Abubakar Barry v KEC Power Pty Ltd T/A Genus Industrial Services
[2022] FWC 1817
•13 JULY 2022
| [2022] FWC 1817 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Abubakar Barry
v
KEC Power Pty Ltd T/A Genus Industrial Services
(C2022/2561)
| COMMISSIONER YILMAZ | MELBOURNE, 13 JULY 2022 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time denied.
On 22 April 2022, Mr Barry Abubakar lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against KEC Power Pty Ltd t/a Genus Industrial Services (Genus). Mr Barry commenced employment as a trades assistant with Genus, a labour hire company and was placed with Powerlines Plus in the Pilbara for a three-week swing roster. Work commenced on 13 March 2022 and the swing shift concluded on 22 March 2022 with travel from the site to Perth.
Mr Barry contends that he was employed on 1 March 2022 and dismissed by phone on 21 March 2022. He submits that the telephone call from Genus advised him to pack up all of his belongings as he would no longer be required. During the hearing he acknowledged payment for travel on 22 March 2022, from the Pilbara site to Perth. I accept that the last day of employment was 22 March 2022.
Mr Barry submits that he was not advised of a reason for his dismissal, and a few days before his injury he was praised by his line manager.
He submits that he was dismissed because of an injury that he sustained on 19 March 2022, while Genus submit that the termination of employment was due to poor work performance.
Genus submits that on 13 March 2022, their client assessed Mr Barry’s performance as poor, which was prior to the injury. They further submit that the assessment of performance and decision to dismiss Mr Barry was consistent with clause 4 of the contract of employment which states:
“4. Probation Period
Your assignment is subject to a six (6) month probationary period. The probationary period is a continuation of our selection and recruitment process. During this period, we will assess your work performance. At any time during your probationary period, either party may terminate the employment with one week’s notice or forfeit a week’s ordinary pay in lieu of notice.”
Genus tendered in evidence a timesheet for Mr Barry’s work hours which showed payment to Mr Barry of 6 hours on 22 March 2022 for travel time. Genus submit that Mr Barry was paid 1 week in lieu of notice.
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 10 days after the 21-day statutory time limit.
Applicant’s submissions
Mr Barry submits that he sustained a shoulder injury while shovelling on 19 March 2022, he obtained medical attention and reported the injury to his manager. He submits that his manger put him to work on light duties even though the medic advised that he was to rest the shoulder, place ice on it and take the rest of the day off. He submits that on the Monday (21 March 2022) before he was due to fly out, his employer Genus advised him to pack up all of his belongings as he was no longer required.
Mr Barry submits that his dismissal is a contravention of his workplace rights in terms of:
· S.343 Coercion, and
· S.351 Discrimination.
Respondent’s submissions
Genus submit that in his short period of employment Mr Barry was assessed as a poor performer. An email from the worksite line manager instructs Genus to not return Mr Barry to the site, citing his lack of performance.[1]
It submits that on 19 March 2022, Mr Barry reported to his line manager that he sustained a shoulder injury during off work hours in the gym.[2] Mr Barry attended the site medic and on report of the injury, the site supervisor placed him on spotter duties instead of physical duties.
On either 21 or 22 March 2022, the Genus supervisor contacted Mr Barry to advise that he was no longer required. The Genus supervisor that contacted Mr Barry states that he informed him that he did not have the skill set required to conduct the work and the client no longer required him on site.[3]
Consideration
General protections applications involving dismissal must be made within 21 days.
However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a)The reason for the delay; and
(b)Steps taken to dispute the termination; and
(c)Prejudice to the employer; and
(d)Merits of the application; and
(e) Fairness between the person and other persons in a like position
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[4] where it was held that:
“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 regular occurrence, even though it can be a on 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.”[5]
I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
The general protections involving dismissal application was lodged with the Commission on 22 April 2022, 10 days late. Mr Barry filed an unfair dismissal application on 20 April 2022 but withdrew on being advised that he did not meet the minimum employment period. Mr Barry provides the explanation that he had a personal matter requiring him to travel overseas which was the reason for the delay. He tendered in evidence his passport and visa which showed entry and exit from Uganda in the period 30 March to 12 April 2022. He submits that there was no internet connectivity from the village in Uganda while he was there.
