DECISION

Fair Work Act 2009
s.365—General protections

Robert Douglas Webb
v
Minterra Pty Ltd
(C2021/2584)

General protections dismissal dispute - application filed out of time – not satisfied of exceptional circumstances – application dismissed.

[1] This decision concerns an application by Mr Robert Douglas Webb for the Commission to deal with a general protections dispute involving dismissal from his employment with Minterra Pty Ltd (Company), 1 made under s.365 of the Fair Work Act 2009 (Cth) (Act).

[2] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). It is not contentious that:

•  Mr Webb’s dismissal took effect immediately on 16 February 2021; and

•  This application was lodged with the Commission on 6 May 2021.

[3] Accordingly, the period of 21 days ended at midnight on 9 March 2021 and the application was filed 58 days out of time. The Applicant asked the Commission to grant a further period for the application to be made under s.366(2). The Company opposed.

[4] Not being satisfied that there are exceptional circumstances taking into account the factors at s.366(2), I have determined not to allow Mr Webb a further period within which to lodge and the application is therefore dismissed. The reasons follow.

Context

[5] On 9 March 2021 Mr Webb lodged an unfair dismissal claim via the Commission’s online lodgement system, naming Rebus Legal Pty Ltd (Rebus Legal) as his representative and a Mr Christopher James as the nominated contact person. 2 On 17 March 2021 the Company filed and served its response, objecting to the Commission’s jurisdiction because Mr Webb exceeded the high income threshold.3 Nonetheless there was a conciliation before a Commission staff conciliator on 24 March 2021 and the unfair dismissal claim was withdrawn that same day.4

[6] On 6 May 2021 this general protections application was sent by email to the Commission’s registry, naming Rebus Legal as representative and Mr James as the nominated contact person. 5 By this email, Mr James purported to have lodged Mr Webb’s general protections claim “at our offices on 21 April 2021 via the Fair Work Commission’s website’s online application process” (sic.). The Commission has no record of such attempt or of any technology outage on that date and the file properties of the attached PDF document show most recent “modification” of the file on 5 May 2021. It was acknowledged in the course of these proceedings that, without more, the general protections application would not be taken as received by the Commission until 6 May 2021.6

[7] As the Company objected to conciliation pending determination of Mr Webb’s request for an extension of the statutory time for filing, the matter was allocated to my chambers. A mention was convened on 10 June 2021 and directions made for the filing of evidence and submissions in relation to the jurisdictional issue. The following materials were filed in advance of the hearing:

•  Witness statement of Robert Webb, signed 25 June 2021 (First Statement of Mr Webb);

•  Witness statement of Jemin Jo (employee of Rebus Legal and Australian legal practitioner), signed 25 June 2021;

•  Applicant’s outline of submissions, filed 25 June 2021;

•  Company’s submission in response, with documents attached, filed 7 July 2021;

•  Supplementary witness statement of Robert Webb, signed 15 July 2021 (Second Statement of Mr Webb);

•  Outline of applicant’s further submissions, filed 16 July 2021.

[8] The matter was heard on 19 July 2021. The Company did not oppose Mr Webb’s request to be represented by Mr Jo of Rebus Legal, which was granted pursuant to s.596 of the Act.

[9] At the outset of the hearing, I raised a concern with Mr Webb’s representative that the evidence filed did not establish certain facts and dates and allowed further evidence to be adduced of Mr Webb at the hearing. At the conclusion of the hearing, I regarded it appropriate to allow a further opportunity for Mr Webb to produce records in support of his evidence given to the Commission - any telephone records; text messages, emails; and any Rebus Legal invoices that show itemisation of work performed and charged to Mr Webb. The following further materials were filed after the conclusion of the hearing:

•  Further witness statement of Robert Webb, signed 26 July 2021 (Third Statement of Mr Webb);

•  Witness statement of Farris Faris (Legal Practice Director of Rebus Legal Pty Ltd and Australian legal practitioner), signed 26 July 2021;

•  Witness statement of Gordon Yenkenna (Legal Practice Director of Rebus Legal Pty Ltd and Australian legal practitioner), signed 26 July 2021,

(certain records were annexed).

