FWA 2481
Fair Work Act 2009
s.365 - Application to deal with an unlawful termination dispute
Mr Richard James Gough
LifeAid Pty Ltd
SENIOR DEPUTY PRESIDENT RICHARDS
BRISBANE, 15 APRIL 2010
Extension of time application – exceptional circumstances – delayed response by Fair Work Ombudsman – inadvertent error – delayed response from Fair Work Australia – role of public bodies
 This matter concerns an application by Mr Richard James Gough (“the Applicant”) for Fair Work Australia (“FWA”) to allow his application made under s.365 of the Fair Work Act 2009 (“the FW Act”) despite it not being made within the stipulated time period of 60 days. 1
 The Applicant’s application was made 16 days beyond the statutory time period under s.366(1)(a) of the FW Act. Section 366(1)(b) of the FW Act makes it clear however, that FWA may allow an application not made inconformity with s.366(1)(a) of the FW Act subject to various conditions being satisfied. The FW Act relevantly reads in this regard as follows:
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA 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.
 The application before me is some 16 days out of time.
 The Applicant’s was that he decided within the statutory time period to take a course of action to contest issues relevant to the termination of his employment. He acted within the time period, some 33 days into the 60-day period, to contact an advisory service in Melbourne, JobWatch. He did so on 21 January 2010 and he was provided with information about various options he had as to how he may contest the issues which were a source of concern to him.
 He subsequently made a complaint to the Fair Work Ombudsman under the prescribed Fair Work Ombudsman form, which comprised Exhibit A2 in the proceedings. That application was made to the Fair Work Ombudsman on 10 February 2010 and was sent by registered mail, the receipt for which is before me by way of Exhibit A1. 2 The Applicant appears to have sought to make an application to the Fair Work Ombudsman in relation to discrimination in the workplace, which is a jurisdiction in which that body has some defined functions.
 The Fair Work Ombudsman did not reply to that application until 19 February 2010 - that is, until some nine days later - and one would assume that from the time the registered mail was received by the Fair Work Ombudsman a working week largely had past before it made contact with the Applicant. The Fair Work Ombudsman contacted the Applicant by telephone on 19 February 2010. This was one day after the expiry of the 60 day period.
 The conversation of 19 February with the Fair Work Ombudsman is a matter of interest.
 The Applicant’s evidence was that he was advised by the Fair Work Ombudsman (upon receipt of his workplace discrimination application) that the application that he had made to the Fair Work Ombudsman was inappropriate, for some undefined reason, and that he should make an application to Fair Work Australia in respect of a seemingly unlawful termination under either s.365 or s.773 of the FW Act. The Applicant’s evidence, in part, was as follows:
THE SENIOR DEPUTY PRESIDENT: Okay. So what happens next, Mr Gough?---What happens next - I waited. And knowing that 18 February was our shut-off date and I was getting a little bit anxious because I hadn't heard anything from the office and then I've got noted in my diary Friday the 19th. I haven't put down the particular time. I've just got written in here, "Today, Fair Work Ombudsman representative Kristen notified me the application was to the wrong department. Stated it should have gone to Fair Work Australia. Said she would not pass on the information to Fair Work Australia but will keep it on hand so that we can notify what we're going on with afterwards."
Sorry, she notified you that she would not pass it on to - - -?---To you - this office. Yes, sir.
Was there a reason for that […]?---They're different departments is what she said. I haven't written that down but at the time she said it was different departments and, "We've got nothing to do with them and this is the ombudsman's office," and that's why - but I was confused...” 3
 The relevant application to the Fair Work Ombudsman states (on page 3 thereof) that under the heading, "Please provide details of the discrimination complaint" that the Applicant makes reference to the Respondent’s CEO asking him if he has “lost it” and whether he was capable of doing his job, and stating that the Applicant was older than him and that even he forgets things, and that the CEO knew that he had post-traumatic stress syndrome prior to the decision to terminate his employment.
