[2011] FWAFB 975
[Note: a correction has been issued to this document - see 2011FWAFB975_PR506884 signed 17 February 2011]

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Fair Work Act 2009
s.604—Appeal of decision

Cheyne Leanne Nulty
Blue Star Group Pty Ltd



Appeal against decision [2010] FWA 6989 of Commissioner Cambridge at Sydney on 9 September 2010 in matter number C2010/3932.

[1] This is an application for permission to appeal and, if permission is granted, an appeal against a decision of Commission Cambridge 1 on 9 September 2010 declining to extend time for, and as a consequence dismissing, the appellant’s originating application for Fair Work Australia (FWA) to deal with a general protections dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) - an application of a type described in the FW Act as a “general protections FWA application”.

[2] Pursuant to s.366(1) of the FW Act, an application under s.365 must be made within 60 days “or within such further period as FWA allows under s.366(2)”.

[3] The Commissioner’s decision to refuse an extension of time was a discretionary decision and, as such, an appeal against that decision is governed by the principles in House v The King: 2


[4] The appellant was dismissed from her employment with the respondent on 24 February 2010 and filed her general protections FWA application on 3 June 2010, 99 days after her dismissal (that is, 39 days out of time).

[5] The Commissioner set out a chronology that does not appear to be contentious:

[6] It may be noted that HREOC was renamed as the Australian Human Rights Commission (AHRC) with effect from 1 January 2010.

[7] It is desirable to note two further events. On 18 June 2010 a conciliation conference was conducted by the Commissioner (we infer that the respondent consented to a conciliation occurring before the hearing of its jurisdictional objection based on the application being filed out of time). On 20 July 2010 the appellant orally withdrew her complaint to HREOC (AHRC). The appeal book contains an email from an officer of the AHRC noting:

[8] It is unclear whether that email was in evidence before the Commissioner although it is clear that the Commissioner was aware that the complaint had been withdrawn.

Section 366 and “exceptional circumstances”

[9] Section 366 provides:

[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers 3 a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 4, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:5

[13] 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

The decision below

[16] The Commissioner stated the following in relation to the criterion in s.366(2)(a):

[17] After considering the other matters specified in s.366(2), the Commissioner held:

Grounds of Appeal

[18] We turn to consider the appellant’s grounds of appeal.

[19] Grounds 1, 2, 6 and 8 of the notice of appeal are contentions that the Commissioner failed to give sufficient or adequate weight to various matters. The principles governing when a failure to give sufficient weight to a relevant consideration will constitute an error correctable on appeal were set out by the Full Bench of the Australian Industrial Relations Commission (AIRC) in Farquharson v Qantas Airways Ltd 6 and come down to the following proposition:

[20] The Commissioner referred to the matters in question and clearly took them into account. We can discern nothing in the Commissioner’s decision that, consistent with the relevant principles, would justify interfering in his decision on the basis advanced by the appellant. We are not persuaded that the Commissioner’s treatment of the matters in question “really amounts to a failure to exercise the discretion actually entrusted to [the Commissioner]”.

[21] Ground 3, 4 and 5 are related and are as follows:

[22] To the extent that ground 3 relates to a failure to give sufficient weight to the matter specified, it is covered by our conclusion in paragraph [20] above. To the extent that ground 3 is a complaint that being misled by a public body constitutes an exceptional circumstance, we agree that this is so.

[23] In relation to ground 4, we note that the Applicant had the benefit of legal advice from her father who was a senior solicitor with a not insignificant firm of solicitors. We are not persuaded that the Commissioner failed to take account of the fact that, formally, the appellant was self-represented and not legally skilled, a common occurrence in the Tribunal. A consideration of that factor is implicit in the Commissioner’s reasons.

[24] More generally in relation to grounds 3 to 5, we note that there was no copy of the complaint made to the FWO on 19 April 2010 in the evidence before the Commissioner. Only the front page of the complaint appeared in the appeal book, apparently as ‘new evidence’ upon which the appellant wished to rely. However, it may be inferred that the complaint had a number of aspects including an allegation of unfair dismissal and an allegation of non-payment of entitlements. Apparently, that latter aspect of the complaint was investigated by the FWO and led to a further payment by the respondent.