No further explanations were offered, in particular for the period preceding 30 March or from 12 April 2022.
Mr Barry also contends that he was unaware of the 21-day time frame until he was advised by his doctor. No evidence relating to the advice from the doctor was tendered. During the hearing Mr Barry stated that he received advice from his doctor after his dismissal and before his departure overseas. No satisfactory reason was provided for failure to file an application at this time.
Further Mr Barry provided no credible reason for filing the general protection application a further two days after the unfair dismissal application.
Genus submit that no exceptional reasons were given for the delay.
There must be a credible reason for the delay.[6] Having regard to Mr Barry’s submissions, that he was unaware of the requirements and unaware of the time frame until advised by his doctor cannot be accepted as being exceptional, unusual, out of the ordinary, uncommon or special. Mere ignorance of the statutory time limit is not an exceptional circumstance.[7] In any event Mr Barry was became aware of the timeframe, still in the period that his application could have been lodged on time, but he chose not to file the application within time.
Taking into account the submissions, I am not satisfied that Mr Barry has demonstrated credible reasons regarding this consideration; despite awareness of the timeframe no effort was made to file an application and no urgency taken on return from Uganda. I consider the reasons given for the delay do not weigh in his favour.
Steps taken to dispute the termination
Mr Barry contends that he challenged his dismissal by asking why he had to take his belongings. Genus submit that no challenge to the dismissal occurred until receipt of the general protections application.
This consideration does not weigh in Mr Barry’s favour, raising the question why he had to take his belongings does not satisfy the consideration of putting the employer on notice that the dismissal would be contested.
Prejudice to the employer
Mr Barry submits that the lateness does not disadvantage Genus.
Genus submit they would be disadvantaged due to the general expectation that time frames should be observed and as they dismissed an employee consistent with contractual provisions, an extension would create uncertainty.
While I note the submissions of Genus and agree that time frames should be observed and it follows that a party would expect a level of certainty, this consideration is concerned with prejudice a respondent would have not incurred had the application been made on time. In this instance there is no apparent prejudice to Genus. However, the mere absence of prejudice is an insufficient basis to grant an extension. Therefore, this consideration is neutral.
Merits of the application
Mr Barry contends that the dismissal occurred after his shoulder injury and he had no reason to suspect his performance was wanting, given the positive reinforcement of his performance by the line manager days before his injury. He provided no further explanation how the general protections provisions were contravened.
However, Genus tendered evidence an email from the line manager dated 13 March 2022 which predates the injury and shows a clear decision that Mr Barry would not be required beyond the swing shift. In addition, an incident report, while signed on 1 June 2022, provides further particulars concerning the assessment of poor performance and details regarding the alleged work injury. It is apparent from the evidence that the decision to terminate Mr Barry’s employment was made prior to his injury.
Having considered the submissions and evidence tendered, I cannot conclude that Mr Barry has a meritorious application. While I have not tested the merit and it is not appropriate to do so in an extension of time, Mr Barry’s allegations that the dismissal was because of the injury is without merit. Therefore, I do not consider this consideration in Mr Barry’s favour.
Fairness between the person and other persons in a like position
Mr Barry did not address this consideration with any detail.
Genus submits that it is unfair to other applicants that file applications within time or applicants that have not had their extension of time applications granted to allow an extension to Mr Barry’s application where there are no exceptional reasons.
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[8] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[9]
Genus has no other employees agitating similar issues, and no other matters were raised of similarity to Mr Barry’s matter. Consequently, I find this consideration neutral.
Conclusion
In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
It is on the balance of the considerations that I have decided not to grant an extension of time.
Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.
COMMISSIONER
Appearances:
Mr A. Barry, the Applicant.
Ms K. Roach for the Respondent.
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
7 July
[1] Email from Gary Walker 13 March 2022 to Genus.
[2] Incident report from Gary Walker noting incident, witnesses, and instruction to perform spotter duties.
[3] Email from Jayden Guppy, 25 May 2022.
[4] [2011] FWAFB 975.
[5] Ibid at [13].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[8] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].
[9] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
Printed by authority of the Commonwealth Government Printer
<PR743670>
0
0
0