FWA 7836
Fair Work Act 2009
Form 2000 Sheetmetal Pty Ltd
MELBOURNE, 8 OCTOBER 2010
General protections application - extension of time.
 An Application under S.365 of the Act for FWA to deal with a General Protections Dispute involving a Dismissal was filed by the Applicant in this matter on 5 October 2010. The date of dismissal was 23 June 2010.
 Section 366 provides that an application under s.365 must be made within 60 days after the dismissal took effect or within such further period as FWA allows under s.365(2).
 The application was made 105 days after the date of dismissal.
 The application in this matter contained the following in support of the application for an extension of time.
“This application is made after the time period allowed for filing under section 366(1) of the Fair Work Act 2009. The Applicant seeks that Fair Work Australia allow a further period for filing of this application as allowed under section 366(2), pursuant to the following exceptional circumstances:
(a) The delay was caused by an unrepresented worker making an unfair dismissal claim erroneously;
(b) The Applicant sought to dispute his dismissal, and have the matter addressed by Fair Work Australia, within the time periods allowed for under the Unfair Dismissal provisions of the Act;
(c) The Employer has not suffered any prejudice through the delay of filing this application, as the argument to be relied upon in this Application was communicated to the employer since dismissal and through the conciliation of the Unfair Dismissal application.
(d) The Application has merit, particularly the circumstances of the dismissal, in that the dismissal was contemporaneous with the work of the Applicant in placing infringement notices on non-compliant and dangerous forklifts.”
 The Applicant had filed an application under s.365 on 24 September 2010 which was within the time set by s.366(1)(a). That application was matter C2010/5026.
 That matter was listed for conference under s.368 of the Act on 5 October 2010.
 The Respondent’s legal representative wrote to Fair Work Australia on 29 September 2010 in the following terms:
“We understand the application was also filed with Fair Work Australia on 24 September 2010.
On 8 August 2010 the Applicant lodged an application under section 394(2) of the Fair Work Act for a remedy for unfair dismissal. This application has not been withdrawn by the Applicant, not did it fail for want of jurisdiction.
We draw Fair Wok Australia’s attention to the operation of section 725 of the Act and respectfully request that Fair Work Australia declines to deal with the General Protections Application.”
 The Respondent’s legal representative wrote to Fair Work Australia again on the 30 September in the following terms:
"We refer to our letter dated 29 September 2010 regarding the above matter.
We confirm receipt of the Notice of Listing advising that this matter is listed for Conference on 5 October 2010 at 9.00am.
Section 725 of the Fair Work Act (“Act”) precludes the making of multiple applications in respect of the termination of employment. In our opinion, the wording of section 725 of the Act is clear. It provides that:
“A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other one of those sections applies.”
The Applicant lodged an Unfair Dismissal application with Fair Work Australia on 8 August 2010. This application was not withdrawn and did not fail for want of jurisdiction prior to the Applicant lodging his General Protections Application on 24 September 2010. As such, it is our view that the application is incompetent.
We were served with a Notice of Discontinuance in respect of the Unfair Dismissal application today. It is our view that the Applicant cannot remedy the invalidity of his General Protections Application simply by discontinuing his unfair dismissal application and that he is required to re-lodge his General Protections Application.
In light of the above, we respectfully request that you cancel the Conference scheduled on 5 October 2010 on the basis that Fair Work Australia is precluded from dealing with the Application pursuant to section 725 of the Act.
Otherwise, if you are minded to list the application for a Jurisdictional hearing, the person who has conduct of this matter is unavailable until 7 October 2010 and then from 15 to 27 October inclusive.
Should you wish to discuss this matter, please do not hesitate to contact me on the number below.”
 At the conference conducted by Fair Work Australia on 5 October the Respondent pressed its objection to the application being properly before Fair Work Australia.
 The Applicant’s legal representative advised that he had not acted for the Applicant in relation to the Unfair Dismissal application and had only commenced to act for the Applicant in relation to the General Protections application. The Applicant’s legal representative advised that he only became aware of the failure by the Applicant to formally withdraw his Unfair Dismissal application when he received the letter from the Respondent’s legal representative on 29 September and on receipt of that letter he immediately obtained instructions from the Applicant to file the Notice of Discontinuance in the Unfair Dismissal matter.
