(2) that there are exceptional circumstances.
[7] I will turn then to the particular matters to which regard must be had.
Reason for the delay
[8] The reason for the delay in lodging an application is one of the factors that must be
taken into account. The absence of an 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 it is ultimately a question of
degree and insight. Necessarily, the period of the delay with which the explanation is
concerned is in the period commencing immediately after the time for lodging an application
had expired and ending on the day on which the application was ultimately lodged. However,
the circumstances from the date the dismissal took effect must be considered in assessing
whether the explanation proffered for the delay is an acceptable or credible explanation.3
[9] The Applicant addressed the reason for delay in his submissions as follows:
“1. I had initially filed an unfair dismissal claim well within the required 21 day
period.
2. At that time I had not consider filing a claim under General Protections Rules
believing that the one claim, in my case would be no different from the other in spirit.
3 See Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12] and Ozsoy v Monstamac
Industries Pty Ltd [2014] FWCFB 2149 at [31] – [33]; See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine
[2016] FWCFB 6963.
[2018] FWC 6818
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3. I had requested the commission consider in discretion the fact that my
employment fell short of the 6 month qualifying period for a casual employee to lodge
a claim by only a few weeks.
4. This request was denied, respectfully, as the commission had no jurisdiction to
continue.
5. On seeking further legal advice regarding the general Protections claim via the
contacts supplied by the commission, it was indicated that the same qualifying period
would apply to either application, so, with respect, I gave up attempting to seek just
intervention via the commission.
6. It was not until 12:12pm on the 14th of August, when contacted by the
commission regarding discontinuance of the unfair dismissal claim, that I was
informed that in fact the 6 month qualifying period that denied the initial unfair
dismissal claim, factually did not apply to a General Protections claim.
7. With this new information, I immediately discontinued the Unfair dismissal
claim and now wish to lodge this claim under General Protection Rules
8. The content and substance of either claim, remains the same, I have been
unfairly treated and suffer unjustly because of the action taken by my ex employer
BILCO.[sic]”4
[10] The Commission’s records reflect that on 3 August 2018, the Applicant lodged an
unfair dismissal application pursuant to s.394 of the Act (UD Application). The UD
Application was lodged just 13 days after the Applicant’s dismissal. Following the receipt of
the UD Application staff of the Commission sent the Applicant a letter explaining that his
application indicated that he had not been employed for the minimum employment period
required under the Act. The letter said that based on the information he had provided, the
Commission did not have jurisdiction to deal with his application. The letter also attached
contact details for Community Legal Centres should the Applicant wish to obtain legal
advice. This letter was sent by both email and post on 3 August 2018.5
[11] On 6 August 2018, staff of the Commission received email correspondence from the
Applicant regarding his UD Application. In the email the Applicant asked “does the
[Commission] have any discretionary powers to allow the claim to proceed, if the 6 month
period is not satisfied in full”.6 On the same day, staff of the Commission attempted to contact
the Applicant by telephone to discuss the email, however the Applicant did not answer and
there was no option to leave a voicemail message. Staff of the Commission then sent an email
advising the Applicant that the Commission does not have any discretion regarding the
minimum employment period. Further, it said that if an employee cannot show they have
satisfied the minimum employment period, the application will be dismissed as the
Commission has no jurisdiction to proceed.7 No response was received to this email.
