1
Fair Work Act 2009
s.365—General protections
Jeremy Anthony Cariss
v
Rockpool Group Holdings Pty Ltd
(C2023/1425)
DEPUTY PRESIDENT BEAUMONT PERTH, 27 APRIL 2023
Application to deal with contraventions involving dismissal
1 Issue and outcome
[1] On 14 March 2023, Mr Jeremy Anthony Cariss (the Applicant) applied to the Fair Work
Commission (the Commission) for it to deal with general protections contraventions involving
dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the
application be made within 21 days after the dismissal took effect1 or within such further period
as the Commission allows.2 The Respondent, Rockpool Group Holdings Pty Ltd, objected to
the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a)
of the Act and the Applicant was not its employee.
[2] In his application, the Applicant says his dismissal took effect on 20 February 2023.
The Respondent of course says the Applicant was not dismissed as the Applicant was not its
employee.
[3] In Herc v Hays Specialist Recruitment (Australia) Pty Ltd (Herc), the Full Bench of this
Commission observed that the question of whether an application for an unfair dismissal
remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.3 It is
accepted that an unfair dismissal application made outside the time required in s 394(2) is not
validly made unless and until a further period has been granted.4 The proper approach is to first
consider whether an application is made within the required statutory period and if not, whether
a further period should be granted, before contending with an argument that there has been no
dismissal.5 This of course requires an assumption that an applicant was an employee for this
purpose.6
[4] Herc addressed the statutory period under s 394(2) and the accompanying ‘extension of
time’ provision in s 394(3). These sections of the Act resemble s 366, sharing the same
statutory period in which to make an application and factors which are considered when
determining whether there are exceptional circumstances warranting an extension of time.
However, it is noted that with respect to the term ‘exceptional’, the factors considered in making
that determination are all but the same, with the exception that s 394(3) of the Act includes the
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DECISION
AUSTRALIA FairWork Commission
[2023] FWC 948
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factor of whether ‘the person first became aware of the dismissal after it had taken effect’.
Nevertheless, it follows that the reasoning of the Full Bench in Herc is apposite here and
therefore the first issue to be determined is whether to grant an order extending the time in
which the application is made.
[5] The Act requires the application to have been made within 21 days of the dismissal
taking effect. However, s 366(1)(b) allows for the extension of the period in which the
application under s 365 must be made. The Commission may extend the period under s 366(2)
if satisfied that there are exceptional circumstances that warrant doing so. To determine
whether there are exceptional circumstances, the factors in s 366(2)(a)–(e) are considered.
[6] The Applicant’s application was made one day outside of the statutory period. Having
considered the factors in s 366(2) of the Act, I have found that the circumstances are not
exceptional, and I do not consider it fair and equitable that time should be extended. I therefore
decline to grant an extension of time under s 366(1)(b). Accordingly, the application is
dismissed and an Order issues concurrently.7
2 Background
[7] Before the hearing, directions were issued to the parties providing detailed information
of what was required of both. The following background is drawn from the evidence and
submissions of the Applicant and Respondent filed in response to those directions and the
evidence provided at hearing.
[8] According to the Respondent, the Applicant was offered employment with it in the role
of General Manager.8 He was issued a contract of employment with the Respondent on
8 February 2023.
[9] The terms of the employment contract provided:
[y]our employment shall commence on 21 February 2023.9
[10] The Respondent states that it had a telephone discussion with the Applicant on
20 February 2023, in which it was decided during that discussion that the Applicant would not
commence employment with the Respondent.10 The Respondent clarified that it did not want
the Applicant to commence employment with it due to the Applicant’s conduct.11
[11] The Applicant’s evidence illuminated the reason provided by the Respondent to him
regarding its decision not to proceed in accordance with the employment contract. The
Applicant said that the Respondent had alleged he had poor interpersonal dealings with a
previous employee at another venue.12
[12] The Applicant disagreed with the assertion that he had mutually agreed ‘not to
commence’ without compensation as he had missed another work opportunity and was left
unemployed.13
3 Consideration
3.1 Extension of time
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[13] Consideration now turns to whether to extend the 21-day period within which the
Application was to be brought.
