1
Fair Work Act 2009
s.365—General protections
Chloe Bennett
v
Jazzport Holdings Pty Ltd
(C2023/2713)
DEPUTY PRESIDENT BEAUMONT PERTH, 11 JULY 2023
Application to deal with contraventions involving dismissal
1 Issue and outcome
[1] On 11 May 2023, Ms Chloe Bennett (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, Jazzport 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.
[2] It is uncontroversial that the Applicant’s dismissal took effect on 19 April 2023.
[3] Having noted that the Act requires the application to have been made within 21 days of
the dismissal taking effect, 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.
[4] Before the hearing, directions were issued to the parties providing detailed information
of what was required of both. The parties filed bare responses, with little to no evidence
addressing the factors in s 366(2)(a)-(e). This is despite the Applicant being provided an
extension of time in which to file her materials, due to missing the filing deadline. In light of
there being very little evidence, I decided it was appropriate to conduct a hearing. In the absence
of witness statements and a paucity of evidential material before me, I allowed both parties to
provide viva voce evidence.
[5] 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
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DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1665
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decline to grant an extension of time under s 366(1)(b). Accordingly, the application is
dismissed and an Order issues concurrently.3
2 Background
[6] From the materials provided, it appears that the Applicant was employed on
14 December 2022 to work as a childcare worker from Monday to Friday, with working hours
of 9.30 AM to 2.30 PM.4
[7] The Respondent states that from her commencement day up until 17 February 2023, the
Applicant had taken 16 days of personal leave. Then the Applicant’s father purportedly became
ill.5 A discussion was held between the Respondent and the Applicant regarding the amount of
personal leave she had utilised. It was agreed that the Applicant would work three days a week:
Monday, Wednesday, and Friday. This new arrangement commenced on 20 February 2023.6
[8] Unfortunately, the new arrangement did not curtail the personal leave utilised by the
Applicant, and by her final day of presenting for work, she had taken 22 days of personal leave.
The Respondent stated that as a small business that runs staff ratios in accordance with the
children present in the centre, the Applicant could no longer be accommodated.7
[9] The Applicant agreed that whilst working for the Respondent she suffered a range of
illnesses and was required to have a lot of time off. The Applicant said she suffered financially
and fell behind on her rent, which necessitated a strict rental payment plan with her real estate
agent. The Applicant noted that before being dismissed she was hospitalised with a blood clot
in her superficial vein which required her to be placed on strict bed rest. The Applicant holds
the view that this resulted in her employment being terminated.
[10] The Respondent submitted that whilst the Applicant had taken a substantial amount of
personal leave, a ‘sick note’ was provided for only one period of that leave. The Applicant
appears to have thought that she had provided two medical certificates during the period.
[11] The Applicant submitted that on having been dismissed she was unable to meet her
rental payment plan obligations, and not knowing if or when she could make any catch up
payments, her children and her were evicted from their rental property and were temporarily
homeless until she was able to secure accommodation in the rental crisis.
[12] The Respondent noted on 28 April 2023 it heard from the Applicant, who had enquired
as to the payment of her annual leave. Further communication concerned the return of
uniforms, to which the Applicant confirmed she would drop them off the following week.
However, that appears not to have eventuated.
3 Consideration
3.1 Extension of time
[13] Consideration now turns to whether to extend the 21-day period within which the
application was to be brought.
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[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.8
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.9
[16] In the 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.10 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.11 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.12
[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.13
[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 further submissions
in relation to the question of whether there were exceptional circumstances.
3.2 Reason for the delay
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[20] In Pottenger v Department of Caffeine,14 the Deputy President 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,15 or a reasonable explanation.16
[21] The absence of an explanation for any part of the delay will usually weigh against an
applicant in such an assessment.17 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.18
[22] The Applicant attributes the delay in making the application upon having been
dismissed, which resulted in her being unable to comply with her strict rental payment plan and
then being evicted from her home, and moving house. The Applicant noted she was in the
middle of moving when required to file the application and her printer was packed.
[23] 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.
[24] The Applicant was provided with ample time to file evidential materials to support her
case. On her non-compliance with the directions issued on 16 June 2023, a further period was
provided for the Applicant to provide any evidence that she wished to rely upon in support of
her argument for an extension of time. With the exception of an email in which the Applicant
asserted certain points, no further evidence was provided to verify her account. Further, whilst
the Applicant gave evidence of not having the means to submit her application, it appears from
the oral testimony provided that she had email access and telephone access during the delay
period. In my view, the Applicant did not take reasonable and timely steps to preserve her
position in relation to the dismissal in the weeks that followed. This was despite access to a
mobile phone including email access. I accept that sometimes online forms do not work on
mobile phones. In such cases, the prudent course is to call the Commission during business
hours and ask to make an application over the phone.
[25] 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
[26] There is no evidence before me to suggest that the Applicant took action to dispute the
dismissal. In the circumstances, I consider this factor weighs against a finding of exceptional
circumstances.
3.4 Prejudice to the employer
[27] I cannot identify any particular prejudice that the Respondent would face if an extension
of time is granted.
[28] 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.
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3.5 Merits of the application
[29] In Telstra-Network Technology Group v Kornicki,19 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.20
[30] With regard to the Applicant’s substantive case, she relied upon a contravention of s 352
of the Act. However, that section provides protection in respect to an illness or injury of a kind
prescribed by the regulations. The regulation in question is regulation 3.01 of the Fair Work
Regulations 2009 (Cth). That regulation provides that a prescribed illness or injury exists if the
employee provides a medical certificate for the illness or injury, or a statutory declaration within
24 hours after the commencement of the absence or such longer period as is reasonable in the
circumstances. It is not apparent from the oral testimony given at hearing that such evidence
would be forthcoming.
[31] Nevertheless, 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 make
her or his application.21 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. I therefore consider this factor
neutral.
3.6 Fairness as between the applicant and other persons in a similar position
[32] The parties did not draw my attention to any relevant persons or cases that would be
relevant in relation to the question of fairness as between the Applicant and other persons in a
similar position. I consider this to be a neutral consideration in the present matter.
4 Conclusion
[33] 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.
[34] 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
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individually or when considered together. I do not consider it fair and equitable to extend the
time in which the Applicant could make her application.
DEPUTY PRESIDENT
Appearances:
C Bennett, Applicant.
C Lee for the Respondent.
Hearing details:
2023.
Perth (by telephone):
4 July.
Printed by authority of the Commonwealth Government Printer
PR764066
1 Fair Work Act 2009 (Cth) s 366(1)(a).
2 Ibid s 366(1)(b).
3 PR764067.
4 Form F8 – General protections application involving dismissal, [5.1].
5 Ibid.
6 Ibid.
7 Ibid.
8 Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989, [20].
9 Ibid [21].
10 (2011) 203 IR 1, 6 [15].
11 Ibid 5 [13].
12 Ibid 5–6 [13].
13 (2018) 273 IR 156, 165 [38] (emphasis in original) (Stogiannidis).
14 [2018] FWC 3403.
15 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].
MMISSION 12 WORK - 1
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr764067.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa6989.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc3403.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc1974.htm
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16 Roberts v Greystanes Disability Services [2018] FWC 64, [16].
17 Stogiannidis (n 13) 165 [39].
18 Ibid.
19 (1997) 140 IR 1.
20 Ibid 11.
21 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].
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc2899.htm