[10] The Company did not oppose the further materials (although such opportunity was afforded). I have determined to receive that evidence, with some caution (as indicated below).

The evidence

[11] From July 2018 until his dismissal on 16 February 2021, Mr Webb was employed by the Respondent in operational drilling roles (most recently, as Drill & Raise Bore Manager). 7

[12] Mr Webb filed an initial witness statement which said that, as a result of his dismissal, he met with Mr James from Rebus Legal and was advised to lodge an unfair dismissal claim. 8 According to the Legal Practice Directors of Rebus Legal, Mr James was believed to be an Australian legal practitioner of more than 5 years’ experience.9 There is no evidence of the date on which Mr Webb engaged Rebus Legal, the date of the meeting to which Mr Webb refers or of specific instructions or advice given regarding the unfair dismissal claim. However the phone records produced after the hearing reflect that Mr Webb had communicated with Rebus Legal since at least 26 February 2021 and Rebus Legal was named as representative on the application at the time of filing.10

[13] The factual context at paragraph [5] of this decision, regarding the subsequently withdrawn unfair dismissal claim, is not disputed. The unfair dismissal claim was lodged on the twenty-first day after Mr Webb’s dismissal. It is not disputed and the evidence supports a finding that Mr Webb was not “protected from unfair dismissal” in accordance with ss.396(b) and 382 of the Act because: his earnings exceeded the statutory threshold; he was employed in a management role and there is no suggestion in his appointment to that role (or in any of the materials before the Commission) that a modern award covered or an enterprise agreement applied to his employment. It is also not contentious that both Mr Webb and Mr James were on notice of this jurisdictional issue since at least 17 March 2021. Mr Webb gave evidence that he queried the Company’s objection with Mr James who replied with words to the effect that he should “not worry about it”. 11

[14] The conciliation of the unfair dismissal claim took place on 24 March 2021 and was attended by Mr Webb, Mr James as his representative and Ms Nicole Mann (HR Manager of the Company). Mr Webb gave evidence that: “I was informed by the Conciliator that I lodged the wrong type of application and that a General Protections Dismissal application should have been filed instead as I was above the high-income threshold”. 12 Ms Mann contended that the Commission’s staff conciliator told both parties that a general protections application was already out of time and there would need to be “an extension of time hearing” if Mr Webb was going to file such claim. When put to him in cross-examination, Mr Webb did not deny those remarks were made but said he thought they related to the unfair dismissal application.

[15] The unfair dismissal claim was subsequently withdrawn, and the Company received formal notification of this, on 24 March 2021. 13

[16] Mr Webb’s evidence about his instruction to Rebus Legal to file a general protections claim was somewhat inconsistent – in writing and only in reply to the Company’s materials, he said the instruction was given “on or around 24 March 2021” and orally before the Commission he came to recall that it was given verbally, immediately after the conciliation conference ended and that Mr James took a note of it. 14 No such note was produced. In response to his representative’s question in evidence at the hearing, Mr Webb clarified that they did not commence “filling out” the application form on 24 March 2021.

[17] This general protections claim was ultimately filed with the Commission on 6 May 2021. 15 As outlined at paragraph [6] of this decision, it was not pressed on behalf of Mr Webb that there was a failed attempt to file this application on 21 April 2021 and, on the evidence before the Commission, I would not consider such contention persuasive or credible.