[14] In order for the application to proceed, it is necessary for the Applicant to obtain an
extension of time to make the application under s 366(2). This section provides that the
Commission may allow a further period for the application to be made if it is satisfied that there
are exceptional circumstances, taking into account the following:
(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 similar position.
[15] It has been said that proceedings not commenced in time should not be entertained.14
However, the Act has given the Commission discretion to extend the prescribed period for the
making of a general protections application involving dismissal. That discretion can be
exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e)
of s 366(2) are taken into account. It follows that an applicant has a considerable onus to
convince the Commission to exercise the discretion.15
[16] In decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work
Australia, the predecessor of this Commission, noted that even when ‘exceptional
circumstances’ are established, there remains discretion to grant or refuse an extension of
time.16 The Full Bench observed that what it will come down to is a consideration of whether,
given the exceptional circumstances found, it is fair and equitable that time should be extended.
[17] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned
from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the
circumstances must be out of the ordinary course, or unusual, or special, or uncommon,
although they need not be unique or unprecedented.17 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 can be
considered exceptional.18
[18] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided
clarification regarding the assessment of exceptional circumstances:
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.19
[19] At the commencement of the hearing, the parties were referred to s 366(2) of the Act
and the meaning of ‘exceptional circumstances’. Both were invited to make any further
submissions in relation to the question of whether there were exceptional circumstances.
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3.2 Reason for the delay
[20] In Pottenger v Department of Caffeine,20 it was observed that the Act does not specify
what reason for delay might tell in favour of granting an extension, however, decisions of the
Commission have referred to an acceptable,21 or a reasonable explanation.22
[21] The absence of an explanation for any part of the delay will usually weigh against an
applicant in such an assessment.23 Similarly, a credible explanation for the entirety of the delay
will usually weigh in an applicant’s favour, though, it is a question of degree and insight.24
[22] The Applicant attributes the delay in making the application upon several reasons which
are addressed as follows.
[23] The Applicant said that first he was shocked and dismayed at the actions the Respondent
took in dismissing him before starting work after signing the employment contract. The
Applicant explained that he missed another work opportunity, and this left him in a very poor
state of mental health.
[24] In applying for an extension of time, the Applicant explained that the Easter holiday was
also a cause for delay. However, the Applicant said that he now realises that he meant Labour
Day. The Applicant added that his confusion over the particular public holiday provided
evidence of his state of mind at the time – noting that he was very distressed and upset.
[25] The Applicant states that he emailed Mr Vincent Martzloff on 27 February 2023, having
spoken to ‘Fair Work’, hoping to resolve the matter, but received no response. On that point,
in his Outline of Submissions, the Applicant notes that he contacted ‘Fair Work’, but a
representative was purportedly unable to speak to him on the telephone until 2 February 2023.
It is presumed that the Applicant means 2 March 2023 given the employment contract was not
provided to the Applicant until 8 February 2023.
[26] In respect of the Applicant’s assertion that he was shocked and dismayed by the
Respondent’s actions, there is no medical evidence before me to suggest that the Applicant’s
health was so incapacitated that he was rendered incapable of dealing with his purported
dismissal (including by making the application currently on foot). In the absence of clear
medical evidence showing incapacity, it will be difficult for an employee to establish they were
prevented from lodging an application due to a medical condition particularly where the
employee demonstrates capacity to act by performing other tasks following the dismissal.25
[27] Furthermore, and as has been observed by the Respondent, stress, shock, confusion and
similar responses have been found not to constitute exceptional circumstances as they are
ordinarily encountered by many employees subsequent to a dismissal.26 It follows that I do not
consider that the Applicant’s shock and distress constitutes an acceptable reason for the duration
of the delay in making the application.
[28] Regarding there having been a public holiday in the period following the purported
‘dismissal’, I do not consider that this constitutes a plausible reason for the delay or provides in
part a reason for the delay. Whilst the jurisdiction accommodates circumstances for the filing
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of documents when the date of filing falls upon a public holiday, there is nothing extraordinary
or uncommon that the period in which to make the application includes a public holiday.
