Fair Work Act 2009
s.365—General protections

Peter Reisenleiter
v
Workpac
(C2021/8482)

Application to deal with contravention involving dismissal – application made outside of statutory time frame – application for extension of time granted.

[1] On 10 December 2021, Peter Reisenleiter (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by Workpac (the Respondent). It is uncontentious that the application was lodged one day after the 21 day time limit imposed by s.366(2) of the Act.

[2] The question before me is whether an extension of time should be granted. A hearing was held before me via Microsoft Teams on 24 January 2022, at which the Applicant appeared for himself and Shannon Masuino appeared for the Respondent.

[3] By way of background, the Applicant commenced employment with the Respondent on 14 May 2021 as a casual “operator” at the Jabiru mine in the Northern Territory, which is operated by Rio Tinto. The Applicant was advised, via telephone, that his employment had been terminated, 18 November 2021 effective immediately. The Applicant was subsequently sent a letter on the same day confirming that he had been dismissed.

Was the application lodged within time?

[4] Section 366(1) of the Act requires that an application to deal with contraventions involving dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.

[5] It is uncontentious that the Commission received the Applicant’s F8 application on 10 December 2021. The Applicant accepted that this was one day outside of the 21-day period prescribed by s.366(1) of the Act, as he was required to file his application on or before 9 December 2021. Consequently, for the Applicant’s application to proceed, he must obtain an extension of time under s.366(2) of the Act. The Respondent opposes the granting of such an extension.

Should a further period be granted?

[6] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[7] The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia considered the meaning of ‘exceptional circumstances’, concluding:

“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.” 2

[8] Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.366(2) of the Act.

[9] The Applicant’s submissions may be summarised as follows. In his Form F8 application the Applicant selected that he was making his application within the 21 calendar days of his dismissal taking effect, although also stated that the reason for his delay in filing his application outside the statutory timeframe was that “FWC wanted other form”.

[10] It is useful to briefly set out the timeline of events as described by the Applicant:

(a) Following his dismissal, the Applicant contacted various agencies including the Northern Territory Anti-Discrimination Commission, the Human Rights Commission and the “Ombudsman”. The Applicant states he had to wait as he could only deal with one Department at a time. The “Ombudsman” directed the Applicant to the Commission and advised him of the requirement to file his application within 21 days of his dismissal.

(b) On Thursday 9 December 2021, the Applicant lodged a Form F2 unfair dismissal application in the Brisbane registry. The unfair dismissal application was processed as incomplete as the Respondent’s information was missing and the Applicant was directed to provide the missing details.

(c) Following lodgement of the unfair dismissal application on 9 December 2021, the Applicant called the registry. During this telephone call the Applicant says he was advised that he should instead have completed a Form F8 – general protections application involving dismissal. The Applicant was unable to recall the reasons that the Commission staff member provided as to why a Form F8 was more appropriate. The Applicant’s evidence is that he had a fair idea about the difference between an unfair dismissal application and a general protections application after reviewing the Commission website, although he finds all of the laws confusing.

(d) On Friday 10 December 2021, the Applicant lodged an F8 application. On Saturday 11 December 2021, the Applicant says that he emailed the Commission enquiring as to whether the Form F8 had been received as that was the form he was advised to file.

(e) On Monday 13 December 2021, the Applicant received a reply from the Commission advising that the Respondent details had still not been provided. On the same day, the Applicant again enquired about whether his Form F8 application had been received. The Applicant was advised that the F8 had been received and he elected to discontinue his unfair dismissal application.

(f) On 22 December 2021, the Applicant emailed the Commission advising that he spoke to someone on the 21 day deadline and sent the forms in but the lady that he spoke to on the day gave him the wrong paperwork.

[11] I note that pursuant to Directions issued on 24 December 2021, the Applicant was required to file and serve material in support of his case for an extension of time pursuant by 12 January 2022, although failed to do so by this time. The Applicant was then granted a short extension until 20 January 2022, which he complied with.

[12] The Respondent claims that there are no exceptional circumstances in this case. The Respondent’s submissions may be summarised as follows:

(a) The Respondent does not consider the Applicant’s reason for delay, being that the “FWC wanted other form” amounts to exceptional circumstances to excuse him from complying with the strict filing timeframe, particularly in circumstances where the original application filed by the Applicant was incomplete and he was already afforded a further opportunity to furnish a complete application.

