1
Fair Work Act 2009
s.365—General protections
Mark Cavanagh
v
Kg Services Australia Pty Ltd
(C2023/3742)
COMMISSIONER CIRKOVIC MELBOURNE, 15 SEPTEMBER 2023
Application to deal with contraventions involving dismissal – extension of time granted.
[1] Mr Mark Cavanagh (the Applicant) lodged a general protections application (the GP
application) with the Fair Work Commission (the Commission) pursuant to s365 of the Fair
Work Act (the Act). The Respondent to the application is KG Services Australia Pty Ltd (the
Respondent).
[2] It is uncontested that the Applicant’s employment with the Respondent ended on 18
May 2023. The GP application was lodged on 26 June 2023. The last day to lodge the GP
application was 8 June 2023 and the GP application was therefore lodged 18 days out of time.
Legislative scheme
[3] Subsection 366(1) of the Act provides that an application under s.365 of the Act must
be made within 21 days after the dismissal took effect:
(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).
[4] Subsection 366(2) of the Act provides that the Commission may allow a further period
for an application to be made if it is satisfied there are exceptional circumstances. The
Commission in concluding whether exceptional circumstances exist must take into account
the following factors:
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional
circumstances, taking into account:
[2023] FWC 2378
DECISION
AUSTRALIA FairWork Commission
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[2023] FWC 2378
(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] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group
Pty Ltd1 where the Full Bench said (footnotes omitted):
“[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.”
Approach of the Commission
[6] The Full Bench of the Commission affirmed in Periklis Stogiannidis v Victorian Frozen
Foods Distributors Pty Ltd t/as Richmond Oysters2 that the conclusion as to the existence of
exceptional circumstances will turn on a consideration of all of the relevant matters (including
the reason for delay) and the assignment of appropriate weight to each. Further, the Full Bench
clarified that with respect to s366(2)(a), a credible explanation for the entirety of the delay is
not a precondition for the granting of an extension of time. The Full Bench held as follows:
“[38] 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.
[39] So much is clear from the structure of s366(2), 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 disclose
[2023] FWC 2378
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exceptional circumstances. The absence of any 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, as we mention later, it is a question of degree and insight. However 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.”
Background
[7] The matter was listed for hearing on 14 September 2023. The Applicant sought
permission under s596 of the Act to be legally represented. Giving weight to the circumstances
and considerations in s596 of the Act and noting that the Respondent did not object to the
Applicant’s application, I granted permission to the Applicant to be represented. Mr Chasumba
appeared on the Respondent’s behalf.
Facts
[8] The following matters were either agreed between the parties or not otherwise
substantially contested:
• In 2013, the Applicant began working with the Respondent before taking a break in
employment.3
• On 30 September 2022, the Applicant received a Casual Letter of Engagement
offering him employment with the Respondent. The Letter states, inter alia, that the
Contract will commence operation from 07/11/22, or upon commencement of
employment, whichever is the earlier.4
• On 18 May 2023, the Applicant was terminated from his employment with the
Respondent. The Applicant states he was told verbally by his supervisor Mr Ratana,
that the reason for termination was that he was not suitable for the position.5 The
Respondent concedes at hearing that there is no evidence before me other than the
evidence of the Applicant as to the conversation between him and Mr Ratana on 18
May 2023, but submits that the conversation between the Applicant and Mr Ratana
was more detailed than what the Applicant suggests.
• On 19 May 2023 at 3.33pm, the Applicant filed his Form F2 – Unfair Dismissal
application (UD application)6, and in answer to question 1.1, states that he commenced
employment with the Respondent on 21 October 2022.7
• On its Form F3 Employer Response (Form F3) filed on 12 June 2023, the Respondent
submitted that the Applicant commenced employment on 22 November 2022.8
Further, the Respondent stated that the reason for termination was his very poor
attendance.9 The Form F3 was sent to the unfair dismissal team of the Commission
and the Perth registry. The Applicant was not copied into this correspondence.