[18] Mr Webb’s evidence about his communications (and attempts to communicate) with his representative in the period following withdrawal of the unfair dismissal claim on 24 March 2021 until filing this claim on 6 May 2021 were ultimately supported, to some extent, by records. When pieced together, those records establish a sequence of events after the withdrawal of the unfair dismissal claim on 24 March 2021, as follows:

•  On 29 March 2021, there was an attempt by Mr Webb to contact Mr James (mobile to mobile) but they did not speak and Mr Webb left a voicemail message. 16

•  On 30 March and 6 April 2021, Mr Webb contacted Mr James (mobile to mobile) and they spoke on both dates. There is no record of those discussions and Mr Webb can not recall exactly what was said on those occasions. 17

•  On 9 April 2021, Mr Webb attempted to contact Mr James but there was no answer and he hung up. The Rebus Legal call records also reflect a call on this date (which may have been a separate attempt or may have been a diverted call). 18

•  On 13 April 2021, Mr Webb made 2 attempts to contact Mr James (mobile to mobile) but there was no answer, he hung up on both occasions, and then sent a text message. That text message was produced after the hearing. 19 It states:

Hi Chris,

It seems your to busy to address my case, I’ve been extremely patient with the time frames and you haven’t made any progress throughout this time.

I need to address the problem I have with my previous employer so I can move forward. I have lost faith in the promises made to act on my application.

I have paid my $1150 retainer as requested after my first appointment. After the fees were deducted from that for the first conciliation I haven’t had anything done.

What is to happen from here.

1: the firm actions the case with reassurance there’s a view of case winning evidence.

2: the firm agrees they can’t handle / haven’t up held their end of the agreement and refunds the outstanding amount and we go out different ways.

It’s up to you Chris!

If I haven’t heard back tomorrow I’ll assume it’s the second option and will send an email confirming with the firm of this situation.

Rob.

(sic.)

•  On 14 April 2021, Mr Webb attempted to contact Mr James (mobile to mobile) 4 times. Of those attempts, they spoke once although there is no record of their discussion and Mr Webb can not exactly recall what was said. 20

[19] According to Mr Webb’s oral evidence, he was returning to Perth from his newly obtained employment (on a fly in, fly out roster) when he sent the text message of 13 April 2021. He distinctly recalled that, on 15 April 2021, he had returned to Perth and met with Mr James that evening until around 8.00PM at the Rebus Legal offices. He said that they had started working on the application during this meeting but it was not finished by the conclusion of the meeting. Mr Webb’s recollections of his roster differ in parts which does not assist in resolving this factual issue. On the materials before me, I accept that a meeting took place on 15 April 2021 given it logically fits in sequence when regard is had to the balance of other evidence before the Commission and because I considered Mr Webb was clear and cogent in his recollection in oral evidence that the meeting took place on a Thursday evening (15 April 2021 was a Thursday). Also in oral evidence, in answer to my questions about the 15 April 2021 meeting, Mr Webb gave the following responses:

•  He had kept asking Mr James what the timeframe for filing this application was and Mr James could not provide any “real” answer and kept saying he would check.

•  He was “very concerned, thinking there would be a cut off point and that would be the end of the case”.

•  He was concerned about the timeframe for filing because of his experience with the first unfair dismissal application where there was a 21 day timeframe.

•  He was “getting quite frustrated at the time and to be honest I was almost ready to pull the pin from the plans I had working with [Mr James]” but he was “basically relying” on Mr James’ expertise in that area.

[20] On 16 April 2021, there was a text message exchange between Mr Webb and Mr James. Screenshots were produced after the hearing. 21 Those text messages said:

At 5.36PM:

Hi Rob. I’m working on your application now and will try to get it out to you tonight.

Subsequently (precise time not recorded):

Ok Chris

Thanks for the update

[21] Mr Webb gave written and oral evidence that then, on 17 or 19 April 2021, he “finally” received a draft of the application. 22

[22] The Third Statement of Mr Webb, filed after conclusion of the hearing, said that he met with Mr James in person at Rebus Legal’s offices “on or about 20 April 2021” and “proceeded to draft the entirety of the General Protections Application then”. 23 Mr Faris, an Australian legal practitioner, gave evidence of having witnessed Mr Webb at the Rebus Legal offices and of having arranged for him to meet with Mr James later that same day, also “on or about 20 April 2021”.24 I accept that Mr Webb attended a meeting with Mr James at Rebus Legal’s offices on or about 20 April 2021. However, the suggestion that the application was drafted in its entirety on 20 April 2021 is at odds with Mr Webb’s earlier written and oral evidence - which was clear that he had attended the offices of Rebus Legal on the Thursday evening of 15 April 2021 and worked on (but not completed) the application with Mr James, before receiving the draft application on 19 April 2021. I prefer the evidence that a draft application was being prepared as of the meeting of 15 April 2021 because it was frank, anchored to a clear recollection and consistent with other evidence given to the Commission.