(b) The Respondent further submits that the Applicant has now, on two occasions, failed to file material with the Commission within the required timeframe, referring to the Applicant’s non-compliance with my Directions of 24 December 2021.

(c) The Respondent has been prejudiced by the Applicant’s delay as it has had to expend time and money in filing submissions by the required date.

(d) The Applicant was dismissed after he failed to comply with a condition of entry to his work site, as mandated by the Northern Territory Government, that he provide evidence of his vaccination status. The Respondent submits that access to site is an inherent requirement of his role. The Applicant was issued a stand down letter on 13 November 2021 and was given five days to provide the required evidence of vaccination to allow him site access. On the basis that the Applicant did not provide the required evidence by 18 November 2021, and therefore was unable to gain access to his work site, his employment was terminated. The Respondent did search for other suitable assignments for the Applicant but was unsuccessful.

(e) Ms Masuino states that there were other employees who did not meet site entry requirements for the same reasons. Ultimately, those employees went through the same process and were “treated the same way” as the Applicant.

Consideration

Section 366(2)(a) – The reason for the delay

[13] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“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 reliant matters and the assignment of appropriate weight to each.”  5

[14] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 6

[15] For the reasons outlined below, I am satisfied that the Applicant’s circumstances qualify as exceptional and warrant permission being granted for an extension of time.

[16] I accept that the Applicant filed an unfair dismissal application within the required statutory period. The Applicant was then advised to instead file an F8 general protections application involving dismissal, which he did the following day. The Applicant has not alleged that the advice provided by the Commission was incorrect or misleading. Simply, the Applicant was advised by the registry staff that he had completed the wrong form.

[17] While an unfair dismissal application and a general protections application are distinct applications, I find it persuasive that the Applicant did file an application in the Commission within the required timeframe, albeit on the last day of the 21 day period. The reasons for advising the Applicant to instead file an F8 are not clear, or indeed particularly relevant to this decision. What is relevant is that I accept the Applicant’s evidence that he was in fact told to file another application. Had the Applicant not been advised to file a different application, these proceedings dealing with an extension of time would not exist. This factor weighs positively in favour of the Applicant.

Section 366(2)(b) - Action taken to dispute the dismissal

[18] The Applicant claims to have made a number of appeals to the Respondent, the Mine Operator and the State government disputing the legality of the requirement to be vaccinated and to show proof of vaccination, all of which have been unsuccessful. This weighs slightly in favour of the Applicant.

Section 366(2)(c) - Prejudice to the employer

[19] The Respondent has submitted that it has been prejudiced by the Applicant’s delay by having to file submissions in the current proceedings. This is to be expected in any case where an entity finds themselves a Respondent to proceedings. The Applicant did not address this point in his evidence. I consider this factor to be neutral.

Section 366(2)(d) - Merits of the Application

[20] In Kornicki v Telstra-Network Technology Group, the Commission considered the principles applicable to the exercise of the discretion to extend time under 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.”  7

[21] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence of the merits of the application is rarely called at an extension of time hearing and as a result the Commission “should not embark on a detailed consideration of the substantive case.” 8

[22] Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. The facts as presented do not look to provide a strong basis for a successful application and I regard the matter as only having a slim possibility of success. Accordingly, this factor is weighs neutrally.

Section 366(2)(e) - Fairness as between the Applicant and other persons in a like position

[23] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 9

[24] The Applicant did not provide any evidence regarding relevant persons or cases that would be relevant in relation to the question of fairness between the Applicant and other persons in a similar position. At the hearing the representative for the Respondent, Ms Masuino, confirmed other employees who were dismissed for the same reasons as the Applicant, underwent the same processes and were treated the same as the Applicant. That may be so but the present class of persons in a like position would likely be someone who filed one kind of application in the Commission within time and then, allegedly on advice from the Registry, withdrawn that application after having lodged a different application. It is a rather unusual set out circumstances.

[25] Without any evidence regarding the specific circumstances of employees in a similar situation to the Applicant, I find this factor to be neutral.

Conclusion

[26] Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am satisfied that there are exceptional circumstances that would permit the granting of an extension.

[27] Pursuant to section 366(2) of the Act, the extension of time is granted. Directions will be issued listing the matter for conference.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR737981>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 [14].

 2   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [13] cited with approval in Tamu v Australia for UNHCR [2019]

FWCFB 2384 [19].

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP [9].

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP [16].

 5   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 [39].

 6   See: Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

 7   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 8   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].

 9   Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 [31].