Note: An appeal pursuant to s.604 (C2011/3780) was lodged against this decision - refer to Full Bench decision dated 8 December 2011 [ FWAFB 8480] for result of appeal.
 FWA 1386
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Dominic Burke
Department of Agriculture, Fisheries and Forestry - Australian Quarantine and Inspection Service
BRISBANE, 4 MARCH 2011
Alleged contravention of general protections provisions - whether to grant extension of time for application - application refused.
 On 1 November 2010 Mr Dominic Burke (the “applicant”) made an application pursuant to section 365 of the Fair Work Act 2009 (the “Act”). A conference was conducted on 1 December 2010 between the parties in accordance with section 368. The conference was unsuccessful in resolving the matter and the Australian Quarantine and Inspection Service (AQIS) a division of the Department of Agriculture, Fisheries and Forestry (the ‘respondent”) sought that Fair Work Australia (FWA) deal with the jurisdictional issue of the application being filed out of time.
 I issued directions on 1 December 2010 that the applicant file submissions and witness statements by 20 December 2010, and the respondent by 14 January 2011. At the conference I proposed that the matter be dealt with on the papers. Counsel for the respondent requested a hearing on the basis that it could cross examine any witnesses called. The directions order listed a hearing to be conducted on 19 January 2011.
 The applicant filed submissions but did not file any witness statements in relation to the application. I received correspondence on 13 January 2011 from Blake Dawson Solicitors for the respondent advising that on the basis that the applicant was not calling any witness evidence it was content for the matter to be dealt with on the papers. This correspondence was also sent to the applicant.
 The offices of FWA were affected between 11 January 2011 and 21 January 2011 by flooding in the Brisbane central business district and the parties were advised that the hearing date of 19 January 2011 was cancelled.
 The applicant provided email correspondence to FWA on 1 February 2011 advising that he would agree to the matter being dealt with on the papers if he could file further material. Correspondence was sent to both parties on 9 February 2011 advising that I did not intend to allow for the filing of any further material and would determine the application on the material as filed in accordance with the directions. The parties were advised that section 593 of the Act provides that FWA is not required to hold a hearing in determining applications made.
 The applicant was dismissed by the respondent on 21 August 2009. The applicant had initially filed an application for an unfair dismissal remedy in FWA pursuant to section 394 on 3 September 2009. The matter was listed for hearing before Deputy President Swan on 28 to 30 March 2011. The applicant withdrew the application on 29 November 2010.
 On 1 November 2010 the applicant made an application pursuant to section 365 of the Act contesting the dismissal that was previously to be contested under the withdrawn section 394 application.
 The section 365 application is 437 days after the dismissal of the applicant and 377 days out of time.
 The section 365 application filed by the applicant on 1 November 2010 acknowledges that the application is late and makes reference to a medical condition and an inability to access legal representation through a lack of funds as reasons for filing out of time. The application includes the following;
“As I had no legal advice I was unsure of what to do but the obvious and I lodged an unfair dismissal claim with FWA. I did this after I spoke with FWA staff shortly after my dismissal last year. I was told in my situation I could apply for unfair dismissal but nothing about general protections.”
 Further the applicant states;
“I also feel the way in which my situation has unfolded and AQIS not allowing me access to certain documents has prejudiced this toward them as the maximum they have to pay me is 26 weeks pay and my LSL would nearly equal this amount alone. After 8 years of service this has enabled AQIS to purchase my career from under me without having to answer to anything other than 26 weeks pay and, in doing this, I feel they have abused this process. I do not feel I would be provided effective relief from the unfair dismissal process and they have said that they will go to all ends to not have me back as they state I do not suit their organisation should I win my unfair dismissal case.”
 The applicant filed a 10 page written submission in accordance with the directions order. For the most part the submission did not squarely address the matters I am required to consider for the purposes of section 366(2). The applicant’s submission did however revisit the matters he raised in his application filed on 1 November, which were his health affecting his ability to properly prepare, an inability to access legal advice and a realisation on his part that a hearing through a general protections application was preferable to an unfair dismissal application.
 Blake Dawson Solicitors for the respondent filed a nine page submission. The submission highlighted that the applicant had filed no evidence to support the claim of a medical condition that inhibited his ability to make a general protections application.
 Further the respondent argued that the alleged medical condition did not appear to inhibit the applicant from filing the unfair dismissal application within the shorter period permissible under the Act.
 The respondent argued that the failure to obtain legal advice is not an acceptable reason for the delay. The respondent referred to the decision of Deputy President Leary in Smith v Crook 1 where it was held that being unaware of relevant legislation and possible action to challenge a termination is not an exceptional circumstance.
 The respondent stated that FWA has consistently held that a failure to obtain prompt legal advice does not constitute an exceptional circumstance.
 The respondent argued that it is apparent that the principle reason for the delay in making the general protections application in relation to the dismissal is that the applicant first sought to prosecute an unfair dismissal application, and that this does not constitute an acceptable reason for the delay.