4 Applicant’s Outline of Argument: Extension of Time filed 25 September 2018 at question 1d.
5 Letter from the staff of Commission to the Applicant dated 3 August 2018.
6 Email from the Applicant to the staff of the Commission dated 6 August 2018 received at 11.12am.
7 Email from the staff of the Commission to the Applicant dated 6 August 2018 sent at 12.20pm.
[2018] FWC 6818
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[12] On 14 August 2018, staff of the Commission contacted the Applicant by telephone to
discuss his UD Application, confirming that unless the Applicant believed he had an
argument that may extend the employment period beyond six months, the Commission would
not have jurisdiction to hear the matter. The Commission’s records show that the Applicant
requested to discontinue his UD application and asked whether a general protections
application had a minimum employment period requirement. Staff of the Commission
confirmed that general protections applications do not have a minimum employment period,
however the Applicant was advised that the dismissal must infringe the general protections
provisions of the Act. The Applicant said that he intended to make general protections
application and he was advised that his application would be out of time and that he would
need to establish exceptional circumstances to obtain an extension of time.8
[13] The Applicant subsequently lodged his general protections application on 17 August
2018. It is worth noting that the Applicant lodged his general protections application by post
and this caused further delay in its lodgment. The post mark on the envelope confirmed that
the application was received by the postal service on 15 August 2018 (5 days out of time),
however it was not received by the Commission until 17 August 2018.9
[14] On review of the two applications, they are substantially the same in content. The
Applicant has provided the same 22 page annexure that details the merits of his application
with only minor amendments which go to the change of application type and the addition of
one further paragraph relating to what the Applicant says are further pay issues with the
Respondent.10
[15] As to the Applicant’s contention that he sought further legal advice regarding a
general protections claim from the contacts supplied by the Commission, and was told that the
same qualifying period would apply to either application11, the Applicant has not provided
any evidence beyond his assertion to support this contention and he could not recall which
organisation he contacted, when he had made contact nor could he identify the person with
whom he had spoken.
[16] At the hearing the Applicant said that he may have contacted the Employment Law
Centre of Western Australia12, but the Applicant conceded that he may have misunderstood
the advice he received.13 On the basis of the material before me I am not persuaded that there
has been anything akin to representational error for the purposes of providing an explanation
for the delay. However, the Applicant stated that he was not relying solely on representative
error in his request for an extension of time.14
[17] The differences between an unfair dismissal remedy application and an application for
the Commission to deal with a dismissal related general protections dispute may, it must be
8 File note of Applicant’s telephone conversation with a staff member of the Commission dated 14 August 2018, filed on 4
October 2018.
9 Applicant’s Form F8 – General Protections Application Involving Dismissal filed 17 August 2018.
10 Applicant’s Form F2 – Unfair Dismissal Application filed 3 August 2018; and Applicant’s Form F8 – General Protections
Application Involving Dismissal filed 17 August 2018.
11 Applicant’s Outline of Argument: Extension of Time filed 25 September 2018 at question 1d [5].
12 Transcript of Proceedings dated 25 October 2018 at PN42.
13 Ibid at PN48.
14 Ibid.
[2018] FWC 6818
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acknowledged, confuse an unrepresented person seeking to dispute a dismissal. The Applicant
acted promptly in challenging his dismissal by lodging an application he was not entitled to
make. Thereafter he sought some advice and following consultation with staff of the
Commission, he acted reasonably promptly to lodge the application subject of this decision.
This is not a case where the Applicant sought to test the jurisdictional limits of his UD
application. Rather, once he was advised that his UD application was beyond jurisdiction he
took steps to discontinue that application and to make an appropriate application. The UD
application in substance alleged a breach of the general protections provisions of the Act. The
delay in bringing this application was principally because the Applicant made the wrong
application in respect of that which was in substance the same complaint. Whilst the period of
delay would have been shorter had the Applicant made the general protections application by
email instead of post, he nonetheless acted promptly once told that the UD application was
beyond jurisdiction. In the circumstances I am persuaded there is an acceptable explanation
for the delay and this weighs in the Applicant’s favour.
Action taken by the person to dispute the dismissal
[18] Turning next to the question of the action taken by the Applicant to dispute his
dismissal. The Applicant submits that in addition to lodging his UD application on 3 August
2018, he also attempted to immediately dispute his dismissal.15 The Applicant says that on the
“brief” telephone call with the Respondent during which he was dismissed, he attempted to
dispute the dismissal, but he says he “argued [the] facts to no avail”.16 He said that following
this, the Respondent refused to engage in any further conversation regarding the dismissal.17
This is further supposed by the Respondent’s submission that the Applicant attempted to
dispute his dismissal through “phone calls, abusive email and texts”.18 I accept the Applicant
took steps to dispute his dismissal before making this application.
[19] That he did so, weighs in his favour.