 At the conference on 5 October the Applicant’s legal representative advised that the Applicant would discontinue the application in C2010/5026 and make a new application under s.365. The Notice of Discontinuance and new application was emailed to my chambers and copied to the Respondent during the conference.
 The new application (the application in this matter) was clearly out of time and the Respondent advised that it would object to an extension of time being granted. The Applicant advised that they would rely upon paragraph 6 of the application in support of the application for an extension of time.
 The Respondent was directed to, and did, file and serve by close of business on 7 October its submissions in relation to the application for an extension of time.
Extension of Time
 Section 366(2) provides as follows:
(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.
 As the Explanatory Memorandum to the Fair Work Act makes clear, the terms of s.366(2) provide “an exhaustive list of the factors FWA must take into account when determining if there are exceptional circumstances.”
 I have taken into account each of those factors.
Reason for Delay
 The reason for the delay in the making of the current application was that this application was made in consequence of the challenge by the Respondent to the Applicant’s first s.365 application on the basis that the Applicant had started the first s.365 application without formally withdrawing his earlier s.394 application. The relevant chronology of events was set out in the Respondent’s submission as follows:
“28.07.10 Mr Hartig’s employment with Form 200 is terminated for unsatisfactory performance and conduct;
09.08.10 Mr Hartig lodges an Application for Unfair Dismissal remedy (U2010/11368)
31.08.10 Conciliation conducted by Conciliator Bourke is unsuccessful.
06.09.10 Conciliator Bourke informs the Respondent and their representative via email time stamped 10.13am that the Applicant plans to discontinue his claim, and will lodge the F50 in due course.
24.09.10 Application for FWA to deal with General Protections Dispute (C2010/5026) lodged for the Applicant by Prior & Prior
30.09.10 Notice of Discontinuance of Unfair Dismissal (U20140/11368) (sic) lodged
04.10.10 Conference conducted by Fair Work Australia
04.10.10 Notice of Discontinuance (C2010/5026) and fresh Application for FWA to deal with a General Protections Dispute tendered to Commissioner Ryan.”
 I note that the Respondent incorrectly identifies the 4th October, rather than the 5th October as the date for the last 2 actions.
 The reason for the Applicant not complying with s.588 in discontinuing his unfair dismissal application was that he was unrepresented in relation to that matter.
 The Respondent contends that the Applicant’s representative should have been aware that the Applicant’s Unfair Dismissal application had not been discontinued. I am not prepared to make the assumption or draw the inference that the Applicant’s representative should have been aware of the Applicant’s failure to file a Notice of Discontinuance. The Applicant’s representative lodged the Notice of Discontinuance in relation to the s.394 matter on 30 September the day immediately after having received a copy of the Respondent’s letter to the Tribunal dated 29 September 2010. The Notice of Discontinuance was filed before the Respondents second letter was sent to the Tribunal on 30 September 2010. The conduct of the Applicant’s representative suggests that the Applicant’s representative has acted as soon as he became aware of the fact that the Applicant had not filed a Notice of Discontinuance in relation to the s.394 matter.
Any Action taken by the Applicant to Dispute the Dismissal
 As the chronology of events makes clear the Applicant took action within 12 days of his dismissal to challenge that dismissal. The Applicant has continued to take action to dispute his dismissal with the second application made under s.365 of the Act on 24 September and the current application being made on 4 October 2010.
Prejudice to the Employer including Prejudice caused by the delay
 The Respondent’s contention that it will be prejudiced by the grant of an extension of time relies solely on the assertion that “the Applicant raises fresh issues in his Application for FWA to deal with a General Protections Dispute which was not earlier relied on by the Applicant. The Applicant previously alleged that the termination of his employment was harsh, unjust and unreasonable, but now seeks to allege that it was for other reasons.” The Respondent also relied upon the principle enunciated in the Explanatory Memorandum to the Fair Work Act that the purpose of the provisions of Subdivision B of Division 2 of Part 6-1 of the Act was “to prevent a person double dipping when they have multiple potential remedies relating to a dismissal from employment”.
 Whilst the s.365 Application in this matter does raise issues which were not relied on in the earlier s.394 application it is clear that the current s.365 application raises the very same issue and raises it using the very same language as was raised in the first s.365 application.
 For the purpose of s.366(2)(c) prejudice cannot be considered to flow against the employer merely because the grounds of an application under s.365 are different from the grounds relied upon in an application under s.394. Something more is required.