[23] Mr Webb also gave evidence that, “on or about 21 April 2021”, he had provided to Mr James a copy of the general protections application with his requested amendments and instructed him to lodge it. 25 An email from Mr Webb to Mr James of 21 April 2021 was produced after the hearing.26 It was sent at 11.11AM and said:

Hey Christopher,

Made some changes including Bella’s last name and position. And a couple others which you can see.

All else is good to go.

[24] The document attached to that email is a general protections application with changes hand marked on the attached application form, signed with Mr Webb’s name and dated 21 April 2021 (in the same handwriting as that of Mr Webb’s statements filed in these proceedings).

[25] The call records produced after the hearing establish that:

•  On 21 April 2021, Mr Webb contacted Mr James at 3.05PM and 6.09PM (mobile to mobile) and they spoke at 6.09PM but there is no note and Mr Webb does not recall exact details of their conversation other than that it “was about the changes that I had requested regarding the General Protections application”. 27

•  On 27 April 2021, Mr Webb contacted Mr James (mobile to mobile) and they spoke but there is no note and Mr Webb does not recall exact details of their conversation although Mr Webb believes “that it may have been me following up as to the status of General Protections Application and if it had been filed. I recall Mr. James stating words to the effect that he filed the General Protections Application, but he did not receive any confirmation the Fair Work Commission” (sic.). 28

•  On 3 May 2021, Mr Webb made 4 calls to Mr James (mobile to mobile), one of which was answered by Mr James but there is no note and Mr Webb does not recall exact details of their conversation although Mr Webb believes “I was chasing up if the Fair Work Commission processed the General Protections Application” and that Mr James said he would get back to him later that day. 29

•  On 5 May 2021, Mr Webb attempted to contact Mr James but there was no answer. The Rebus Legal call records also reflect a call on this date. 30

[26] Mr Yenkenna also filed a witness statement after the conclusion of the hearing, which stated that he spoke with Mr Webb on 5 May 2021 and recalled Mr Webb being upset – he had been trying to reach Mr James but was “unable to do so”. Mr Yenkenna said he had asked Mr James to contact Mr Webb but did not know whether he had done so. 31

[27] By his email to the Commission’s registry of the following day, Mr James purported to have contacted the Commission by telephone on 5 May 2021 and to have spoken with a staff member. 32

[28] At 1.37PM on 6 May 2021, an email was sent from Mr James to the Commission’s Perth registry attaching a general protections application form in PDF. In cross examination, Mr Webb could not recall having signed the “final” application and said he never saw a “final” application. By the file properties, the file was modified on 5 May 2021. A comparison of the application form filed on 6 May 2021 with the application form attached to the 21 April 2021 email reveals that the hand marked amendments emailed by Mr Webb on 21 April 2021 had been made and the signature page dated 21 April 2021 was included with those amendments.

[29] The application acknowledged that it was filed outside the statutory timeframe and included the following explanation of the reason for the delay in filing:

Having obtained legal advice I submitted an application for unfair dismissal within the 21 day period immediately following my dismissal. The application for unfair dismissal was discontinued following the conciliation conference of 24 March 2021. This application was made immediately after seeking a barrister’s opinion as to out of time applications.

My former employer is a member of the Australian ASX 200 list and trades on the Australian Securities Exchange. As such, little if any prejudice caused to them by having this application heard out of time.

[30] From around 3 June 2021, Mr James was no longer employed by Rebus Legal and Mr Jo (Australian legal practitioner, of Rebus Legal) took carriage of Mr Webb’s matter. 33

Are there exceptional circumstances?