Prejudice to the employer
[20] The Applicant submits that the Respondent has in no way been prejudiced by his
application being filed late because it was aware that he intended to file a claim from as early
as 21 July 2018.19 The Applicant said that on 21 July 2018 he advised the Respondent that he
would be seeking the intervention of the Commission.20 Further, the Applicant provided copy
of a text message sent to the Respondent on 21 July 2018 at 12.15pm following the dismissal
phone call stating:
“That’s completely wrong Dean and I will be filing an unfair dismissal claim”21
15 Transcript of Proceedings dated 25 October 2018 at PN121-125.
16 Applicant’s Outline of Argument: Extension of Time filed 25 September 2018 at question 1e [3].
17 Ibid at question 1e [4].
18 Respondent’s Outline of Argument: Extension of Time filed 23 October 2018 at question 1e.
19 Applicant’s Outline of Argument: Extension of Time filed 25 September 2018 at question 1f.
20 Transcript of Proceedings dated 25 October 2018 at PN136-139.
21 Annexure to the Applicant’s Form F8 – General Protections Application Involving Dismissal filed 17 August 2018,
Annexure C - Text message from the Applicant to the Respondent on 21 July 2018 at 12.15pm.
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[21] It is noted that the Respondent did not receive the Applicant’s UD Application filed on
3 August 2018 because it had not been served by the staff of the Commission. As the
Applicant did not meet the minimum requirements to make the application, the staff of the
Commission sought to contact the Applicant prior to the application being served on the
Respondent. The Applicant subsequently discontinued his UD application prior to the
Respondent receiving any notification of it. At the hearing the Respondent confirmed that it
never received the UD Application.22
[22] In any event, the period of delay is short and the Respondent was on notice of a
prospective claim on the date of the Applicant’s dismissal. Further, the Respondent does not
contend there is any prejudice and says the application has not caused any disadvantage or
unfairness to the business.23 I consider this to weigh in favour of the Applicant.
Merits of the application
[23] The Applicant submits that he was dismissed in contravention of s.340 of the Act24:
“340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed
not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person )
because a third person has exercised, or proposes or has at any time proposed to
exercise, a workplace right for the second person's benefit, or for the benefit of a class
of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).”
[24] The Applicant submits that the Respondent dismissed him because he made numerous
enquiries regarding his pay and other operational and safety issues “thus making [him] a
22 Transcript of Proceedings dated 25 October 2018 at PN128-133.
23 Respondent’s Outline of Argument: Extension of Time filed 23 October 2018 at question 1g.
24 Applicant’s Outline of Argument: Extension of Time filed 25 September 2018 at question 1h.
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liability”25. Furthermore, the Applicant says that the Respondent’s claim that he was
dismissed due to his conduct during an argument with a colleague on 19 May 2018 is false.26
[25] The Applicant contends that on 19 July 2018, he had an argument with the
Respondent’s administration officer regarding his pay. He says that this was one of a number
of enquiries he had made regarding his pay, stating that it was often paid late or the amount
was incorrect. The Applicant says when he made this enquiry, an argument ensued with
between him and the administration officer and he was asked to leave the office. The
Applicant says he then contacted the Respondent’s general manager, Mr Dean Chappell, to
advise him of the incident. He says he apologised for his actions and Mr Chappell warned him
of the possible consequences of unprofessional conduct in the future.27
[26] The Applicant says that on 20 July 2018, he attended work without further issue and
that it was a “regular non eventful day”28. The Applicant says that on 21 July 2018 he was due
to depart the island where the worksite was located and the administration officer had
contacted him via text message to confirm his ferry transfer.29 At 7.48am she sent him a text
message that read:
“Ferry tickets have been changed to 830am, time sheet has been changed to w e 22/07
47hrs-5 days meal allowance Have a great break [sic]"30
[27] The Applicant says that on the same day, he received a message at 11.44am asking
him to call Mr Chappell and when he did he was advised that his employment had been
terminated. Following this call, the Applicant sent the Respondent the text message
reproduced at [20] foreshadowing his UD application.31
[28] The Applicant contends that he had raised numerous other concerns throughout his
employment with the Respondent, these issues included the lack of available tools and
equipment, and the lack of clear safety or operational instructions regarding traffic control,
smoking restrictions, unsafe equipment and paperwork deficiencies. The Applicant contends
that these enquiries are the underlying reason for his dismissal.32
[29] The Respondent’s response to the application is that the Applicant was dismissed for
“[t]hreating and abusive language to management staff”.33 It says that it will not be retracting
the allegations it made and that the Applicant had received verbal warnings relating to his
25 Ibid.
26 Ibid.
27 Annexure to the Applicant’s Form F8 – General Protections Application Involving Dismissal filed 17 August 2018,
document titled “Work period and allegation”.