 In this matter the first s.365 application was filed within the time limits set by s.366(1) and had the Applicant filed the Notice of Discontinuance in the s.394 matter prior to lodging that application the Respondent would have no complaint as to prejudice merely because the s.365 application was different from the earlier s.394 application.
 In this matter I cannot discern any prejudice that may flow against the Respondent as a result of the late filing of the second s.365 application when it is in the same terms as the first s.365 application.
Merits of the Application
 The Respondent in opposing the extension of time application in relation to this matter relies upon the material put to Fair Work Australia in its Employer’s Response to Application for Unfair Dismissal Remedy as supporting its contention that the Applicant’s employment was terminated for unsatisfactory performance.
 The only material before me from the Applicant is that contained in the s.365 application identifying that “The employee was dismissed after disputes arising out of the employee “tagging” unsafe forklift machines in his role as Occupational Health and Safety Officer.”
 Given the operation of s.361 of the Act I must start from the presumption that the dismissal was for the reason alleged by the Applicant unless the Respondent proves otherwise. Fair Work Australia is not the place for the Respondent to ‘prove otherwise’.
 On the face of the material before me the Applicant’s case has merit just as the Respondent’s case has merit. Fair Work Australia cannot test the merits of either the Applicant’s or the Respondent’s case. Therefore I consider that the merits of the case favour the Applicant at this point of time given the operation of s.361 of the Act.
Fairness as between the Applicant and other persons in a like position.
 The Respondent relied upon the decision of Commissioner Cambridge in Helen Wemyss v Mission Australia Employment Services  FWA 1798 to support its contention that:
“It is submitted that the Respondent employer would have terminated the employment of any other employee in similar circumstances, where the employee had failed to improve their performance and conduct subsequent to meetings and the implementation of a performance improvement plan. Importantly, it is submitted that this would have occurred whether or not the other employee was the Company’s Occupational Health and Safety Officer.”
 It is necessary in my view to have regard to the genesis of s.366(2)(e). This phrase was used by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 to describe one of the principles he had discerned from earlier judgements in relation to extension of time applications. Marshall J referred to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984)3 FCR 344 at 349, which, in relation to the phrase in question, referred to the decision of Shephard J in Wedesweiller and others v Cole and others  FCA 94.
 Shephard J was dealing with an application by 153 public servants where the application before him was filed in November 1982, some 11 months out of time. However other matters involving a further 190 public servants and the same issue had been filed in early 1982 and although some of the earlier applications were filed out of time orders by consent had been made for an extension of time.
 In granting the extension of time for the later applications, Shephard J said:
“Ordinarily one might regard an application for extension of time made almost twelve months after the expiry of the prescribed time as being too late, particularly where the prescribed period is as short as 28 days. That is the view I think I would have had in relation to these applications were it not for the fact that there are pending for hearing in the Court's list approximately 190 similar applications all arising out of similar incidents to those complained of by these applicants. It is that circumstance which, according to the submission of senior counsel, makes this case different from others. Furthermore, as a matter of fairness amongst employees in similar situations it is only right, in his submission, that these applicants be allowed to proceed. He further submitted that no real prejudice was shown by the respondents, not forgetting the difficulties they may have in obtaining evidence as mentioned by Mr. Cassin. Certainly there was not here any administrative reason or reason not associated with the direct interests of the parties which ought to dissuade me from granting the extension which is sought. (emphasis added)”
 To properly take into account the criteria set out in s.366(2)(e) in the context of the present matter it is necessary to consider persons in a like position to the Applicant. The Respondent’s written submission does not do that. The Respondent’s focus on performance issues ignores the issue that this application alleges that “The employee was dismissed after disputes arising out of the employee “tagging” unsafe forklift machines in his role as Occupational Health and Safety Officer.” There is nothing before me which identifies any other employee or employees of the Respondent who are in a like position to the Applicant.
 In the circumstances of this matter this criterion provides little assistance to the resolution of the issue before the Tribunal. In the absence of any evidence about the treatment of other employees of the employer who are in a like position to the Applicant I have decided to treat this factor as being neutral.
 Having taken into account all of the circumstances surrounding the chronology of events since the termination of the employment of the Applicant was effected by the Respondent and having taken into account each of the criteria set out in s.366(2) I am satisfied that there are exceptional circumstances which allow me to extend the time in which the application in this matter can be made and I determine that the time for making the Application in this matter is extended until and including the 5th October 2010.
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