Alex Bundalo v Palm Beach Soccer Club
[2017] FWC 1732
•28 MARCH 2017
| [2017] FWC 1732 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Alex Bundalo
v
Palm Beach Soccer Club
(C2017/230)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 28 MARCH 2017 |
Application to deal with contraventions involving dismissal.
[1] Mr Alex Bundalo alleged that the termination of his employment by the Palm Beach Soccer Club was in breach of the general protections provisions of the Fair Work Act 2009. The Club denied the allegation. It denied that it terminated Mr Bundalo. It said Mr Bundalo was not an employee of the Club.
[2] Mr Bundalo alleged that his dismissal took effect on 7 December 2016 and as such his general protections application lodged on 12 January 2017 was not made within 21 days of the date the dismissal took effect.
[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances, can it then exercise its discretion to decide whether to extend time.
[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd1 where the Full Bench said:
“[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." [Endnotes not reproduced]
(a) the reason for the delay;
[5] Mr Bundalo was in Italy when he received an email dated 7 December 2016 from the Club advising him that he would not be required to coach in 2017. Mr Bundalo did not return to Australia until 16 December 2016. He then attempted to enter into discussions with the Club about its decision. On 18 December 2016, Mr Bundalo attended the Club AGM and the President said he would meet with him. On 20 December 2016, Mr Bundalo sent the President an email requesting a meeting to discuss the decision. On 20 December 2016, the President responded and made some allegations. On 21 December 2016, Mr Bundalo responded to the allegations and sought a meeting to discuss the decision.
[6] On 22 December 2016, Mr Bundalo sought legal advice and was advised that he was not able to bring an unfair dismissal claim as he had not been employed for the minimum period of employment. He said he was not made aware of the general protections provisions of the Act.
[7] On 24 December and on 30 December 2016, he again asked for a meeting with the President. On 30 December 2016, the President advised that he had been away for a week and he would respond to the email of 24 December 2016. There was nothing in that email which would have suggested to Mr Bundalo that the President intended reversing the decision. On 9 January 2017 he again requested a meeting and when he had no response by 12 January 2017 he lodged this application.
[8] At the hearing Mr Bundalo said he became aware that he could made a general protections application four to five days, and at outside seven days, after he met with his lawyer. When asked why he had not lodged the application then he said he thought it was preferable for him to meet with the President and find out why the decision to not engage him for the 2017 season had been made. He said he thought that if he made this application he would have lost the opportunity for a favourable reconsideration of the Club’s decision. He said he did everything he could to resolve the dispute. At the hearing he said he had decided on 9 January 2017 to lodge the application but it took him three days to complete the application.
[9] I am not satisfied that Mr Bundalo had a reasonable explanation for the whole of the delay. It is not unusual for an applicant to seek to resolve his or her dispute without recourse to legal proceedings. While such an approach is not unreasonable the consequence of the 21 day time limit set by Parliament is that the scope for such an approach is extremely limited. Once Mr Bundalo became aware that he could make a general protections application he had an obligation to do so. That time limit expired on 28 December 2016. Even accepting the submission of the Club that it was reasonable for Mr Bundalo to wait until the President responded on 30 December 2016, he has not provided a reasonable explanation of why he took another 12 days to lodge his application.
[10] This weighs against a finding that there are exceptional circumstances.
(b) any action taken by the person to dispute the dismissal;
[11] It is not disputed that Mr Bundalo made repeated attempts to discuss the termination of his contract with the Club to no avail. This weighs in favour of a finding that there are exceptional circumstances.
(c) prejudice to the employer (including prejudice caused by the delay);
[12] The Club submitted that it would be prejudiced if the matter were to proceed, however it called no evidence to support this submission.
[13] A lack of prejudice weighs in favour of a finding that there are exceptional circumstances.
(d) the merits of the application;
[14] In the matter of Kornicki v Telstra-Network Technology Group2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit." 3
[15] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case."4
[16] Mr Bundalo said he was employed on a contract for the 2016 season. It expired on 17 November 2016. On 10 November 2016 he signed a new contract which provided that he was engaged for the 2017 season and returned it to the Club. That contract was not signed by the Club. On 7 December 2016 the Club advised Mr Bundalo that his services would not be required for 2017.
[17] For Mr Bundalo to succeed in this claim he will need to establish that he was an employee. Further he will need to establish that he was an employee at 7 December 2016. If he was not an employee at 7 December 2016, his claim is bound to fail.
[18] Mr Bundalo says his contract for the 2017 season was terminated because he did not select certain players. It is not clear how Mr Bundalo says that this contravenes the Act. Even if the allegation was true, whilst it may be unfair, it is not clear that Mr Bundalo was terminated because he has a workplace right or because he exercised a workplace right or because he proposed to exercise a workplace right.
[19] Mr Bundalo says he was threatened with dismissal if he asked questions about anything in the club. It is not clear if the person who made the threat was the decision maker in this matter. He raised this with the President but he did so after 7 December 2016. It cannot be said that this complaint to the President after the decision was taken to terminate his contract could be the reason his contract was terminated.
[20] Mr Bundalo says that a board member placed him under “undue pressure” and “undue influence” to prevent him from exercising his workplace right to ask questions about his role and responsibilities. Mr Bundalo has not articulated how this conduct contravenes s.344 of the Act.
[21] The Club submitted that Mr Bundalo had not identified any workplace right for which he was treated adversely. Further he has not identified any workplace law. It submitted that Mr Bundalo was not an employee and therefore is not able to make a general protections claim. It said Mr Bundalo was a hobbyist not an employee. Further, it submitted that at 7 December 2016 he was not employed. It relied on the fact that the contract had not been signed by it. However given the 2016 contract was also not signed by the Club, this submission is difficult to understand.
[22] There are significant factual and legal disputes between the parties that cannot be resolved at this time. As I am not able to make a final determination on those matters, I consider the merits of the claim to be a neutral consideration.
(e) fairness as between the person and other persons in a similar position.
[23] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm5 considered this criterion and said:
“cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.6”
[24] There is no evidence that there are any other persons in a similar position to Mr Bundalo. I consider this to be a neutral consideration.
Conclusion
[25] I am not satisfied that there are exceptional circumstances which warrant granting Mr Bundalo an extension of time. I am not satisfied that there was a reasonable explanation for the delay. While I am satisfied that Mr Bundalo did dispute the decision once he returned to Australia that is not sufficient to find that there are exceptional circumstances.
[26] I accept that Mr Bundalo is aggrieved by the Club’s conduct. His complaint that, prior to making a decision to terminate the contract that he should have been provided with reasons and given an opportunity to respond, is not unreasonable. However the fairness of the Club’s conduct is not a matter that is relevant to the question of whether there are exceptional circumstances.
[27] Mr Bundalo’s application for an extension of time is therefore dismissed and consequently his general protections application is dismissed and an order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
A. Bundalo on his own behalf.
E. McPhillips for the Respondent.
Hearing details:
2017.
Melbourne and Queensland, by telephone link:
24 March.
1 [2011] FWAFB 975.
2 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
3 Ibid.
4 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
5 [2015] FWC 8885.
6 Ibid at [29].
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