Alex Sandy Brown v Busy Bees Australia Employer Pty Ltd [2024] FWC 972

[2024] FWC 972 The attached document replaces the document previously issued with the above code on 15 April 2024 to amend the paragraph numbering. Associate to Deputy President Dobson Dated 16 April 2024 -- 1 of 18 -- -- 2 of 18 -- 1 Fair Work Act 2009 s.365—General protections Alex Sandy Brown v Busy Bees Australia Employer Pty Ltd (C2024/457) DEPUTY PRESIDENT DOBSON BRISBANE, 15 APRIL 2024 Application for the FWC to deal with a dismissal dispute pursuant to s. 365 of the Fair Work Act 2009 – Whether the application was made within the 21 days after the dismissal took effect – Whether there are exceptional circumstances to allow a further period for the Applicant to make the application – No exceptional circumstances – Application dismissed. Overview [1] Mr Alex Sandy Brown (Applicant) has made an application to the Fair Work Commission (Commission) pursuant to s. 365 of the Fair Work Act 2009 (the FW Act) for the Commission to deal with a dispute in relation to allegations by the Applicant that he was dismissed from employment by Busy Bees Australia Employer Pty Ltd (Respondent) in contravention of General Protections provisions in Part 3-1. The application was lodged in the Commission on 25 January 2024. [2] The Applicant commenced employment with the Respondent as a Lead Educator at an early childhood education and childcare centre on 29 November 2023. The Applicant alleges that adverse actions were taken by the Respondent because he exercised a workplace right to make an inquiry or complaint about a co-worker not following hygiene practices in changing children’s nappies and further alleges that he was “victimised” because of his gender in a predominately female workplace. [3] The Respondent objects to the application contending that the application was not lodged within 21 days of the dismissal taking effect as required by s. 366(1) of the FW Act (jurisdictional objection). The Respondent asserts that the Applicant was dismissed with immediate effect on 13 December 2023, and this was confirmed in a letter of termination provided to the Applicant on the same day. [4] In the Form F8 application, the Applicant asserts that he was notified of the dismissal on 13 December and 22 December 2023, but the dismissal took effect on 19 January 2024. The Applicant’s contention is that although he was dismissed on 13 December 2023, before he was eligible to lodge the present application in the Commission, he was required by the Children Services Award 2010 to attempt to resolve his grievances with the Respondent under the dispute [2024] FWC 972 [Note: An appeal pursuant to s.604 (C2024/2807) was lodged against this decision - refer to Full Bench decision dated 5 June 2024 [[2024] FWCFB 278] for result of appeal.] DECISION -- 3 of 18 -- [2024] FWC 972 2 resolution procedures in clause 9 of the Award. In the Applicant’s view, the dismissal was “confirmed” on 19 January 2024 after receiving a telephone call from the CEO of the Respondent informing the Applicant that the decision about his dismissal would not be changed. [5] Before dealing with the dispute, I must be satisfied that the application was made within the 21-day statutory time period pursuant to s. 366(1)(a). If the application was made out of time, I must consider whether there are exceptional circumstances to justify the grant of a further period for the Applicant to make this application, taking into account the matters in s. 366(2). [6] Directions were issued on 8 February 2024 for a determinative conference/hearing to determine the jurisdictional objection. The parties were directed to file and serve outlines of submissions and evidence in support of their respective positions in relation to the date the dismissal took effect and the matters in s. 366(2) of the FW Act. [7] With the consent of the parties, a determinative conference was conducted on 12 March 2024 by video. The Applicant was self-represented and gave evidence on his own behalf. The Respondent was represented by its Chief People Officer, Ms Leanne James. [8] In support of his case, the Applicant relied on his written submissions filed respectively on 15 February1 and 29 February 20242. Although the Applicant did not provide a witness statement, I received the evidentiary material appended to his written submissions given that the Applicant was self-represented. The Respondent relied on its written submissions and the appended material in support of its position. The materials filed by the parties were consolidated into a Digital Court Book to which references were made during the determinative conference. When must an application for the Commission to deal with a dismissal dispute be made? [9] Section 366(1) of the FW Act provides that such an application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the Commission allows. [10] As I have earlier stated, it is a matter of record that the application was lodged in the Commission on 25 January 2024. [11] The approach to determining when a dismissal takes effect was summarised in Goodenough v CXN Transport Pty Ltd T/A Con-X-Ion Airport Transfers3, as follows: “[30] The FW Act does not define when a dismissal takes effect. Some guidance, however, may be found in s. 117(1) of the FW Act, which provides as follows: ‘117 Requirement for notice of termination or payment in lieu Notice specifying day of termination -- 4 of 18 -- [2024] FWC 972 3 (1) An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given). Note 1: Section 123 describes situations in which this section does not apply. Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by: (a) delivering it personally; or (b) leaving it at the employee’s last known address; or (c) sending it by pre‑paid post to the employee’s last known address.’ [31] In Ayub v NSW Trains4 a Full Bench of the Commission considered the proper meaning and application of the expression “within 21 days after the dismissal took effect” in s. 394(2)(a) of the FW Act. In particular, the Full Bench considered whether in any circumstances a dismissal could be said to have taken effect before it was communicated to the relevant employee observing that: ‘[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows: ‘[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).’ -- 5 of 18 -- [2024] FWC 972 4 [18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied. [19] When the termination occurs without notice on the basis that a sum of money is paid in lieu of the notice that would otherwise be required, then the termination would take effect when communicated to the employee subject perhaps to the additional requirement that the amount in lieu of notice has actually been paid to the employee.’ … [34] Subject to some exceptions which are not presently relevant, the principles from cases concerning when a dismissal takes effect, are: • A failure on the part of an employer to provide written notice of termination of employment as required by s. 117 of the FW Act will not necessarily result in a finding that a dismissal has not taken effect; • To effect a termination of employment requires plain and unambiguous communication by words or conduct; • A dismissal does not take effect until it is communicated to the employee and cannot take effect retrospectively; and • The 21-day period for an employee to lodge an unfair dismissal application does not commence to run before an employee, who has been dismissed at the initiative of the employer, becomes aware that he or she had been dismissed, or at least has a reasonable opportunity to become aware of it. [35] It is axiomatic that a plain and unambiguous communication of dismissal includes the date on which the dismissal is to take effect.” [12] Although the above discussion concerned an application for an unfair dismissal remedy, I consider that the principles and approach are apposite to the question of when a dismissal takes effect for the purpose of s. 366(1)(a) of the FW Act. When did the dismissal take effect? Evidence and submissions [13] The factual background relating to the Applicant’s dismissal can be stated as follows. On 29 November 2023, the Applicant commenced employment as a Lead Educator on a full- time basis at an early childhood education and childcare centre operated by the Respondent. The terms and conditions of the Applicant’s employment were governed by a contract of employment. [14] Relevantly, under the terms of the contract, the Applicant was subject to a probationary period of 6 months after his commencement. Clause 4 of the contract provides that “[d]uring -- 6 of 18 -- [2024] FWC 972 5 the probation period, either [the Applicant] or [the Respondent] may terminate this Agreement by giving one week’s notice in writing, or in the case of [the Respondent], by making a payment in lieu of notice”. Under clause 11.5, the Modern Award applicable to the Applicant’s employment was the Children Services Award 2010 as specified in Schedule 1 of the contract. Clause 11.5 goes on to provide that the Award applied to the Applicant as a matter of law and did not form part of the Agreement. [15] In his Form F8 application, the Applicant stated that on 29 November 2023, he witnessed an episode of vomiting by one of the toddlers. On 30 November 2023, he witnessed two other episodes of vomiting by another toddler. In his experience, the Applicant said that three episodes of vomiting was “officially an outbreak of gastro” and without proper hygiene practices, it could spread quickly putting the health and safety of staff and children at risk. In the afternoon on 30 November 2023, the Applicant said that he also witnessed a staff member changing the nappies of children without wearing gloves or washing hands and he was convinced that this was “the cause of the gastro outbreak”. [16] On 1 December 2023, the Applicant said he followed the Speak Up Policy of the Respondent and reported his concerns in an email to Ms Stacey Sullivan (Service Manager). A copy of the Speak Up Policy was appended to the Applicant’s written submissions. As stated in the policy document, the Speak Up Policy aims to “provide an internal mechanism for addressing concerns about suspected misconduct” which includes, but is not limited to, child protection related issues, and health