 The respondent referred to the case of Mrs Sima Rezaee v Felav Pty Ltd t/a M & P&M Nanovich 2 where an applicant brought a general protections application within time, withdrew that application and sought to make an unfair dismissal application 20 days out of time. In that matter Commissioner Williams refused to exercise discretion to extend time and was upheld on an appeal. The respondent also referred to a similar outcome in Mr Roy Chacko v Compass Group (Australia) Pty Ltd.3
 The respondent raised the issue of the prejudice the respondent will suffer in defending a claim where such a significant period of time has passed since the applicant’s dismissal.
 In regard to the merits of the case the respondent stated that the applicant had failed to identify a workplace right under section 341(1) of the Act that the respondent was seeking to prevent him from exercising. The only reference to section 341(1) in the applicant’s submission is in relation to section 341(1)(b) and the reference is not in relation to a “process or proceeding under a workplace law or workplace instrument”.
 The respondent emphasised the length of the delay, being 377 days or approximately 6.25 times the prescribed limit under the Act. The respondent referred to the decision of Commissioner Cambridge in Ms Helen Wemyss v Mission Australia Employment Services 4 where 2.5 times the prescribed limit was found to represent a significant but not insurmountable onus to establish the existence of exceptional circumstances.
 The respondent said that FWA has allowed extensions in cases of exceptional circumstances in the nature of incorrect advice from a representative or from FWA. However the real reason for the delay in this case is that the applicant first sought to prosecute an unfair dismissal application before he determined that a general protections application was more likely to provide the remedy sought. The respondent submits this does not amount to an exceptional circumstance.
 The relevant provision in the Act for the purposes of determining this application is 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.
 I have had regard to the submissions of both parties. The reasons for the delay as put by the applicant can be categorised as follows;
(a) a medical condition,
(b) difficulties in accessing legal representation,
(c) not being advised about general protections applications by FWA staff, and
(d) a view he formed over time that an unfair dismissal claim would not provide him with effective relief as compared to a general protections claim.
 The submissions filed by the applicant were not supported by an argument or evidentiary material which could justify all or any of the first three grounds for seeking an extension of time. No specific material was provided regarding the medical condition or difficulties in accessing legal advice.
 In regard to the claim that the applicant had not been advised by FWA staff about general protections applications I have had regard to the majority decision in Patrick Morgan McConnell v A & PM Fornataro t/a Tony’s Plumbing Service 5 and paragraph 32 of that decision when it states:
“Consequently, we consider that the Senior Deputy President was entitled to conclude that the Fair Work Ombudsman had not directed Mr McConnell to lodge an unfair dismissal application and that Mr McConnell's tardiness in seeking advice was a significant factor explaining the delay.”
 The circumstances in that case were very similar to those here in that the applicant complained that the Fair Work Ombudsman (FWO) advised him he could make an unfair dismissal claim but did not mention that he could make a general protections claim.
 For similar reasons in this matter as were determined in McConnell the applicant cannot rely on what he alleges was said by FWA staff (who were never identified by the applicant) to justify an extension on the basis that he was advised he could make an unfair dismissal application but that he was not advised that he could make a general protections claim. The applicant does not claim that anyone at FWA directed him to file an unfair dismissal claim.
 The applicant has failed to discharge the onus on him to satisfy me that there are exceptional circumstances that exist for any of these three reasons.
 In regard to the fourth ground, I agree with the respondent’s submission that an applicant coming to the view that a particular application may not provide him with the remedy he hopes for, and subsequently deciding to withdraw that application and file another, does not fall within the meaning of an exceptional circumstance.
 This is even more so when the decision to change the nature of the challenge to the dismissal is acted upon over a year after the initial unfair dismissal application was filed.
 I accept the submissions of the respondent that the employer will suffer prejudice in defending a claim due to the delay. In this case the dismissal occurred in August 2009 and the general protections application to contest the dismissal was filed over a year later on 1 November 2010.
 I also accept the submission of the respondent that neither the general protections application itself filed on 1 November 2010, or the submissions of the applicant in this matter have properly particularised the workplace right under section 341(1) of the Act that it will be alleged the respondent was seeking to prevent from being exercised. On that basis at a preliminary stage the merits of the claim appear weak because of that failure on the part of the applicant.
 On the question of fairness as between the applicant and other persons in a like position, in similar cases to this matter where one application has been filed within the timeframe and subsequently withdrawn, and an alternative application filed outside the timeframe FWA has denied much shorter extensions sought. It would not be appropriate to grant a 377 day extension in this case when considered in the light of previous similar cases.
 For all of the reasons above I do not intend to exercise my discretion to extend time in this case. On that basis the application must be dismissed as it is outside jurisdiction.
 On a separate issue which was not raised in submissions Mr Burke filed the general protections application on 1 November 2010 but did not withdraw the unfair dismissal application until 29 November 2010.
 Section 725 of the Act states 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 of these section applies.
 As section 729 continued to apply until 29 November 2010 and the general protections application was of a kind referred to in section 727 it seems clear the applicant was not entitled to make the application when he did.
1  FWA 9835
2  FWA 5178
3  FWA 7418
4  FWA 1798
5  FWAFB 466
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