Adam Franks v Woolworths Group Limited & Shane McDonald [2024] FWC 2750

1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Adam Franks v Woolworths Group Limited & Shane McDonald (C2024/5486) DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 2 OCTOBER 2024 General protections application filed out of time – circumstances not exceptional – application dismissed. Introduction [1] This decision concerns an application by Mr Adam Franks (Applicant) for the Fair Work Commission (Commission) to deal with a general protections dispute pursuant to s 365 of the Fair Work Act 2009 (Act) against his former employer, Woolworths Group Limited (Woolworths), and his former Nightfill Team Manager, Mr Shane McDonald (collectively, the Respondents). [2] The Applicant seeks an extension of time to lodge his general protections application in the Commission. [3] I conducted a hearing, by telephone, on 26 September 2024 in relation to the Applicant’s request for an extension of time. [4] The Applicant commenced employment with Woolworths as a casual Store Team Member on 24 January 2024 and was dismissed within his probationary period on 12 July 2024. The Applicant lodged his general protections application in the Commission on 8 August 2024. [5] Section 366(1) of the Act states that an application under s 365 must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 2 August 2024. The application was therefore filed six days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 366(2). [6] The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.1 Exceptional circumstances may include a single [2024] FWC 2750 DECISION -- 1 of 6 -- [2024] FWC 2750 2 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.2 [7] The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so. [8] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) any action taken by the person to dispute the dismissal; (c) prejudice to the employer (including prejudice caused by the delay); (d) the merits of the application; and (e) fairness as between the person and other persons in a similar position. [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters. Reasons for the delay [10] The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4 [11] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.5 Relevant facts and submissions [12] In his general protections application, the Applicant gave the following explanation for his application being filed outside the 21 day period provided for in the Act: “Awaiting further information from Rely, Woolworths People Advisory board (as to complaints lodged with them and any outcomes) and also awaiting advice from legal aide as was not aware -- 2 of 6 -- [2024] FWC 2750 3 of what further steps to take. Also illnesses related to work and complaints, stress due to job loss and family stressors and obligations.” [13] The Applicant provided a series of subsequent emails to the Commission on 24 September 2024 in support of his application for an extension of time. Those emails reveal, amongst other things, the following information: (a) The Applicant experienced a number of stressful events in the months leading up to his dismissal, including the passing away of his partner’s grandmother, his partner’s grandfather suffering a stroke, his father undergoing cancer treatment and surgery, attending medical appointments with and for his son, communicating with his son’s school in relation to treatments and support requirements for his son, struggles with his partner’s mental health, and overcoming a flu/chest infection and COVID-19 just before his dismissal. (b) Immediately after his dismissal on 12 July 2024, the Applicant spent 10 days to two weeks recovering from his illness. (c) Following his dismissal, the Applicant’s first priority was to look into his family’s finances and work out how to pay the family’s expenses. (d) Before his dismissal, the Applicant had made complaints against Woolworths which he believes led to shift losses and put his family into financial hardship. Despite reaching out to Woolworths for assistance through various means, the Applicant considers that he received unsatisfactory communication. The Applicant was waiting on further advice and outcomes, which the Applicant considered seemed to drag out without the provision of any real assistance or advice. This added to the stress and financial difficulties being experienced by the Applicant. (e) It took the Applicant several emails and phone calls just to get his final pay acknowledged and processed. This was money that the Applicant desperately needed at the time. On 22 August 2024, the Applicant’s final pay was processed. (f) The Applicant’s partner had to claim a parenting payment and the Applicant had to claim Jobseeker, which was approved on 12 August 2024. On 13 August 2024, the Applicant received an email from the Department of Employment and Workplace Relations referring to the fact that he had “recently agreed” to his “Job Plan”. (g) On 5 July 2024, the Applicant raised a number of concerns with Woolworths in relation to his employment. On 15 July 2024, the Applicant sent an email to Woolworths challenging his dismissal and the reasons for it and stating that he was “in the process of organising a legal case against Shane McDonald and against Lakewood Woolworths”. The Applicant sent a further email to Woolworths on 17 July 2024 in relation to the reasons for his dismissal and an underpayment of his last week’s wages. On 23 July 2024, the Applicant received an email from Woolworths informing him that his case had been raised to the relevant team and he would receive a further email when the review was completed. On 6 August 2024, the Applicant received an email from Woolworths responding to the concerns raised by him on 5, 15 and 17 July 2024. The Applicant was dissatisfied with this response from Woolworths. -- 3 of 6 -- [2024] FWC 2750 4 (h) After not receiving any help through Woolworths’ internal complaints mechanism, the Applicant sought assistance from Legal Aid. The Applicant had appointments with Legal Aid on 5, 7 and 8 August 2024. Legal Aid advised the Applicant “on immediately contacting FWC on August 10th in hopes we were not too late as to lodge as our circumstances had been quite chaotic”. (i) On 8 August 2024, the Applicant filed his general protections application in the Commission. [14] Although I have sympathy for the Applicant in terms of the financial stress and personal difficulties he was facing following his dismissal from Woolworths on 12 July 2024, taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the delay in filing his general protections application. The Applicant was able to write emails to Woolworths on 15 and 17 July 2024, raising various concerns about his dismissal and the reasons for it. I consider that the Applicant was capable of preparing and lodging an application in the Commission within 21 days of his dismissal in relation to the termination of his employment with Woolworths. Waiting for a response from Woolworths, waiting for legal advice, and not being aware of what steps to take following his dismissal does not provide the Applicant with an acceptable or reasonable explanation for not filing his general protections application by 2 August 2024., [15] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 2 August 2024 weighs against the Applicant’s contention that there are exceptional circumstances. Action taken to dispute the dismissal [16] The Applicant took action to dispute his dismissal by raising his concerns with Woolworths on 15 and 17 July 2024. This weighs in favour of a conclusion that there were exceptional circumstances. Prejudice to the employer [17] I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. Merits of the application [18] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. -- 4 of 6 -- [2024] FWC 2750 5 [19] The Applicant contends that he was dismissed because he made complaints about rostering, training and safety concerns. He also claims that he was discriminated against on the basis of his family or carer’s responsibilities and he was dismissed in connection with being temporarily absent from work because of illness. The Respondent denies these allegations and contends that the Applicant was dismissed during his probationary period in relation to inappropriate interactions with his Line Manager and an incident on 18 June 2024 where the Applicant allegedly pulled a freezer pallet onto the shop floor, placing team members at risk of injury. [20] The facts, circumstances and reasons for the Applicant’s dismissal would need to be carefully considered at a final hearing after the cross examination of relevant witnesses. I do not consider that it is possible at this early stage of the proceedings to come to an informed view of the merits of the Applicant’s general protections application. Having regard to all the circumstances, I consider the merits of the Applicant’s general protections application to be a neutral consideration. Fairness as between the person and other persons in a similar position [21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts. [22] Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration. Conclusion [23] Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took some action to dispute his dismissal, the other relevant factors are either neutral or weigh against a finding of exceptional circumstances. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon. [24] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2). Accordingly, the Applicant’s general protections application must be dismissed. -- 5 of 6 -- [2024] FWC 2750 6 DEPUTY PRESIDENT Appearances: Mr A. Franks appeared for himself. Ms S. Georges, Employee Relations Case Specialist, Woolworths Group Limited, appeared for the Respondents. Hearing details: 2024. Newcastle (by telephone): 26 September. Printed by authority of the Commonwealth Government Printer <PR779883> 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13] 2 Ibid 3 Long v Keolis Downer [2018] FWCFB 4109 at [40] 4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31] 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39] -- 6 of 6 --