and safety or environmental issues. The Policy is said to enable staff to discuss concerns with their line manager, the People/HR Department or a senior manager, and once a concern has been raised, an internal assessment will be carried out to determine the scope of any investigation.5 The Speak Up Policy was also required to be read in conjunction with the Whistleblower Protection Regime Policy. [17] The Applicant’s email to Ms Sullivan sent on 1 December 2023 was in the following terms (salutations omitted): “I am just loving my time in the Toddler Rooms! Friendly staff, with lots of good communication and teamwork However, it appears that we have a Gastro Outbreak in the Toddler Rooms: [Toddler] vomited a huge amount on Wednesday [Toddler] vomited twice on Thursday This gastro outbreak is a risk to the other children, and also the Educators are at risk. Experienced Educators are required to do regular reflection, on what is happening with the children in their care. I have 5 years of childcare experience in Australia, and before that, 2 years in England, and 10 years in Canada, so I am obligated to use my skills and knowledge to contribute to my workplace…. however, as a new staff member it can be awkward to speak up… -- 7 of 18 -- [2024] FWC 972 6 The risk of communicable diseases can be greatly reduced through good hygiene practices, especially in the areas of toileting, and on reflection, I see two areas of concern regarding the Gastro Outbreak: 1 – I was surprised to find that in the Toddler bathroom, the only official nappy bin is on one side of the bathroom, far away from the change pad on Dana’s room side. That position makes it impossible to put a soiled nappy from Dana’s children in the nappy bin, unless one moves away from the child on the change pad, which would be very dangerous. I was told they just put poopy nappies, and soiled nappy wipes on the floor below the change pad, but that does not seem sanitary! I bought a small garbage bin, lined it with a plastic bag, and put it below Dana’s change pad, but I am not sure if they used it as a temporary transfer bin to hold a poopy nappy while the child was being changed? (Perhaps the big yellow bin on the floor could be the nappy bin for Dana’s side?) 2 – Thursday afternoon it was time for late nappy changes around 4 p.m. Teenager Dana went first for her room, and I was quite surprised how quickly she did them! Jean then started doing nappy changes for the Voyager’s room, and again I was quite shocked how fast it was, as the children just went in and out of the bathroom at lightning speed! I knew the rhythm of nappy changes, with a regular pattern of: 1. Put on gloves 2. Change nappy 3. Remove gloves 4. Clean change mat 5. Wash hands But Jean was operating so fast, it seemed that something was missing….so I watched a few of her changes and discovered that she was only doing part 2: 2. Change nappy and was missing parts 1, 3, 4, and 5! No gloves, no washing of hands or the change mat! Obviously this increases the risk of cross contamination, and I could now understand why there could be a gastro outbreak in Toddlers: poor hygiene practices. With this gastro outbreak it seems that there may be a need for some mentoring of Toddler staff, to make sure regular hygiene practices are being followed?” [18] After sending the email to Ms Sulivan on 1 December 2023, the Applicant said that Ms Sullivan, without any explanation, removed him from the Toddlers’ Rooms and assigned him to the “Pre-Kindy” Room for children who are 2 to 3 years of age. The Applicant stated that Ms Sullivan went on holidays some time thereafter. [19] On 13 December 2023, the Applicant said that he was asked to go to the office after lunch to complete his employee induction. The Applicant said he was surprised that his induction had not been conducted prior to this point and that he had received no formal induction or instructions about his role or duties when he first commenced two weeks earlier. -- 8 of 18 -- [2024] FWC 972 7 As part of his induction, the Applicant was required to read and acknowledge the policies of the Respondent. After several hours of induction, the Applicant said that he was called into another office by a manager acting temporarily in Ms Sullivan’s absence. The Applicant was then informed by Ms Emma Moloney (People & Culture Business Partner) that he “was being dismissed that very day”. [20] In an email sent by the Applicant to Ms Leanne James (Chief People Officer) on 14 December 20236, the Applicant stated that he “was shocked” when Ms Moloney announced that the Respondent was terminating him “that very day” and he “asked why this was happening”. His email stated that Ms Moloney’s response was that complaints had been received against the Applicant about his alleged refusal to do incident reports and to move to another position while changing nappies. The Applicant disputed those allegations in his email, set out his grievances at length, and argued that his dismissal was “victimisation” for speaking out with a genuine health and safety concern and because of his gender. [21] The Respondent stated in the Form F8A Response that