FWA 5983
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Damien Stein
Bucyrus (Australia) Pty Ltd
BRISBANE, 1 SEPTEMBER 2010
Alleged termination due to workplace complaint - Jurisdiction - Extension of time.
 The Applicant, Mr Damien Stein, made an application to Fair Work Australia (FWA) pursuant to s.365 of the Fair Work Act 2009 (the Act) claiming a contravention of the general protections provisions of the Act, involving the termination of his employment by Bucyrus (Australia) Pty Ltd (the Respondent).
 The Applicant indicated in his application that the date of the dismissal was 3 February 2010. The Application was lodged on 20 April 2010, 76 days after the dismissal. At the time of the dismissal, the Applicant was working at the Peakdowns Mine site, ‘DRE42’. The Applicant had been employed by the Respondent since August 2009 as a ‘Quality Controller’.
 The application for relief must be made within 60 days after the dismissal took effect (s.366(1)(a) of the Act). In accordance with section 366(1)(b), FWA may allow, under section 366(2), an application within a further period that is determined by FWA. FWA may extend the time for making the application, if it is satisfied that there are exceptional circumstances taking into account certain specified matters.
 Directions were set by FWA for the determination of the jurisdictional issue, and the parties were requested whether they required a hearing. The parties indicated a preference for written submissions only. The parties filed their material, and whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.
 The relevant section of the Act is as follows:
365 Application for FWA to deal with a dispute
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.
366 Time for application
(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.
Submissions of the Applicant
 The Applicant submitted that his employment was terminated ‘at around midday on the 3rd of February 2010’. No details around the reason for the dismissal itself were provided, however, the Applicant submitted that he was ordered, by Mr Andrew Snow (Project Manager and Senior Site Executive), to leave the workplace immediately and was then driven to the Rockhampton airport, via the camp, by a colleague.
 The Applicant’s submissions were such that on the day of his dismissal, he lodged a complaint through the Respondent’s online complaint channel. The nature of his complaint was that he suffered ‘Victimisation, discrimination and verbal abuse etc’ by his Supervisor, Mr Anthony Love, and another Bucyrus employee, Scott Bishton. In his complaint, he specified that the problem had been ongoing for at least three months, and up to a year. He also confirmed, when making the complaint of 3 February 2010 that he had made a prior complaint in November 2009.
 As a result of the 3 February 2010 complaint, the Applicant submitted that the Respondent investigated the complaint, which involved a series of meetings with Mr Colin Cowell, (National HR Manager) and Mr Patrick Hayburn, (Regional Counsel), who advised the Applicant that a report was due back to the United States by 10 March 2010.
 The Applicant submitted that he emailed and called Mr Hayburn on 12 and 15 of April 2010, about the progress of the investigation. The Applicant submitted that Mr Hayburn advised that the Applicant should check the complaint website for an update of the status of his claim. Upon doing so, the website informed him that an investigation had taken place and that appropriate action had occurred. The Applicant called Mr Hayburn, who, according to the Applicant, advised that the results were confidential and the only information available to Mr Stein was that which was on the website. The Applicant, in his submissions, did not specify the date on which this occurred, however, he submitted he spoke to a representative at FWA who advised he could make a general protections claim against the Respondent, which he then did on 20 April 2010.
 It is also relevant that the Applicant undertook work, away from his place of residence for a period from 21 February 2010 until 25 March 2010; and then again from 7 April 2010 until an unspecified time.
Submissions of the Respondent
 The Respondent submitted simply that there was non-compliance with s.365 of the Act, and that the Respondent was unaware of any exceptional circumstances for the delay in lodging an application.
 In relation to the investigation, the Respondent submitted:
“Other than this Application, the Respondent is unaware of any action taken by the Applicant to dispute his dismissal.
However, on 3 February 2010, the Applicant lodged a compliant [sic] with Bucyrus in respect of his treatment during his period of employment. This compliant [sic] led Bucyrus to investigate and consider the Respondent’s treatment of the Applicant.
In the course of Bucyrus’ investigations, Mr Patrick Hayburn (Regional Counsel for Bucyrus) met with the Applicant on 18 February 2010 and amongst other things discussed with the Applicant the possible outcomes of the investigation during which it was clearly stated to the Applicant that:
a. re-employment and further compensation were not remedies that Bucyrus would consider.
b. Bucyrus considered the Applicant’s termination appropriate in the circumstances, however, it was concerned about the perception the Applicant had in respect of his treatment during his employment and that Bucyrus wished to investigate this and ensure that its own behaviour including that of its personnel were lawful, fair and in accordance with Bucyrus requirements.
At the meeting, the Applicant acknowledged such and when questioned as to the outcome he was sought [sic] from the investigation, the Applicant responded that he felt he was discriminated against and victimised so he wanted to ensure that this was properly addressed by Bucyrus. In particular, the Applicant stated that he wanted to see his former supervisor ‘dealt with’ in relation to his behaviour.”
 Section 366(2), sets out the matters to be taken into account to ascertain whether exceptional circumstances exist in order to extend the period of time for making the s.365 application.