[31] Having established that the application was filed 58 days after the expiry of the statutory timeframe, the application can only proceed if the Commission is satisfied that there are ‘exceptional circumstances’.

[32] 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 nor unprecedented, nor even very rare. 34 Exceptional circumstances may 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.35

[33] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[34] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take 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 like position.

[35] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

[36] As an initial observation, having identified various inconsistencies and vagaries in the evidence of Mr Webb, wherever possible I have preferred evidence of communication records to that of subsequent recollections recounted without notes or records in support. The following indicates the evidentiary source which I have preferred. For completeness, any recitations of non-contentious evidence constitute findings I have made.

Reason for the delay – s.366(2)(a)

[37] 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 or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered. 36

[38] Mr Webb accepted that the Commission did not receive this application until 6 May 2021 and asked the Commission to find that the “primary reason” for his delay in filing this general protections application was due to representative error in lodging the claim as an unfair dismissal application when it should have been lodged as a general protections claim. 37 The Company submitted that this did not explain the delay in filing the general protections application after Mr Webb and his representative were notified that the unfair dismissal claim could not succeed, since at least 17 March 2021.38

[39] In reply, Mr Webb contended that his representative’s failure to promptly file this application despite his instructions was also a matter of representative error and, at the hearing, his representative conceded the case as an unfortunate matter involving a “multitude of errors” on the part of the representative. Also at the hearing, the Company contended that Mr Webb was placed on notice that the claim was already late (by the Commission’s staff conciliator) at the Commission conference on 24 March 2021 and the lengthy period of time between then and the filing of this application on 6 May 2021 was inexcusable and not exceptional.

[40] A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application for an extension of time. 39 In Clark v Ringwood Private Hospital,40 a Full Bench decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

•  Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged;

•  A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant;

•  The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged; and

•  Error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted. 41

[41] It is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing a dismissal related application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. 42 However, as the Full Bench explained in Long v Keolis Downer,43 “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”. In this context, it is not necessary for the representative to have provided an acceptable explanation for its conduct.44

[42] Having regard to all of the evidence before the Commission and the findings made above, errors by Mr Webb’s representative can be identified in the filing of an unfair dismissal claim without making the proper inquiries and perhaps also in pursuing the unfair dismissal claim to conciliation in the knowledge that it must fail. Mr Webb was not assisted by the error(s) and, at least until the information provided by the Commission’s staff conciliator on 24 March 2021, it is understandable that Mr Webb relied on his representative’s guidance. To the extent that it is relevant to the current consideration and contributed to the delay, I consider at least that period to be acceptably or reasonably explained by representative error.

[43] I am not satisfied that there was an instruction to file this general protections claim (given by Mr Webb to Mr James or Rebus Legal) until 21 April 2021 at the earliest. Despite substantial opportunity being afforded, Mr Webb’s claim to the contrary was not supported by a file note, a letter of engagement or any other record. Further, such suggestion is at odds with the text message of 13 April 2021, by which Mr Webb conveyed his clear instruction that the case be actioned only with a view that the case had strong prospects of success (he had plainly not received such advice by this time) and acknowledged, in the alternative, that the claim would not be filed at all.

[44] A careful analysis of the evidence relating to the period after the unfair dismissal claim was withdrawn on 24 March 2021 until the email of 21 April 2021 reflects that:

•  Nothing was done by Mr Webb until his attempted phone call on 29 March 2021 (that is, 5 days after the withdrawal of the unfair dismissal claim).

•  Over the next (15 day) period until 13 April 2021 there was sporadic effort made by Mr Webb being 3 phone calls on 30 March, 6 and 9 April 2021 (2 resulted in conversations with his representative).

•  On 13 April 2021, Mr Webb sends a text message to Mr James which expresses frustration, and that if the claim was not actioned with a view of strong prospects, then he would effectively end the relationship or engagement, by email on 14 April 2021.