Ms Moloney and Ms Jessica Chiementon from People and Culture, met with the Applicant via a virtual meeting at 11:15am on 13 December 2023. According to the Respondent, the Applicant was informed at the meeting that the business had decided not to continue his employment beyond the probation period and that his final day of employment was 13 December 2023. A copy of the termination letter dated 13 December 2023, signed by Ms Moloney, was delivered to the Applicant by hand and email on 13 December 2023. Although the Applicant did not provide a copy of the termination letter in his material and the only copy provided was appended to the Form F8A Response filed by the Respondent, the Applicant did not dispute that he was given a copy of the letter on 13 December 2023. The letter of termination states (salutations omitted): “13 December 2023 … Unsuccessful Probation Period – Termination of Employment Your probation period with Busy Bees is due to end on 28 May 2024. Busy Bees has decided not to continue your employment beyond your probation period. We elect to make a payment of one weeks’ pay in lieu of notice, and as such your final day of employment is today, 13 December 2023. You will receive payment for any outstanding wages and entitlements owing to you. If you require a separation certificate, please email [email address]. Yours Sincerely Emma Moloney People & Culture Business Partner Busy Bees Early Learning Australia”7 [22] On 15 December 2023, the Respondent said that the Applicant lodged a formal complaint through SafeCall. SafeCall is an independent third party that operates the Speak Up Services. Relevant concerns may be submitted to SafeCall via an online form or by telephone.8 -- 9 of 18 -- [2024] FWC 972 8 By email of 15 December 20239, Ms James was notified by SafeCall that a report, titled “Brown – Breach of policies/processes”, had been assigned to her for investigation and the first stage of the investigation was due to be completed by 22 December 2023. [23] Between 14 and 20 December 2023, there was an exchange of emails between the Applicant and Ms Narelle Robinson who appears to the Area Manager for the Respondent.10 In an email of 20 December 2023, Ms Robinson stated that she had been made aware that the Applicant’s concern was an open and current investigation that is sitting with the Chief People Officer. In an email reply on 20 December 2023, the Applicant said, among other things, that there were “major problems” with the HR Department but that he was “very eager for this mess to get sorted out and get back to work”11. [24] On 19 December 2023, the Applicant emailed Mr Phil McKenzie12 (CEO of the Respondent) outlining at length his allegations against the Respondent’s staff and claiming that they violated various policies of the Respondent. The Applicant similarly argued that he was dismissed because of “victimisation” and his gender. In closing, the Applicant stated that “I am just wishing to return to work, in an ethical workplace, as promised by the many Busy Bees policies I have read”. On 21 December 2023, the Applicant sent another email13 to Mr McKenzie further alleging that the Respondent’s HR staff had breached “Fair Work regulations about pay and payslips”. In this regard, the Applicant said although he received “an amount by bank transfer on December 13” from the Respondent, he was not provided with payslips. [25] On 22 December 2023, Ms James sent the following email to the Applicant in relation to the outcome of the SafeCall complaint and the Applicant’s dismissal: “Hi Alex With regards to the Speak Up you submitted on 14 December 2023. In your submission you allege that you had been vicitimised (sic)for speaking out regarding a health and safety concern that you raised on 1 December 2023 in an email to the Service Manager and discriminated against based on your gender. I have conducted a thorough investigation into the matters and have found that the termination of your employment was not based on the health and safety concern you raised or your gender. The termination of your employment was due to being unsuccessful in probation. Clause 4 in your Employment Agreement, signed 28 November 2023, states that your employment may be subject to a probationary period (six months) and that during the probationary period either party may terminate the Agreement by giving one weeks’ notice in writing or by making a payment in lieu of notice. As stated in the letter given to you at the meeting on 13 December 2023 stated that Busy Bees elected to make a payment of one weeks’ pay in lieu of notice. Therefore, based on my findings, the termination as unsuccessful in probation will stand and you will receive payment for any outstanding wages and entitlements owing to you. This matter is now closed. Regards Leanne” -- 10 of 18 -- [2024] FWC 972 9 [26] On 9 January 2024, the Applicant emailed a payroll personnel of the Respondent reiterating that he had not received any payslips and requested that he be provided with them.14 The Applicant also requested a separation certificate on 12 January 2024 for the purpose of applying for Centrelink.15 Further emails were sent