[25] The FWO certainly interpreted the form as containing a complaint of unfair dismissal and on 21 April 2010 a standard letter was issued advising that “Complaints for Unfair Dismissal are required to be lodged with Fair Work Australia within 14 days”. Further, on 13 May 2010 the FWO officer with the carriage of the complaint advised the appellant that “as the complaint related to Unfair Dismissal a Complaint would need to lodged with Fair Work Australia.” Because the full complaint was not in evidence before the Commissioner it is unclear whether it identified that the appellant had been employed for less than 6 months and was therefore not able to make an unfair dismissal application on account of not having completed the minimum period of employment as required by s.382(a) and s.383. In any event, the appellant subsequently became aware that she was unable to make an application for an unfair dismissal remedy because she had not completed the statutory qualifying period.

[26] We accept that, generally speaking, acting on incorrect advice from a relevant government agency will constitute an exceptional circumstance for the purposes of s.366(2).

[27] The appellant’s complaint about the FWO advice appears to be that FWO should have recognised that the appellant did not have a viable unfair dismissal claim (because she had not completed the qualifying period) but that she did have a potential claim under s.365 and advised her to consider commencing an application under s.365. It is not clear on the evidence before the Commissioner that the FWO was aware that the appellant had been dismissed after only five months let alone that the FWO was in a position recognise that the appellant had a potential claim under s.365. We are not persuaded that there is a sufficient evidentiary foundation for a finding that the FWO gave incorrect advice in relation to the facts as the appellant conveyed them to the FWO.

[28] It is tolerably clear that the appellant’s essential complaint at the time of her dismissal (and, inferentially, her essential complaint to the FWO) was that her dismissal was unfair because she had been bullied and harassed and that her performance was not in fact poor as alleged by the respondent. This would have suggested an unfair dismissal application as the appropriate remedy. The appellant’s reliance on a breach of the general protections provisions became a matter of focus only after she appreciated that she did not have a viable unfair dismissal claim. In other words, it is far from clear on the evidence before the Commissioner that the FWO gave incorrect advice or an incorrect suggestion in its letter of 21 April 2010 and in associated discussions between the appellant and an officer of the FWO.

[29] More importantly, the alleged incorrect advice from the FWO does not explain a significant portion of the appellant’s delay in filing her originating application. The appellant knew by shortly after 21 April 2010 that the FWO did not deal with unfair dismissal claims, that such claims should be directed to FWA and that there was a 14 day time limit for filing an unfair dismissal claim. In other words, by shortly after 21 April 2010 the appellant knew that she was well out of time for an unfair dismissal claim. If she was operating under a continuing belief that the FWO advice was correct and that an unfair dismissal claim was the correct remedy, notwithstanding it being out of time, she should have filed an unfair dismissal claim expeditiously after 21 April 2010. 7 That did not occur.

[30] On 25 April 2010 the 60 day period for the appellant to file a general protections FWA application expired. On 3 June 2010 the appellant filed her general protections FWA application. The advice of the FWO cannot afford a proper explanation for the period of delay commencing shortly after 21 April 2010. We can see no proper explanation for that period of delay of more than a month other than ignorance of the remedy and associated time limits. That is not an exceptional circumstance.

[31] Ground 7 is as follows:

[32] The Commissioner was correct in stating that the originating application did not specify the nature of the alleged general protections contravention. At the appeal hearing the appellant was invited to point to where in her application the nature of the general protections contraventions relied upon were specified and could not do so. That is because none are in fact specified in the application or the material that accompanied it, let alone with any particularity that would allow the respondent or the tribunal to understand with any precision the nature of the general protections contraventions alleged.

[33] Grounds 9 to 14 relate to the Commissioner’s consideration of the merits of the application, one of the matters specified in s.366(2), and are as follows:

[34] The Commissioner’s consideration of the merits of the application was as follows:

[35] None of grounds 9 to 14 are sustained by these reasons.

[36] It ought be regarded as well established that on an extension of time hearing it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d). The Commissioner summarised the contentions of the respondent, as was entirely proper. He neither accepted nor rejected the evidence of Mr Bates and made no findings in respect of the respondent’s contentions in relation to poor performance.

[37] Critical to a consideration of the merits in this case was the failure by the appellant to adequately particularise the general protections breaches that she alleged. The essential complaint emerging from the material attached to the originating application is one of bullying and harassment by a particular manager and unjust performance appraisals after the appellant complained to the general manager about that alleged bullying and harassment.