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[2023] FWC 2378
• On 15 June 2023 at 10.00pm, the Respondent forwarded the Form F3 to the
Applicant,10 raising the jurisdictional objection that the Applicant had not met the
minimum employment period for unfair dismissal, as his start date with the
Respondent was 22 November 2022 rather than 21 October 2022.11
• On 16 June 2023 at 7.45am, the Applicant’s representative wrote to the Respondent
seeking clarification as to the Applicant’s start date, pointing specifically to the 30
September 2022 letter of engagement that states the Contract will commence
operation from 7 November 2022 or upon commencement of employment, whichever
is earlier.12
• On 25 June 2023 at 11.53pm, the Respondent responded confirming that the
Applicant’s start date with the Respondent was 22 November 2022 as evidenced by
the site roster as well as the below payroll record and first payslip for week ending 29
Nov 2022.13
• On 26 June 2023 at 2.22pm, the Applicant filed a Form F50 discontinuing his UD
application. In the lodgement email, the Applicant’s representative states the
respondent has today provided additional information indicating that according to
company records the applicant has not completed the Minimum Employment Period
and that the Applicant was terminated on the basis of attendance due to illness.14
• On 26 June 2023 at 2.59pm, the Applicant lodged a GP application with the
Commission.15
Matters to be taken into account pursuant to s366(2)
[9] 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 s366(2) above. I will deal with each
of those matters separately.
(a) the reason for the delay;
[10] The Applicant relied on a combination of factors during the hearing and in his written
submissions to explain the delay as follows:
• His representative mistakenly filed a UD application on the basis that he thought his
start date was 21 October 2022 and he had therefore met the minimum employment
period for the making of a UD application.
• He was advised for the first time on 15 June 2023 at 10.00pm when the Form F3 was
forwarded to him by the Respondent that his start date was 22 November 2022 and
that his termination was on the grounds of his very poor attendance.
[2023] FWC 2378
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• On 16 June 2023 at 7.45am, his representative wrote to the Respondent seeking
clarification of his start date.
• On 25 June 2023 at 11.53pm, the Respondent replied to that correspondence.
• On 26 June 2023 at 2.59pm, the Applicant lodged his GP application.
[11] As to the reason for the delay, the Respondent submits that:
• The Applicant should have been aware of his start date as he had a written contract,
and prior experience with the company’s onboarding process and mobilisation date.
• The Applicant only enquired about his start date on 16 June 2023 and did not raise any
questions about his start date in the initial UD application of 19 May 2023.
[12] On the basis of the material before me, I find that the reason for the delay is that the
Applicant first became aware of the reason for his termination on 15 June 2023 by which time
his GP application was already out of time and that he was mistaken as to his start date.
[13] Further, I have accepted the Applicant’s evidence that:
• He was advised by Mr Ratana that he was dismissed as he was not suitable for this
position. I note in this regard that the separation certificate produced during the course
of the hearing supports his evidence as it states at Q4 that the reason for separation
was unsuitability for this type of work.
• He only became aware on 15 June 2023 when the Respondent forwarded the Form F3
that the reason for his termination was on account of his very poor attendance.
• He mistakenly thought his start date was 21 October 2022.
[14] In these circumstances I find the Applicant’s reason for delay to be credible. Given this
finding, it weighs in favour of granting an extension of time.
(b) any action taken by the person to dispute the dismissal;
[15] It is uncontested that the Applicant took action to dispute his dismissal immediately
following the termination of his employment.
[16] This conclusion weighs in favour of granting an extension of time.
(c) prejudice to the employer (including prejudice caused by the delay);
[17] Prejudice to the employer will go against the granting of an extension of time.16
However, the “mere absence of prejudice to the respondent is an insufficient basis to grant an
extension of time.”17
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[2023] FWC 2378
[18] The Applicant submits that the employer will not be prejudiced as the delay of 18 days
is minimal. The Applicant additionally submits that the Respondent was on notice that the
Applicant was disputing the termination, and hence would suffer no prejudice in these
circumstances.
[19] The Respondent submits that since the Applicant’s dismissal, the organisation has
experienced rapid change, and that most of the key players involved in the dismissal have left
the organisation and that it is difficult to state categorically on verbal discussions that were
conducted.18
[20] Further, the Respondent submits that as they provide maintenance and labour hire to the
Karara Mine site, a full complement of staff is expected to maintain production at the site, and
that spontaneous and unjustifiable absence negatively impacts their business and reputation.19
[21] In all the circumstances, I do not find that any material prejudice would be suffered by
the Respondent if an extension of time were granted. However, at the same time the “mere
absence of prejudice to the employer is an insufficient basis to grant an extension of time”.20
Therefore, this is a neutral factor in deciding whether to grant an extension of time.