by the Applicant to Mr McKenzie (CEO) on 11 and 15 January 2024.16 In those emails, the Applicant reiterated at length his grievances against the Respondent’s staff and requested that Mr McKenzie “provide strong ethical leadership to rectify this mess” with a suggestion that “a simple switch of [his] position to Busy Bees Coorparoo would be a simple way to resolve this”. [27] It is not in dispute that Mr McKenzie did not reply to any of the Applicant’s emails, but he contacted the Applicant by telephone on 19 January 2024 to inform the Applicant that he had read the emails sent by the Applicant and the decision to terminate the Applicant’s employment would not be changed. On 1 February 2024, the Applicant was provided the payslips as he had requested. [28] The Respondent said that following the Applicant’s dismissal on 13 December 2023, the Applicant sent no fewer than 30 emails to various members of the Respondent, both in Australia and in the United Kingdom, between 15 December 2023 and 17 January 2024. [29] In relation to the events on 13 December 2023, the Applicant described in his written submissions that the process by which he was dismissed was “chaotic” and the actions by the Respondent’s HR Department in both inducting and dismissing him on the same day as “the most bizarre and disorganised”. The Applicant took issue with the time of his dismissal submitting that the Respondent “claims that my dismissal took place at 11:15am on December 13, 2023…But that is not true.” The Applicant submits that “[m]y dismissal was actually late afternoon on December 13… as reported by me and as shown by objective third party evidence”. That evidence is a DiDi receipt and a screenshot of a timeline for 13 December 2023 recorded by Google. That evidence was said to show that his dismissal was carried out at 4:54pm on 13 December because he took a rideshare from the Respondent’s workplace in Woolloongabba to his home and that journey commenced at 4:55pm that day. [30] The Respondent submits that the Applicant’s dismissal was effected on 13 December 2023 and the email from Ms James dated 22 December 2023 (as outlined above) is satisfactory evidence of the Applicant receiving communication from the appropriate level of management confirming and upholding the termination of the Applicant’s employment on 13 December 2023. Findings [31] It is uncontested by the parties that the Respondent met with the Applicant over a virtual meeting to advise him of the termination on 13 December 2023 and further that the Applicant also received a copy of the termination letter both by hand and by email that same day. In terms of determining the time of the termination, this has a nugatory impact on the effect of determining the date and time by which the present application can be made.17 The letter clearly said it was a termination letter in the heading, that the 13th of December 2023 was the last day of employment and that notice would be paid in lieu.18 I find that the termination took effect on 13 December 2023. -- 11 of 18 -- [2024] FWC 972 10 Was the application made within 21 days after the dismissal took effect? [32] As the Full Bench has stated, “[t]he 21-day period prescribed… does not include the day on which the dismissal took effect.”19 [33] As I found above, the dismissal took effect on 13 December 2023. The final day of the 21-day period was therefore 3 January 2024 and ended at midnight on that day. The application was made on 25 January 2024. The application was made 22 days late. [34] The application having not been made within 21 days of the date on which the dismissal took effect, I must consider whether to allow a further period for the application to be made. Whether a further period should be granted by the Commission? [35] Under s. 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the Applicant 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 Applicant and other persons in a similar position. [36] Each of the above matters must be considered in assessing whether there are exceptional circumstances.20 [37] I set out my consideration of each matter below. Reason for the delay [38] As the application was not made by midnight on 3 January 2024, the delay is the period commencing immediately after that time until 25 January 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.21 [39] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.22 [40] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.23 Submissions -- 12 of 18 -- [2024] FWC 972 11 [41] In relation to the delay, the Applicant advanced a contention that his contract of employment makes reference to the Children Services Award 2010 (Award) and, as a childcare worker, he was required under the Award to follow the dispute resolution procedures set out in clause 9 to attempt to resolve a dispute with the Respondent in relation to what he felt was “adverse action and victimisation”. The Applicant submits that employees are not allowed to “go straight to Fair Work but must first engage all appropriate levels of management to try to resolve the dispute, before going to Fair Work”. In this regard, clauses 9.1 to 9.4 of the Award provide: “9.1 Clause 9 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES. 9.