Allen Boyns v Sims Group Australia Holdings Ltd T/A Sims Metal Management

[2015] FWC 7480

[2015] FWC 7480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Allen Boyns
v
Sims Group Australia Holdings Ltd T/A Sims Metal Management
(C2015/5790)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 29 OCTOBER 2015

Application to deal with contraventions involving dismissal.

[1] On 21 August 2015 Mr Allen Boyns (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Sims Group Australia Holdings Ltd t/as Sims Metal Management (the Respondent).

[2] The Applicant commenced employment with the Respondent on 12 June 2012. He was Administration Manager at the Respondent’s Darwin work site. He says that he was dismissed on 30 July 2015 and the dismissal took effect on that day.

Alleged Contravention

[3] The Applicant submits that he had no choice but to resign as a result of a sequence of events which involved demotions and warnings from management. A breach of s.351 of the Act is alleged.

Respondent’s Submissions

[4] The Respondent denies that it forced the Applicant to resign. It further denies that there has been a breach of the General Protections provisions of the Act.

[5] The Respondent states that there are a number of issues with respect to the Applicant’s performance and conduct. In any event, the Applicant resigned of his own free will.

Relevant Legislation

[6] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Approach of the Commission

[7] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[8] On 7 September 2015, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 27 October 2015.

[9] The Applicant was self-represented. The Respondent was represented by Mr J. Abbott, who was granted permission to appear as a paid agent.

Matters to be taken into account pursuant to s.366(2)

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] The Applicant’s explanation for lodging one day out of time was that he was seeking to discuss the matter with the employer. He misinterpreted the deadline and was uncertain about the form to be completed.

[12] Notwithstanding the short period, the reasons for delay cited by the Applicant fall well short of establishing exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[13] The Applicant had been discussing the issue with the Respondent’s Human Resources Officer.

[14] The Respondent provided evidence about these discussions which indicates that the Applicant did not press that his resignation was in fact a dismissal.

[15] The evidence of these discussions does not support a finding that there were exceptional circumstances.

(c) Prejudice to the employer (including prejudice caused by the delay)

[16] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) The merits of the application

[17] The Applicant alleges that he was forced to resign by a concerted campaign by his immediate manager to discredit him. The need for the Applicant to establish that there was a constructive dismissal means that he would have an additional “hurdle” to get over for the application to be successful.

[18] The Respondent’s evidence was that the Applicant had not, in fact, been demoted. The evidence of Mr Farmer, the Respondent’s Northern Territory General Manager, was that there had not been any “campaign” against the Applicant, but rather he had been treated with consideration after his medical treatment. The warning given to the Applicant was justified on the basis of performance issues.

[19] In summary, the Respondent denies that the Applicant was dismissed. On the material before the Commission it is difficult to disagree with this conclusion. It is also apparent that any changes to the Applicant’s duties and warnings given to him were based on a range of performance issues.

[20] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[21] This factor was not addressed and has not been taken into account.

Conclusion and Order

[22] Having considered all 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 application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Allen Boyns under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

A. Boyns, applicant;

J. Abbott with P. Farmer for the Respondent.

Hearing details:

2015

By Telephone:

October 27.

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