 That said, by the time the Applicant was advised by the Fair Ombudsman that he should make an application to FWA, he was beyond the 60 day period (by one day).
 As a consequence of accepting the Fair Work Ombudsman’s advice and discontinuing his anti-discrimination complaint with the Ombudsman, the Applicant claimed he was then required to locate and complete on his own initiative a further form for purposes of an application to FWA under s.365 of the FW Act.
 He took action in that regard on the same day he was advised by the Fair Work Ombudsman, which was 19 February 2010. He attempted (through the agency of his wife) to fax in a completed Form 8 to Fair Work Australia from his wife’s place of work.
 The Applicant was not able to complete the exercise, owing to difficulties in contacting directly the relevant personnel in the Fair Work Australia’s Brisbane office. This was because the telephone was engaged. The Applicant left a voice mail message. The Applicant did not receive a telephone call in reply (to his voice mail message of Friday, 19 February 2010) from FWA until the following Monday, 22 February 2010.
 On the Monday he made contact with Fair Work Australia and then proceeded to lodge the application form, but owing to inadvertent error, the application was not faxed to the right fax number. In effect, there was a “0” missing in the facsimile number and the facsimile did not make its way to Fair Work Australia and was therefore not lodged on 22 February 2010.
 My evidence for concluding that there had been an inadvertent error is the fact that the Applicant produced a dated and signed cover letter of 22 February 2010, which was to be sent in on that day in the original facsimile incorporated the actual fax number, and it appears that the error therefore fell at the Applicant's feet.
 In any event, the Applicant presumed that his application had been lodged with FWA as his wife, it seems, did not receive a success\failure notification from her employer’s facsimile.
 Later that week, on 24 February 2010, the Fair Work Ombudsman contacted the Applicant about his efforts to re-lodge in FWA’s jurisdiction. The Applicant advised the Fair Work Ombudsman that FWA had not responded to his application and he was concerned. But the Applicant’s evidence was that the Fair Work Ombudsman counselled him to be patient. This led to further delay. It was not until some time later (on 4 March 2010) that the Applicant took the initiative to contact FWA and discovered that his application had not been lodged successfully; a matter which he promptly remedied.
 Does the Applicant’s explanation for the delay in lodging his application assist in a finding that there were exceptional circumstances attending that lodgement date?
 In the first place, the Applicant made an application (within 60 days) to the Fair Work Ombudsman in relation to a claim, it appears, within the jurisdiction of that public body. He was then advised to make an application to FWA in relation to an alleged unlawful or discriminatory termination of his employment. By the time the Fair Work Ombudsman responded to the Applicant, nine days after the registered mail had been sent to its address, the Applicant had exceeded (by one day) the 60 day time period for an application under s.365 of the FW Act.
 The Applicant appears to have made this application in a confused state, believing that the anti-discrimination claim to the Ombudsman was in effect a claim to FWA, and the two claims, like the two organisations, were one in the same.
 It appears to me that having acted within the 60 day time period but having fallen into confusion about the identity of the correct application and public body to make that application represents a reasonable explanation for the delay in lodging the application under s.365 of the FW Act. The source of the confusion may have been with the initial advisory body; but the Applicant’s evidence does not lead me that far. That said, a confused state of mind as to the proper basis of an application to the correct public body might not itself provide an exceptional circumstance, though it might have standing for purposes of s.366(2)(b) of the FW Act.
 It does appear to me, however, to be an exceptional circumstance that the Workplace Ombudsman did not respond to the receipt of his registered mail until nine days after it was sent. I do not know why the Workplace Ombudsman did not respond with greater expedition. Nevertheless, it appears to me that where the relevant issues concern time sensitive applications, then it might reasonably be expected that a more expeditious response from the public body might be warranted. If the issue of delay in responding was attributable to the resourcing of the public body, then that would, in my view, also constitute an exceptional circumstance for purposes of the explanation of the delay on lodging the claim to FWA.
