Adam Stencel v MSS Security an SIS Group Enterprise T/A MSS Security

[2015] FWC 3712

[2015] FWC 3712

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Adam Stencel
v
MSS Security an SIS Group Enterprise T/A MSS Security
(C2015/2357)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 2 JUNE 2015

Application to deal with contraventions involving dismissal - late lodgement - extension of time not granted.

[1] Mr Stencel has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with MSS Security Pty Ltd (MSS). At a telephone conference convened on 2 June 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in s.366 and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Mr Stencel's application was lodged on 1 April 2015. In that application Mr Stencel advised that he was constructively dismissed.

[3] The Employer’s Response to the application (the Form F8A) asserted that Mr Stencel resigned his employment and that his last day of work was 31 January 2015. In this response MSS asserted that the application lacked foundation as Mr Stencel was not dismissed at the initiative of the employer and was not made redundant. MSS also asserted that the application was lodged outside of the 21 day time limit specified in the FW Act and advised that it opposed any extension of that time limit.

[4] The application was the subject of a conference with me on 7 May 2015. At this conference MSS requested that the late lodgement issue be determined before any further action was taken in relation to the application. Accordingly, the matter was considered in a telephone conference on 2 June 2015.

[5] Mr Stencel provided a witness statement and supporting material. On the basis of this statement and the advice provided by Mr Stencel I have concluded that Mr Stencel resigned with effect from 31 January 2015. Mr Stencel asserts that he was left with no option other than to resign and that he should have been paid a redundancy payment following the loss, by MSS of its security contract with the Holden Manufacturing Plant. Mr Stencel described his, and other former employees’ shock and emotional distress over changes to their employment and concerns over possible underpayments. Mr Stencel and various other former MSS employees considered accessing legal advice but decided to pursue their concerns through contact with the Fair Work Commission and then the Fair Work Ombudsman (the Ombudsman). After initial telephone enquiries, Mr Stencel lodged a formal complaint to the Ombudsman about MSS on 19 March 2015. This complaint asserted that he had been underpaid, not given his appropriate annual leave entitlement or sick leave entitlements and appropriate uniform payments. In addition, this complaint stated:

“MSS Security at the end of the contract at Holden’s actively encouraged people to apply for a job with G4S Security. They said that they couldn’t guarantee any work at the contracts completion at Holden’s and would most probably terminate people that they couldn’t find work for. It was a scare tactic to move people on as to avoid redundancy payments as per legislation. I Adam Robert Stencel emailed John Toser, Operations Manager and Rebecca Jansen HR Manager at MSS Security a request to transfer to their newly won contract at the South Australian Law Courts. There was not reply. Security Officers were encouraged to resign and correspondence was forwarded by Rebecca Jansen advising the appropriate timeframes of resignation. A Security Officer Craig Strickland - Hancock didn’t formally resign and was contacted a week after the contract ended by Rebecca Jansen demanding a resignation letter. Craig asked if there was any work which Rebecca didn’t provide any answers too. Craig then advised that he should be paid a redundancy payment which Rebecca said wouldn’t be occurring. Craig Strickland - Hancock received his severance payment from MSS Security without even formally resigning. This should be investigated as unfair dismissal. Many Security Officers wanted to stay with MSS Security and they failed to offer them any work beyond the final day of the contract. They insisted that everyone resign and no redundancy payments were awarded to any Security Officers.” 1

[6] On 27 March 2015 the Ombudsman advised Mr Stencel that a general protections application involving dismissal had to be submitted to the Fair Work Commission. This application was lodged a week later.

[7] Mr Stencel participated in the telephone conference. Ms Jansen, the MSS Human Resources Manager, represented MSS. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[8] Section 365 relevantly states:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[9] Section 366 states:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[10] On the information before me I am satisfied that the application was made some 40 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.366 in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 which stated:

“[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 a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[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, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[11] I have concluded that Mr Stencel was not aware of the time limit relative to a dismissal action when he contacted the Fair Work Commission on 23 February 2015 because he did not refer to concerns over the termination of his employment. He was advised of that time limit on 27 March 2015 when the Ombudsman told him that concerns about the termination of his employment required a separate application. Notwithstanding this, Mr Stencel’s advice clearly confirms that he had concerns over the termination of his employment some time before he made this application or acted to pursue the matter. An appointment with a lawyer was made for 4 March 2015 but was later cancelled for financial reasons. Mr Stencel advised that it took several weeks after he concluded his employment with MSS to collect information relating to his own, and the circumstances of other former MSS employees. Further, that he and other employees had sought to act collectively in this respect.

[12] Mr Stencel’s delay in accessing advice in relation to this application cannot be regarded as indicative of an exceptional circumstance. To the extent that Mr Stencel was not aware of the time limit for the lodgement of this application, this is not indicative of an exceptional circumstance. To the extent that Mr Stencel relies on the time it took to collect information relative to his own, and the circumstances of other employees in similar positions, this too cannot represent an acceptable reason for the delay or an exceptional circumstance. Consequently, I am not satisfied that Mr Stencel has established that the reasons for this substantial delay in lodging the application reflect exceptional circumstances.

[13] I have concluded that Mr Stencel was clearly aware that his employment with MSS concluded on 31 January 2015 and I have taken that date as the date that termination of employment took effect. I note that Mr Stencel raised concern about the termination of his employment, amongst other concerns, with the Fair Work Ombudsman on 23 February 2015 and confirmed these concerns on 19 March 2015. Notwithstanding this, those issues were raised outside of the 21 day time limit.

[14] I consider that an extension of time of this magnitude would most likely prejudice MSS but have not relied on this in reaching a conclusion about the extension of time issue.

[15] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me. I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[16] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[17] Accordingly I have concluded that the material before me does not establish that Mr Stencel's circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR567942) giving effect to this decision will be issued.

Appearances (by telephone):

A Stencel on his own behalf.

R Jansen for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

June 2.

 1   Applicant email dated 25 May 2015, letter referenced in point 6 (posted on 19 March to FWO Complaint Team), para 9

 2   [2011] FWAFB 975

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<Price code C, PR567941>