[29] Whilst the Applicant refers to having made contact with Mr Martzloff and with ‘Fair
Work’, I do not consider that these assertions advance the Applicant’s case in respect of his
argument concerning the delay in making the application.
[30] Having considered the evidence before me, I am not persuaded that there is a credible
explanation for the entirety of the delay or for that matter part of the delay.
[31] On balance, and in the circumstances of this particular case, I find the reason for the
delay is not an acceptable one. This weighs toward a finding of there not being exceptional
circumstances.
3.3 Action taken to dispute the dismissal
[32] There is no evidence before me to suggest that the Applicant took action to dispute the
‘dismissal’. The Applicant spoke of having attempted to resolve issues with Mr Martzloff and
the Respondent submitted that the Applicant emailed the Respondent in relation to the
termination of the contract asking for a payment. It is not obvious from the evidence provided
that the Applicant disputed his dismissal or sought to dispute his dismissal. However, cognisant
that the Applicant sought payment for the termination of the employment contract, I am, in the
circumstances, content to find the factor a neutral consideration, such that it weighs neither in
favour of, nor against, a finding of exceptional circumstances.
3.4 Prejudice to the employer
[33] I cannot identify any particular prejudice that the Respondent would face if an extension
of time is granted.
[34] However, the mere absence of prejudice is not itself a factor that would warrant the
grant of extension of time. In the present case, I consider this to be a neutral factor.
3.5 Merits of the application
[35] In Telstra-Network Technology Group v Kornicki,27 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). 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.28
[36] Evidence on the merits is rarely called at an extension of time hearing. As a result, the
Commission ‘should not embark on a detailed consideration of the substantive case’ for the
purpose of determining whether to grant an extension of time to an applicant to lodge her or his
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application.29 The merits of the application more generally would need to be scrutinised. This,
of course, would include consideration of the circumstances of the dismissal if an extension of
time were granted and the matter proceeded. However, in this case there is no factual dispute
that the Respondent chose not to honour the employment contract, such that the Applicant’s
employment did not commence on 21 February 2023 pursuant to clause 2.1 of the employment
contract.
[37] The Respondent argues that the Applicant was not its employee and therefore he was
not dismissed. The contention is not absent merit. As was said by the majority in Khayam v
Navitas English Pty (Navitas):
…The analysis of whether there has been a termination at the initiative of the employer for the
purpose of s 386(1)(a) is to be conducted by reference to the termination of the employment
relationship, not be reference to the termination of the contract of employment operative
immediately before the cessation of employment…30
[38] Of course, Navitas addressed the operation of s 386(1) in the context of dealing
fundamentally with the operation of fixed or outer-limit contracts and there is no suggestion in
this matter that the Applicant had signed up to such contract. However, the decision does shed
light on the distinction between the employment relationship and the employment contract.
That distinction is further traversed in Navitas by Colman DP, where the Deputy President
explains:
[115] The ‘employment relationship’ is a relationship of employment: it is not simply any
relationship that has some connection to employment. ‘Employment’ means the ‘state of being
employed’ or the ‘state of having paid work’. The employment relationship is formed and
substantially governed by the contract of employment. It may also be affected by statute and
industrial instruments such as awards and enterprise agreements. It is useful to consider how the
distinction between the employment relationship and the contract of employment can manifest
itself in circumstances of termination of employment.
[116] Commonly, the contract of employment and the employment relationship will end at the
same time as one another, and in the same manner, either at the initiative of the employer or the
employee, or by agreement. As the Full Court of the Industrial Relations Court noted in
Brackenridge v Toyota Motor Corporation Australia Ltd, ordinarily the conceptual difference
between the contract of employment and the employment relationship does not matter; dismissal
will ordinarily terminate both the particular contract of employment and the employment
relationship.
[117] A second, not uncommon situation is where the employment relationship ends, but the
contract of employment endures. This is what can occur in cases of wrongful dismissal, where
the employment ends, but the employee does not accept repudiation of the contract, and it
remains in existence. The High Court decisions in Automatic Fire Sprinklers, Byrne and Frew,
Barker and Visscher contemplate this situation.