28 Ibid.
29 Ibid.
30 Annexure to the Applicant’s Form F8 – General Protections Application Involving Dismissal filed 17 August 2018,
Annexure B - Text message from Respondent’s administration officer to the Applicant on 21 July 2018 at 7.48am.
31 Annexure to the Applicant’s Form F8 – General Protections Application Involving Dismissal filed 17 August 2018,
Annexure C - Text message from the Applicant to the Respondent on 21 July 2018 at 12.15pm.
32 Annexure to the Applicant’s Form F8 – General Protections Application Involving Dismissal filed 17 August 2018,
document titled “Work period and allegation”; and Applicant’s Outline of Argument: Extension of Time filed 25
September 2018 at question 1h.
33 Respondent’s Form F8A – Response to General Protections Application at question 2.2.
[2018] FWC 6818
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conduct and attitude towards management on prior occasions.34 Further, it says that there was
no ongoing issue with pays and that any issues were rectified, with enquiries being handled in
a timely manner.35 At the hearing, the Respondent contended that the application has no merit,
that the Applicant had been warned about his language, and that there were no issues with
pay, further submitting that the Applicant may have been confused about his pay.36
[30] It is plain from the above there are disputed factual issues which will need to be
resolved during a contested hearing. At this very early interlocutory stage is not appropriate to
attempt to resolve those issues particularly as in this case neither party gave evidence.
However it must be remembered that this is a general protections claim. In order to maintain
such a claim the Applicant will need to show that adverse action was taken. There is no
dispute that adverse action in the form of dismissal has been taken by the Respondent. The
Applicant will also need to point relevantly to a workplace right that he has exercised. The
Applicant maintains, and the Respondent does not dispute, that before his dismissal the
Applicant made a complaint or enquiry in relation to his employment. The Applicant also
alleges that the Respondent took the adverse action by dismissing him because or for reasons
that included that he had made the complaint or enquiry. Assuming these things can be
established at a trial the Respondent will be required to show that the reason alleged was not
the reason for the dismissal. In these circumstances it cannot be said the application is without
merit. It seems to me that there will be little difficulty in the Applicant establishing the
elements of the contravention that he is required to establish. That is that there was adverse
action taken, that he exercised a workplace right and that he alleges that adverse action was
taken because he had exercised that workplace right. In these circumstances question of the
merits of the application weigh in favour of the Applicant.
Fairness as between the person and another persons in a like position
[31] As to fairness between the Applicant and other persons in a similar position, cases of
this kind will generally turn on their own facts; however this consideration is concerned with
the importance of the application of consistent principles in cases of this kind, thus ensuring
fairness as between the Applicant and other persons in a similar or like position. This
consideration may relate to matters currently before the Commission or to matters previously
decided by the Commission.
[32] Neither party made any material submission on this issue, nor did any party bring to
my attention any relevant decision of the Commission which is in terms similar to the facts in
this case. Consequently, this matter is a neutral consideration in the present circumstances.
Conclusion
[33] As is evident from the analysis above, the preponderance of matters that must be taken
into account weigh in favour of a conclusion there are exceptional circumstances. None of the
factors weigh against such a conclusion and one factor weighs neutrally. I am persuaded
therefore that there are exceptional circumstances. The Respondent did not raise any issue
which might persuade me not to exercise my discretion notwithstanding that I have concluded
34 Ibid at question 4.1.
35 Ibid at question 5.1.
36 Transcript of Proceedings dated 25 October 2018 at PN155-156.
[2018] FWC 6818
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there are exceptional circumstances. Nor am I aware of any persuasive discretionary
consideration which would warrant that conclusion.
[34] I therefore propose to allow the Applicant further period within which to lodge his
application. The application may therefore be lodged by 17 August 2018.
[35] The application will be progressed by way of a conference at a time and date to be
advised.
DEPUTY PRESIDENT
Appearances:
Mr A Green on his own behalf
Mr D Chappell on behalf of the Respondent
Hearing details:
2018.
Melbourne, Perth and Albany (video hearing):
October 25.
Printed by authority of the Commonwealth Government Printer
PR702060
VOISSINNO