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor. 9.3 If the dispute is not resolved through discussion as mentioned in clause 9.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate. 9.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 9.2 and 9.3, a party to the dispute may refer it to the Fair Work Commission.” [42] In his written submissions, the Applicant asserts that “Fair Work also advises to follow the Dispute Resolution guidelines of your Employment Award”. In this regard, the information described by the Applicant as “Dispute Resolution guidelines” is an extract from a webpage on the Commission’s website that contains general information for members of the public in relation to resolving a dispute at the workplace. [43] Further, the Applicant contends that he followed the dispute resolution procedures under the Award by emailing Mr McKenzie on five different occasions, but Mr McKenzie responded to neither his emails nor his request for an in-person meeting. The only response he received was a phone call from Mr McKenzie on 19 January 2024, a month after his initial email sent on 19 December 2024. The Applicant argues that the delay was caused by Mr McKenzie because Mr McKenzie had failed to provide the Applicant with a timely response, notwithstanding attempts by the Applicant to resolve the dispute in a timely manner. [44] The Applicant also submits that there was a series of events, taken together, constitute exceptional circumstances. Those events include that Ms Sullivan, the Service Manager, was on leave when the dismissal occurred on 13 December 2023 and her role was performed by a temporary manager; that there was no basis for dismissing the Applicant based on his performance; and that the dismissal occurred just before Christmas and school holidays and many staff members would be taking leave. -- 13 of 18 -- [2024] FWC 972 12 [45] The Respondent submits that the dispute is not a dispute under the Award and, even if it were, the Applicant nevertheless received a response from the appropriate level of management “in a timely manner”. This is evident by the email from Ms James dated 22 December 2023 responding to the Applicant about the outcome of his SafeCall complaint and confirming the termination of his employment on 13 December 2023. In the Respondent’s view, the Applicant was not in any way prevented from submitting an application to the Commission within the 21-day timeframe from the date of dismissal, as required by s. 366 of the FW Act. Findings [46] Having regard to the above, I find the reason for the delay was ignorance of the timeframe required to bring this present application. The Applicant incorrectly believed that he was obliged to follow the dispute procedure in his Award before he could lodge this application to the Fair Work Commission. [47] The Applicant drew attention to information on the Fair Work Commission website that talked about disputes, rather than the termination of employment. Equally I note the Commission’s website has a number of major headings related to Job loss, dismissal and termination. There is a vast amount of information available in respect of bringing a claim. The Commission receives thousands of such applications a year. I do not accept the Applicants implication that the Commission’s website is misleading as to how a person can seek a remedy arising from the termination of the employment. [48] I find further reasons for the delay included the absence of Ms Sullivan on leave, with a temporary manager in her place and the dismissal occurring just before the Christmas and School holidays as set out in paragraph [44]. I note that the Applicant did not put evidence before the Commission that detailed the dates of the leave and specifically how the staff absences prevented him from lodging his application. I also note that statutory timeframe takes account of public holidays and weekends in determining the calculation of 21 days for the lodgement of this application.24 [49] I do not accept the Applicant’s contentions that there was no basis for the dismissal as a consequence of his performance as a reason for the delay. This is certainly a contention he is entitled to make in respect of the merits of his case but not in respect of his delay in filing the application. What action was taken by the Applicant to dispute the dismissal? [50] The Applicant submits that he took immediate and extensive action to dispute his dismissal by sending no fewer than 30 emails to staff members and key personnel of the Respondent both in Australia and the United Kingdom between 15 December 2023 and 17 January 2024. The Respondent agrees that the Applicant sent no fewer than 30 emails to various members of the organisation. Findings [51] Having regard to the matters I have referred to above, I find that the Applicant engaged in communications with the Respondent dealing with the circumstances of his termination and -- 14 of 18 -- [2024] FWC 972 13 it could be said that the Applicant in doing this, had taken action to put the Respondent on notice that its