[38] Nowhere in the evidence or submissions before the Commissioner, including the oral submissions made during the hearing before the Commissioner, did the appellant identify how it was alleged that the respondent breached the general protections provisions of the FW Act.

[39] The Commissioner’s decision identifies the general protections breach relied upon by the appellant as discrimination on the grounds of the appellant’s sexual preference (a contravention of s.351). It seems that this was the basis advanced during the conciliation conference conducted by the Commissioner on 18 June 2010. 8 However, the appellant appears to have accepted that the relevant managers of the respondent did not know of her sexual preference and, ultimately, that claim was not pressed before the Commissioner and was not pressed at the hearing before us. A “letter of evidence” attached to an email of 29 July 2010 addressed to the Commissioner and the representative for the respondent (a document which is part chronology and part submission) states “I am will (sic) withdraw the personal discrimination claim after obtaining further legal advice regarding this issue.”

[40] That “letter of evidence”, which is about 11 single spaced pages in length, contains the following:

[41] This is the only reference in the document to General Protections. It does not particularise how the nominated sections are said to have been breached.

[42] Strictly speaking, the Commissioner erred in focussing only on the “the alleged contravention involving discrimination against the applicant because of her sexual preference”, a claim that had been withdrawn. However, given the way in which the case was conducted by the appellant, the Commissioner’s mistake in this regard is understandable. The withdrawal of the appellant’s claim of discrimination on the ground of her sexual preference is buried the “letter of evidence”. Given the terms and structure of that document it was easily overlooked. The appellant did not correct the Commissioner when he adverted to that alleged contravention during the hearing. Indeed, the transcript before the Commissioner reveals that no coherent case on how the General Protections were breached was advanced by the appellant. The same may be said in relation to the argument before us.

[43] Nevertheless, we have considered whether a consideration of the provisions identified by the appellant in her “letter of evidence” could have led to a different outcome.

[44] Sections 348 and 349 are as follows:

[45] The factual contentions in the appellant’s evidence and submissions before the Commissioner have nothing whatever to do with industrial activity or any misrepresentation in relation to an obligation to engage in industrial activity or to make a disclosure of the sort referred to in s.349(1)(b). In short, there was no material whatever before the Commissioner which, if accepted, was capable of making out a breach of s.348 or s.349.

[46] Section 340 provides:

[47] The meaning of “workplace right” is relevantly defined in s.341(1):

[48] As noted, it became apparent during the appeal hearing that the alleged breach of s.340 was based on the complaint of bullying and harassment against Mr Bates made by the appellant to the general manager. Section 340 would have been breached if the respondent took adverse action of a kind specified in item 1 in the table in s.342 (in this case, dismissal) because the complaint to the general manager amounted to the exercise of a “workplace right” within the meaning of s.341(1)(c)(ii).

[49] The issue is whether the criterion in s.341(1)(c)(ii) is met whenever an employee makes a complaint to a responsible senior manager as a mere incident of the employment relationship. We are inclined to think that is it not and that s.341(1)(c)(ii) contemplates that the employee is “able” to make the complaint by virtue of some provision in a statute or in an instrument such as a enterprise agreement or contract of employment. However, the appellant made no submissions on s.341(1)(c)(ii) and the respondent was not given an adequate opportunity to be heard in relation to this question. We do not think it appropriate to express a concluded view on that issue in the absence of argument.

[50] For present purposes it is sufficient to note that on the material before the Commissioner, he was not in a position to assess the factor in s.366(2)(d) as favourable to the appellant. It should be apparent that we agree with the Commissioner’s conclusion that the appellant only has limited prospects of success on her general protections application, albeit for different reasons.

[51] Ground 15 is as follows:

[52] The Commissioner’s reasons on the topic were as follows:

[53] The very point of a probationary period or, more particularly, the minimum period of employment required by s.382(a) and s.383 of the FW Act, is that an employer should be able to dismiss an employee if the employer is dissatisfied with the employee’s performance during that period without being exposed to an unfair dismissal claim - and not have to face an argument about whether its assessment of poor performance is justified.