[118] A third theoretical postulation might be that the contract of employment ends but the
employment relationship continues. Lunn was quite clear that ‘there can be no employment
relationship without there also being a contract of employment in existence between the parties
to the employment relationship’. It is very difficult to see how the employment relationship
could exist in a contractual void. There might be rare cases where statute deems employment to
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survive the termination of the contract of employment. But even here there is likely to be some
form of implied contractual foundation to the ongoing relationship.
[39] It is an indubitable fact that the parties had entered into an employment contract. But it
does not follow from this fact that an employment relationship had been established or
otherwise commenced. The employment contract expressly provided that the Applicant’s
‘employment shall commence on 21 February 2023’. It never did. It is therefore difficult to
conceive that the Applicant was an employee of the Respondent and was, prior to an
employment relationship existing, dismissed, as that term is understood by reference to s 386(1)
of the Act.
[40] In his application, the Applicant has alleged that he has been the subject of unlawful
discrimination in contravention of s 351 of the Act, but the attribute that he has specified, as
required by section 351(1), is stated to be ‘Equal Opportunity’, which is not a protected attribute
under s 351 of the Act. While the Applicant has taken umbrage to the Respondent acting upon
the ‘hearsay’ of one of its current employees who purportedly worked with the Applicant
previously and provided unfavourable feedback about the Applicant, such conduct does not
suggest that unlawful discrimination lies at the heart of this matter.
[41] The Applicant has not established that the substantive application in this jurisdiction is
not without merit and this factor therefore weighs against a finding of exceptional
circumstances. However, it is not the case that this conclusion detracts from the Applicant’s
discontent with the Respondent’s failure to honour the terms of the employment contract.
3.6 Fairness as between the applicant and other persons in a similar position
[42] Having considered the submissions of the parties in respect of this factor, I consider it
to be a neutral consideration in the present matter.
4 Conclusion
[43] 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.
Further, where exceptional circumstances are found, it must be determined whether it is fair
and equitable that time should be extended.
[44] Having regard to all of the matters that I am required to take into account under s 366(2),
I am not satisfied that the requisite exceptional circumstances exist. No factors weigh in favour
of granting an extension. In my view, the circumstances of this case are not exceptional, either
individually or when considered together. In all the circumstances, I do not consider it fair and
equitable to extend the time in which the Applicant could make his application.
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DEPUTY PRESIDENT
Appearances:
J Cariss, Applicant.
E Mirams, for the Respondent.
Hearing details:
2023.
Perth (by telephone):
27 April.
Printed by authority of the Commonwealth Government Printer
PR761275
1 Fair Work Act 2009 (Cth) s 366(1)(a).
2 Ibid s 366(1)(b).
3 [2022] FWCFB 234, [15].
4 Ibid.
5 Ibid.
6 Ibid [17].
7 PR761448.
8 Respondent’s Outline of Submissions, [1].
9 Ibid [2]; Digital Hearing Book, 50.
10 Respondent’s Outline of Submissions, [3].
11 Ibid [7].
12 Applicant’s Outline of Submissions, [1h(2)].
13 Ibid [1h(4)].
14 Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989, [20].
15 Ibid [21].
16 (2011) 203 IR 1, 6 [15].
MMISSION 12 WORK - 1
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb234.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr761448.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa6989.htm
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17 Ibid 5 [13].
18 Ibid 5–6 [13].
19 (2018) 273 IR 156, 165 [38] (emphasis in original) (Stogiannidis).
20 [2018] FWC 3403.
21 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].
22 Roberts v Greystanes Disability Services [2018] FWC 64, [16].
23 Stogiannidis (n 19) 165 [39].
24 Ibid.
25 See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.
26 Menelet v Enterprise & Training Company Ltd [2023] FWC 226, [19], citing Mamo v ICLED Australia Pty Ltd [2021]
FWC 3903, [21], citing Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [15].
27 (1997) 140 IR 1.
28 Ibid 11.
29 Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner
Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899,
[37]–[38].
30 (2017) 273 IR 44, 80 [75].
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc3403.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc1974.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc226.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc3903.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc3903.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc2899.htm