The reason for the delay
 The Applicant did not put forward any distinct reason associated with the investigation process for the delay in making the general protections application. He had been given a “log on key” (to check on the complaint report on the website) that he stated he lost for a period. It is not clear when he was able to access this report or why he delayed in his application for the outcome of the investigation. It could be inferred that the Applicant was labouring under a misapprehension that the outcome of the investigation, if not satisfactory, could allow him to make a claim to FWA, or another public body. If this is the case, it could reasonably be inferred that upon checking the website for an update of his complaint that the s.365 application, if promptly attended to, could have been reason for the delay.
 However, there are three circumstances which render this inference untenable. Firstly, the Respondent claims that on 18 February 2010, a meeting took place in which it was emphasised that remedies such as re-employment and compensation were not available. It was certainly available to the Applicant to make an application at that time. Secondly, the Applicant knew that the report was due back to the Respondent’s United States arm of the company on 10 March 2010. He could have made further inquiries closer to this time, however he delayed until 12 April 2010 to inquire as to the status of his complaint. Thirdly, there is insufficient evidence to suggest that the Applicant took prompt action to lodge his application, in that, it is unspecified as to what date he sought advice from FWA.
 The time away from his place of residence (between 21 February 2010 and 25 March 2010) is not considered to be sufficient reason for the delay. The Applicant is adept at using email and internet (as demonstrated by his ability to use the Bucyrus online complaint form), and could have lodged an application electronically. It was also available to the Applicant to phone FWA; as he was able to telephone Mr Hayburn during his subsequent employment away from his residence.
Any action taken by the person to dispute the dismissal
 The Applicant on the day of his dismissal, on 3 February 2010 made a complaint to the Respondent. The complaint alleged discrimination and victimisation and also detailed an incident from December 2009 whereby the Applicant wrote ‘... giving all staff gifts and publically excluding myself. And many other occasions’. The complaint set in motion an investigation by the Respondent.
 The final complaint followed the dismissal and was made on the same day. It is unclear why the Applicant only complained of an incident some five, possibly six weeks after it occurred.
Prejudice to the employer (including prejudice caused by the delay)
 In relation to this particular consideration, the Applicant submitted ‘There should be no prejudice to the employer. Business is still functioning. The Actions taken were contrary to the employer’s policies and unlawful’. The Respondent identified prejudice in relation to the time and resources spent on the investigation, and specified that the Applicant sought the claim without specifying the remedy sought, which caused the Respondent prejudice.
 The Respondent stated that time and resources were expended in investigating the complaint, and that should render it not liable for further time and resources to be spent. However, as mentioned above, the complaint was in relation to discrimination and victimisation, not in relation to the Applicant’s dismissal. The Respondent did not provide any further specific detail regarding prejudice related to the application, for example there was no information that a further employee had been employed in the Applicant’s position.
The merits of the application
 The Respondent submitted that the Applicant is not entitled to make an application under s.382 as he does not satisfy the minimum period of employment. Whilst that test may be applicable for an unfair dismissal claim pursuant to s.394 of the Act, it is not a relevant jurisdictional test when the claim made is a general protections dispute under the Act.
 The Applicant did not sufficiently address this point in his submissions, however, referring to the original Application, the Applicant alleged that the reason for his dismissal was that he made a complaint about his supervisor in November 2009. It is possible, if it were made out, that this constitutes a workplace right pursuant to Part 3-1 of the Act, which is protected from adverse action.
Fairness as between the person and other persons in a like position
 On the material presented, this consideration is not relevant to this matter.
 The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend a period of time for a person to make a general protections application. This ‘exceptional circumstances’ test is similar to that in unfair dismissal applications. The test of ‘exceptional circumstances’ has been considered in relation to both extensions of time for applications under s.365 of the Act and s.394 of the Act. In addressing the issue of ‘exceptional circumstances, I adopt the approach taken by Whelan C in Parker v Department of Human Services 1 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery2) as set out below:
“ Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd  FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
 Dealing with the expression 'exceptional circumstances' as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward)  1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
[Mann v Minister for Immigration and Citizenship  FACFC 150]
 Although the above reference is taken from an extension of time decision in relation to an unfair dismissal application, the test of whether there exists exceptional circumstances is similar to that for extending the time for making general protections applications.
 There were various points between the time of the Applicant’s dismissal and the making of the Application that could have compelled the Applicant to make an application. Instead of making a complaint to the Respondent, he could have made an application; or after the 18 February 2010 meeting with Mr Hayburn, he could have made an application. The confirmation of the report on the company website on the outcome of the investigation and the further advice from FWA also both provided earlier times at which an application could have been made. In addition, there is no reasonable explanation for the delay in lodging the application made out in his submissions.
 Given the insufficient reasons for the delay, it cannot be said that exceptional circumstances exist such that the period of lodging this s.365 application should be extended by 16 days. Jurisdiction is not established and therefore the Application is refused. I Order accordingly.
1  FWA 1638.
2  FWA 1394.
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