(d) the merits of the application;
[22] In the matter of Kornicki v Telstra-Network Technology Group21 the Commission
considered the principles applicable to the extension of time discretion under the former
s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“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.”22
[23] The Respondent contends that the Applicant was terminated for missing a swing from
29 April 2023 – 18 May 2023 after contracting COVID-19 and failing to produce some sort of
evidence to substantiate his absence.23 Further, the Respondent states the Applicant abrogated
his right to allege discrimination on medical grounds, and that the Applicant is prevented from
alleging a breach of the general protections regarding temporary absence for illness or injury as
he was not on paid leave24 and that the Applicant’s GP application is without merit.25
[24] The Applicant submits that any perceived issue of attendance as a full-time employee
was directly correlated, or as a direct result of a period of illness and that he was terminated in
contravention of s340 of the Act. Further, the Applicant submits that the Respondent
discriminated against the Applicant on the basis of disability and contravened the Applicant’s
right to take a temporary absence due to illness or injury.26
[25] In considering whether to grant an extension of time the Commission is not in a position
to make findings of fact on contested issues.
[2023] FWC 2378
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[26] For present purposes the Commission, as presently constituted, is satisfied that the
Applicant’s case is not one that is without merit or lacking in any substance. There is a reverse
onus in matters such as this and the Respondent would have to establish that it did not terminate
the Applicant’s employment because of a prohibited reason.
[27] I am satisfied that the Applicant’s case is not without merit. In these circumstances, the
merits weigh slightly in favour of a finding that there are exceptional circumstances.
(e) fairness as between the person and other persons in a similar position.
[28] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd27 considered this criterion and
said at [41]:
“…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 Appellant and other persons in a similar
position. This consideration may relate to matters currently before the Commission or
matters previously decided by the Commission.”
[29] The Applicant submits that there are no other persons in a similar position as the
Applicant therefore no issue of fairness arises.28 The Respondent did not provide submissions
on this issue.
[30] Consequently, this matter is a neutral consideration in the present circumstances.
Conclusion
[31] Having regard to the matters I am required to take into account under s366(2), I am
satisfied that there are exceptional circumstances in this case. Whilst some of the factors
required to be considered are neutral, I have determined that there is a credible reason for the
delay, the Applicant took steps to dispute the dismissal, and the Applicant’s case is not without
merit. For those reasons, I am satisfied that the discretion to extend under s366(2) is enlivened
and I consider it appropriate to exercise it.
[32] Accordingly, the Applicant’s application under s365 of the Act will be referred to the
General Protections Team who will correspond with the parties regarding the progress of the
matter.
[33]
FAIR WORK LOF THE FAIR VOR KY OF THE COMMISSION THE SEA,
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[2023] FWC 2378
COMMISSIONER
Appearances:
Mr Dircks, with permission, for the Applicant
Mr Chasumba and Mr Liu of the Respondent
Hearing details:
2023
14 September.
Melbourne (via Microsoft Teams)
Printed by authority of the Commonwealth Government Printer
PR766625
1 [2011] FWAFB 975.
2 [2018] FWCFB 901.
3 Witness Statement of Mark Cavanagh at [2].
4 DCB at p17-18.
5 Applicant’s Outline of Submissions at [14].
6 DCB at p20.
7 DCB at p21.
8 DCB at p28.
9 DCB at p32.
10 DCB at p37.
11 DCB at p30-31.
12 DCB at p37.
13 DCB at p35.
14 DCB at p39.
15 DCB at p41.
16 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
17 Ibid.
18 Respondent’s Outline of Submissions at [10].
19 Respondent’s Outline of Submissions at [11].
20 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
21 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
22 Ibid.
23 Respondent’s Outline of Submissions at [14].
24 Respondent’s Outline of Submissions at [13].
25 Respondent’s Outline of Submissions at [12].
26 Ibid.
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
[2023] FWC 2378
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27 [2016] FWCFB 6963.
28 Applicant’s Outline of Submissions at [21].
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb6963.htm