 In my view, assuming the truthfulness of the Applicant’s evidence, which was not into question, the Fair Work Ombudsman is responsible for two further, subsequent periods of delay in the application.
 The first of these delays concern the period 19 February 2010 to 24 February 2010. Despite its responsibilities within the wider rubric of FWA, the Fair Work Ombudsman did not facilitate the Applicant’s further application under s.365 of the FW Act to FWA. Having been advised on 19 February 2010 to make an application to FWA, the Applicant was left to his own devices, which led to further inadvertent delay for reasons as set out above. If the Fair Work Ombudsman had facilitated the Applicant’s time sensitive application on 19 February 2010, which I think it quite reasonably should have, his application would have been have one day out of time.
 The second delay concerns the period 24 February to 4 March 2010. Though the Applicant was agitated on his evidence by 24 February 2010 with the absence of any acknowledgement of his application from FWA, the Fair Work Ombudsman contacted the Applicant and advised the Applicant to be patient in waiting for Fair Work Australia's response to his application (regardless of its time sensitive nature).
 That advice by a public organisation established for the purposes of assisting persons in the workplace added to the delay for reasons that it caused the Applicant not to act upon his concerns with the lack of response from Fair Work Australia sooner than he did. Ultimately, he did not act until Friday 4 March 2010 (then having disregarded the Ombudsman’s advice) to contact FWA; hence the totality of the period for the delay.
 The reasons for the delay in being able to affect an application to Fair Work Australia in my view are exceptional for reasons of the various interventions of the Fair Work Ombudsman in the application process. The circumstances of this matter are exceptional in so far the Applicant was led on a course of conduct by a public body, the advice of which he was entitled to trust, and which led to a delay in his application under s.365 of the FW Act.
 The Applicant took steps within the statutory time period (within which an application under s.365 of the FW Act must be made) to seek advice and to make an application (of one kind or another to a relevant public body) through which he contested the terms on which his employment was terminated.
 The evidence gives a strong suggestion to me that the Applicant was agitating the issue of the interaction of a discriminatory conduct on the part of the Respondent in the context of the decision to terminate his employment. That is, they are matters that are dealt with in the original application to the Fair Work Ombudsman, as despatched to the Fair Work Ombudsman on 10 February 2010 by registered mail.
 In respect of s.366(2)(c) of the FW Act, I see no prejudice to the employer in respect of these matters. Nothing was put to me in that regard and it is difficult to consider that there would be any prejudice arising as a result of the period of time which we are dealing with.
 The merits of the application, of course, have not been canvassed and nor can they be canvassed in these proceedings with any care or diligence or accuracy. As a consequence, I am of the view that the merits of the case is effectively of neutral impact on these proceedings. Equally so, nothing was put to me in relation to the fairness between this person and any other person in a like position in the circumstances of this case.
 Generally, therefore, in my view, having particular regard to the reasons for the delay in lodging his application, I conclude that there are exceptional circumstances appending themselves to the circumstances of this late application. Consequently, I will allow the application even though it is not within the prescribed time period for the purposes of s.366(1)(a) of the FW Act.
SENIOR DEPUTY PRESIDENT
Mr Gough for himself
Ms Corbisiero of Counsel for the Respondent
1 The Applicant sent a Form 8 and Form 9 to Fair Work Australia. The Registry erroneously accepted the Applicant’s Form 9 for filing as such, the Applicant’s original application was made pursuant to s.773 of the FW Act. At the hearing on 16 March 2010 the application was taken to be an application pursuant to s.365 of the FW Act in accordance with s.723 of the FW Act. See Transcript of Proceedings dated 16 March 2010 at PN 20.
2 The Applicant gave evidence that he posted his complaint to the Office of the Fair Work Ombudsman, GPO Box 2567, Adelaide 5001. See Transcript of Proceedings dated 16 March 2010 at PN 105. I note this is the postal address specified on page 9 of the Fair Work Ombudsman’s complaint form.
3 Transcript of Proceedings dated 16 March 2010 at PN 120 – 122
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