•  On 14 April 2021, there were phone calls (one resulted in conversation with his representative) but there is no email or evidence of cessation of the engagement.

•  I have found that the draft application was underway as of a meeting between Mr Webb and Mr James on 15 April 2021 and a follow up text was sent by Mr James on 16 April 2021 who did not provide a draft application to Mr Webb until 17 (or perhaps 19) April 2021. There was then some latency (and certainly no urgency) on Mr Webb’s part who did not return his amendments to Mr James for some 4 (or perhaps 2) days, on 21 April 2021.

[45] However, even if the claim was drafted entirely on 20 April 2021 (which evidence I do not prefer, for reasons explained above) then it would still remain the case that, having acknowledged on 13 April 2021 that no progress had been made and that he did not think anything had been done since the first conciliation; Mr Webb does not end the relationship on 14 April 2021 (as foreshadowed); and, on 16 April 2021, responds with gratitude to Mr James’ suggestion that he would try to provide the draft by that evening but does not follow up again until 20 April 2021.

[46] I am satisfied that Mr Webb was not completely ignorant as to the timeframe for filing. By his own evidence, during the period 13 to 21 April 2021, Mr Webb was concerned about the deadline for filing and was somewhat familiar with the Commission’s jurisdiction having made the earlier claim. Even if he did not receive the necessary guidance from his representative, and did not understand the guidance of the Commission’s staff conciliator on 24 March 2021, then there are a range of publicly available sources of information from which Mr Webb could have obtained appropriate guidance in this respect.

[47] There is no explanation before the Commission as to why Mr Webb did not escalate matters or end the engagement with Rebus Legal on 14 April 2021 (as foreshadowed in his 13 April 2021 text message), engage alternate representation or attend to filing the application form (a relatively straightforward exercise to at least commence proceedings) himself. By this time, there appears to be limited (if any) valid basis for Mr Webb to have relied blindly or without question on his representative to properly represent his interests. Mr Webb was concerned and upset, and by 13 April 2021 told his representative directly that he had “lost faith in the promises made to act on his application”. That he did not avail of other options and chose to persist with his representative is a matter for Mr Webb but is not an acceptable or credible explanation for such lengthy delay, nor is it exceptional.

[48] Even accepting that Mr Webb gave his instruction to file the claim on 21 April 2021, when regard is had to the evidence of Mr Webb’s further attempts to contact Mr James on 27 April, 3 and 5 May 2021 and escalation to Mr Yenkenna (Director of Rebus Legal) on 5 May 2021 I consider it likely that Mr Webb was at least aware that his application may not have been filed, and certainly he had not received confirmation of such. In oral evidence, Mr Webb also confirmed that he never saw the final application and did not believe he had signed the final version of the application indicating he did not consider the signed form which he returned on 21 April 2021 to have been final. There is no evidence that Mr Webb contacted the Commission directly to so verify and, by 21 April 2021, Mr Webb was certainly in possession of a form which he had already signed and might have lodged himself.

[49] It is not controversial, and I accept that Mr Webb’s representative did not act promptly:

•  after the unfair dismissal claim was withdrawn on 24 March 2021, to advise Mr Webb about whether to make a general protections claim; or

•  accepting there was an instruction to file the claim on 21 April 2021, in attending to filing this general protections claim after this time,

and did not act with the diligence that is expected of a legal practitioner in these respects.

[50] However, the delay in this case is lengthy. Mr Webb contends representative error was the “primary” reason for his delay, though other reasons were not proffered. In any event, it is not enough for an applicant to raise representative error as a shield - the conduct of an applicant in cases of this kind is a central consideration.

[51] I have carefully considered the particular circumstances of this case. I accept that the representative error(s) contributed to the delay in filing this general protections application and although I did not understand Mr Webb to contend it to be a reason, I have considered the effect of Mr Webb’s subsequent employment and the impact that the related travel and remoteness may have had. However this is not simply a case where a clear instruction was given by an applicant to a legal representative, to lodge an application in a timely manner, and there was a failure to do so. Mr Webb has not established a clear instruction given in a timely manner after withdrawal of his unfair dismissal claim, he was by then privy to the relevant information, was aware of other alternative courses of action and did not act to protect his own interests. When all of the circumstances are considered, either individually or together, I do not consider there to be a reasonable, acceptable or credible explanation for the delay in this case. This consideration weighs strongly against a finding of exceptional circumstances.