decision to terminate the Applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.25 What is the prejudice to the employer (including prejudice caused by the delay)? [52] The Applicant asserts that no prejudice would be suffered by the Respondent and that any unfair advantage was caused by the Respondent’s own failure to respond to the Applicant in a timely manner. In this regard, no submission or material contrary to the Applicant’s assertion has been advanced by the Respondent. Findings [53] In the circumstances, while I am not satisfied that a further period, if granted, would result in prejudice to the Respondent, the absence of prejudice to the Respondent by itself would not justify a further period being granted to the Applicant. I find this to be a neutral consideration. What are the merits of the application? [54] The competing contentions of the parties in relation to the merits of the application are set out in the application, response as well as materials filed in these proceedings. [55] It is well established that “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)”26. Having examined these materials, it is clear that the merits of the application turn on contested points of fact. I also note that the Respondent has only provided limited material in these proceedings. It is therefore not possible at this stage to make any firm or detailed assessment of the merits. [56] In the circumstances, I find that it is not possible to make an assessment of the merits of the application and that this is a neutral consideration. Fairness as between the Applicant and other persons in a similar position [57] In relation to this consideration, the Applicant in his submissions in reply refers to several case authorities27 comprised of decisions of the Commission and a judgment by the Federal Magistrates Court concerning a late application made pursuant to the Disability Discrimination Act 1992. I do not accept that those cases assist the Applicant’s case or are relevant to this consideration. Accordingly, neither party has raised any relevant matter, and I am unaware of any relevant matter, concerning this consideration. [58] I therefore find that there is nothing for me to weigh in my assessment and this is a neutral consideration. Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? -- 15 of 18 -- [2024] FWC 972 14 [59] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above. [60] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.28 Exceptional circumstances may 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 can be considered exceptional.29 [61] The Full Bench has previously found that ignorance of the statutory time limit is not an exceptional circumstance.30 The Full Bench’s findings in this respect are relevant when considering the Applicant’s reasons for the delay. That is that the Applicant should have sought out the information required to bring this claim in a timely manner. “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.” Emphasis added. [62] Staff take leave in all businesses from time to time. School holidays, Christmas and other important traditions occur on the calendar every year. These reasons, even when considered together do not in my view reach the definition of exceptional circumstances. [63] Having regard to all of the matters listed at s. 366(2) of the FW Act, I am not satisfied that there are exceptional circumstances. Conclusion [64] As I am not satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. [65] The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. -- 16 of 18 -- [2024] FWC 972 15 DEPUTY PRESIDENT Appearances: Mr A Brown, the Applicant. Ms L James, the Respondent. Hearing details: 2024. Brisbane (by Microsoft Teams): 12 March. Printed by authority of the Commonwealth Government Printer <PR773499> 1 Exhibit A1 – Applicant’s outline of submissions dated 15 February 2024. 2 Exhibit A2 – Applicant’s outline of submissions dated 29 February 2024. 3 [2023] FWC 715. 4 [2016] FWCFB 5500. 5 Digital Court Book p. 116. 6 Digital Court Book p. 204. 7 Digital Court Book p.224. 8 Digital Court Book p. 116. 9 Digital Court Book p. 227. 10 Digital Court Book p. 206. 11 Digital Court Book p. 206. 12 Digital Court Book p. 207. 13 Digital Court Book p. 207. 14 Digital Court Book p. 135. 15 Digital Court Book p. 139. 16 Digital Court Book p. 213. 17 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. 18 Digital Court Book p.224. -- 17 of 18 -- [2024] FWC 972 16 19 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. 20 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 21 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 22 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 23 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40]. 24 Acts Interpretation Act 1901 (Cth). 25 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. 26 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]. 27 [2018] FWCFB 901; [2023] FWC 3479; [2001] FMCA 109. 28 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 29 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 30 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23]. -- 18 of 18 --