[54] The appellant, having been dismissed after some five months of employment and before the expiry of her probationary period (and the qualifying period in the FW Act):

[55] In circumstances where the respondent was contending that it had substantial evidence that the appellant’s performance was poor such that it was entirely proper to dismiss her during her probation period, it is hardly surprising that the respondent made the submission recorded by the Commissioner. Be that as it may, the Commissioner did not in fact make an express finding that the appellant was vexatious. To the extent that the Commissioner should be taken as having accorded some weight to the Respondent’s submission, we are not persuaded that he was necessarily wrong in doing so.

[56] At this point some mention should be made of s.725 of the FW Act which provides:

[57] Sections 727 and 732 are as follows:

[58] There is no dispute that the appellant’s complaint to AHRC related to the appellant’s dismissal. Although no copy of the complaint was in evidence, the complaint must have been made under the Australian Human Rights Commission Act 1986 9 and, as such, is a complaint that comes within the description in s.732. The complaint did not fail for want of jurisdiction and no certificate under s.369 had issued in relation to the appellant’s general protections FWA application. However, the complaint was withdrawn by the appellant on or about 20 July 2010, that is, some time after she lodged her general protections application but before the hearing at first instance.

[59] Thus, the undisputed facts of this case raise an issue as to whether, as a result of the appellant lodging a complaint with the AHRC on 26 April 2010, Fair Work Australia had no jurisdiction in relation to the appellant’s general protections FWA application because of the operation of s.725 in combination with sections 727 and 732, notwithstanding the fact that the AHRC complaint was withdrawn shortly before the extension of time hearing was held.

[60] The resolution of that issue turns on whether the reference to “make an application or complaint” in s.725 is directed to the point in time that an application or complaint is lodged or whether it has an ambulatory operation and is concerned, on its true construction, with the point in time when the operation of s.725 falls to be considered in any given case (that is, an application is properly considered as being “made” while ever it is being pressed). The possible application of s.725 was raised by this bench for the first time during the hearing of the appeal and neither party was properly prepared to argue it. Given that we have decided in any event that permission to appeal should be refused we have decided against expressing a view on that issue in the absence of considered argument.

[61] Ground 16 is as follows:

[62] The Commissioner’s reasons on the topic were as follows:

[63] For the reasons given in paragraph [35], the Commissioner did not act on the observations in paragraph [34]. However, the Commissioner was in fact correct to treat the criterion in s.366(2)(e) as neutral: the evidence in question did not relate to employees in a similar position to the appellant because none of those employees was still within their probationary period.


[64] In our view, in the particular circumstances of this case and for the reasons given above, the Commissioner was correct not to regard the advice given by the FWO - or, more precisely, the failure of the FWO to give advice about the possibility of a general protections FWA application - as an exceptional circumstance that justified an extension of time. Even if it be accepted that the FWO gave incorrect advice in response to the appellant’s complaint (a matter that is far from clear), that incorrect advice does not explain the appellant’s delay in the period from late April 2010 to 3 June 2010.

[65] One of the matters relied on by the appellant was the need to travel to Queensland to support her father who had to undergo surgery for a very serious illness. The Commissioner was (correctly) satisfied that this constituted an exceptional circumstance but concluded that it accounted for, at most, 20 days of the period between dismissal and the filing of the general protections FWA application. It is apparent from the Commissioner’s reasons that he was not satisfied that there was a satisfactory explanation for the balance of the delay and that, consequently, the discretion to extend time should not be exercised in favour of the appellant.

[66] We are not persuaded that the Commissioner’s decision is affected by an error that would have altered that outcome. In our view the Commissioner reached the correct conclusion on the material before him. On that material we would reach the same conclusion.

[67] In all the circumstances we have come to the view that permission to appeal should be refused and we do so.



C. Nulty on her own behalf.

K. Stenner for Blue Star Group Pty Ltd.

Hearing details:

October 27.

 1   [2010] FWA 6989

 2   (1936) 55 CLR 499 at 504 per Dixon, Evatt and McTiernan JJ

 3   [2010] FWAFB 7251

 4   [2007] FCA 388 (27 March 2007)

 5   at paras [23]-[27]

 6   (2006) 155 IR 22 at [35] - [36]

 7   Transcript at PN273ff

 8   See Transcript at PN296-7 - the reference to “first hearing” would appear to be a reference to the conciliation conference on 18 June 2010.

 9   See s.46P - and the appellant conceded as much during oral submissions at the appeal hearing.

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