[52] For completeness, beyond the initial application form, there was no mention in any of the materials filed since the original application, or at the hearing, of a barrister having provided an opinion, the barrister’s name was not mentioned nor were there any details as to how this reasonably explained the delay. In any event, I would not accept it was necessary or reasonable in the circumstances to await a barrister’s advice before proceeding to file the application form. Neither did I understand Mr Webb to contend that he relied on “advice” that he said he received from the Commission’s staff conciliator that he “should have brought a general protections claim” in deciding to pursue this application and I would not consider such contention to be credible especially given Mr Webb attended the conciliation conference with representation of a lawyer.

Action taken to dispute the dismissal – s.366(2)(b)

[53] In respect of s.366(2)(b), I am required to take into account any action taken by Mr Webb to dispute the dismissal or to place the employer on notice of his intention to dispute the dismissal.

[54] The Company was on notice of Mr Webb’s intention to dispute his dismissal by the unfair dismissal application filed on 9 March 2021, and in the conciliation conference of 24 March 2021 in which at least the possibility of a general protections claim was discussed with both parties.

[55] This circumstance weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer – s.366(2)(c)

[56] The application in this matter contends that there would be no prejudice to the Company as a “member of the Australian ASX 200 list” that trades on the Australian Stock Exchange. In submissions to the Commission, it was conceded that there is prejudice to the Company in that this claim was lodged “a significant amount of time” after the dismissal. 45

[57] I reject the relevance of the contention contained in the original application and accept Mr Webb’s concession that the delay is lengthy, but beyond the obvious inconvenience cannot identify any particular prejudice that would accrue to the Company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

Merits of the application – s.366(2)(d)

[58] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[59] On the materials before the Commission, it is evident that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. Mr Webb has a prima facie case, to which the Company raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position – s.366(2)(e)

[60] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

[61] In written submissions, other cases involving representative error were drawn to the Commission’s attention and on behalf of Mr Webb it was contended that of Vanessa Pitrau v Barrick Mining Services 46 is relevant to this consideration. As I understood it, the contention was that this case is similar because it also involved the primary issue of the wrong type of application being lodged due to representative error.47

[62] The authorities raised are factually distinct to that of the present case and I am not persuaded that this consideration weighs in favour of a finding of exceptional circumstances. I consider this to be a neutral consideration.

Conclusion

[63] For the above reasons, Mr Webb did not file this application within the statutory timeframe.

[64] Having regard to the matters I am required to take into account under s.366, I am not satisfied that the requisite exceptional circumstances exist. The absence of a reasonable and acceptable explanation for the delay in filing the application weighs strongly against a finding of exceptional circumstances and Mr Webb’s attempt to dispute the dismissal weighs only slightly in favour. The other factors are considered neutral. In my view, and on balance taking into account all the matters at s.366, the circumstances of this case are not exceptional.

[65] For the above reasons, I have determined to not grant an extension of time under s.366(2). Accordingly, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr J. Jo for the Applicant

Ms N. Mann of the Respondent

Hearing details:

2021.
Melbourne (by video)
19 July.

Printed by authority of the Commonwealth Government Printer

<PR734593>

 1   Amendment to the entity named allowed by consent of the Respondent, pursuant to s.586(a), at the hearing on 19 July 2021.

 2   Witness Statement of Mr Jo signed 25 June 2021 at 8-9 and Annexure JJ1.

 3   Witness Statement of Mr Jo signed 25 June 2021 at 10-11 and Annexure JJ2.

 4   Witness Statement of Mr Jo signed 25 June 2021 at 14; Respondent’s Outline of Submissions signed 7 July 2021 at 12.

 5   Witness Statement of Mr Jo signed 25 June 2021 at Annexure JJ3.

 6   Second Statement of Mr Webb at 31; also accepted in submissions made at the hearing.

 7   First Statement of Mr Webb signed 25 June 2021 at 15-16, 20-21 and Annexures RW3 and RW4.

 8   First Statement of Mr Webb signed 25 June 2021 at 27.

 9   Witness Statement of Mr Yenkenna signed 26 July 2021 at 7; Witness Statement of Mr Faris signed 26 July 2021 at 7.

 10   Witness Statement of Mr Yenkenna signed 26 July 2021 at GY1; Witness Statement of Mr Jo signed 25 June 2021 at Annexure JJ1.

 11   First Statement of Mr Webb signed 25 June 2021 at 31.

 12   First Statement of Mr Webb signed 25 June 2021 at 32-33.

 13   Witness Statement of Mr Jo signed 25 June 2021 at 14; Respondent’s Outline of Submissions signed 7 July 2021 at 12.

 14   First Statement of Mr Webb signed 25 June 2021 at 34; Second Statement of Mr Webb signed 15 July 2021 at 23; and in oral evidence at the hearing.

 15   Witness Statement of Mr Jo signed 25 June 2021 at Annexure JJ3; Second Statement of Mr Webb signed 15 July 2021 at 31.

 16   Third Statement of Mr Webb signed 26 July 2021 at 21.

 17   Third Statement of Mr Webb signed 26 July 2021 at 22-24.

 18   Third Statement of Mr Webb signed 26 July 2021 at 25.

 19   Third Statement of Mr Webb signed 26 July 2021 at 26 and Annexures RW6 and RW7.

 20   Third Statement of Mr Webb signed 26 July 2021 at 27-29.

 21   Third Statement of Mr Webb signed 26 July 2021 at Annexure RW6.

 22   Second Statement of Mr Webb signed 15 July 2021 at 29 (17 April); and in oral evidence at the hearing (19 April).

 23   Third Statement of Mr Webb signed 26 July 2021 at 39-43.

 24   Witness Statement of Mr Faris signed 26 July 2021 at 9.

 25   Second Statement of Mr Webb signed 15 July 2021 at 30.

 26   Third Statement of Mr Webb signed 26 July 2021 at Annexure RW5.

 27   Third Statement of Mr Webb signed 26 July 2021 at 30-31.

 28   Third Statement of Mr Webb signed 26 July 2021 at 32.

 29   Third Statement of Mr Webb signed 26 July 2021 at 33 – 35.

 30   Third Statement of Mr Webb signed 26 July 2021 at 35; Witness Statement of Mr Yenkenna signed 26 July 2021 at Annexures GY1 and GY2.

 31   Witness Statement of Mr Yenkenna signed 26 July 2021 at 25-31.

 32   Witness Statement of Mr Jo signed 25 June 2021 at Annexure JJ3.

 33   Witness Statement of Mr Jo signed 25 June 2021 at 7; Witness Statement of Mr Faris signed 26 July 2021 at 6.

 34   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

 35   Ibid.

 36   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

 37   Applicant’s outline of submissions,signed 25 June 2021 at 19-22.

 38   Respondent’s outline of submissions signed 7 July 2021 at 10-11.

 39   See, for example, Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1; Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728; Qantas Ground Services Pty Ltd t/a QGS v Rogers [2019] FWCFB 2759 (QGS v Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802; Long v Keolis Downer [2018] FWCFB 4109 as cited in [2020] FWC 3033.

 40   (1997) 74 IR 413 at 418-419.

 41   As summarised in Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1.

 42   QGS v Rogers at [17].

 43   [2018] FWCFB 4109 at [60].

 44   QGS v Rogers at [16].

 45   Outline of applicant’s submissions filed 25 June 2021 at 40.

 46   [2012] FWA 8363.

 47   Outline of applicant’s submissions filed 25 June 2021, at 17 and 18.