Andrew Mason v Greens Building Products

[2019] FWC 6261

[2019] FWC 6261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Andrew Mason
v
Greens Building Products
(C2019/3647)

DEPUTY PRESIDENT YOUNG MELBOURNE, 9 SEPTEMBER 2019

Application to deal with contraventions involving dismissal - extension of time.

[1] This decision concerns an application by Mr Mason under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] The date that Mr Mason’s employment ended was 9 May 2019. His application was not lodged until 13 June 2019. The period of 21 days ended at midnight on 31 May 2019 and the application was therefore lodged 13 days out of time. Mr Mason seeks that the Commission allow a further period of time for the application to be made. The Respondent company opposes the grant of an extension of time.

[3] On 29 August 2019 I conducted the proceeding by way of determinative conference. Mr Kendrick appeared on behalf of the Applicant. Mr Mason gave evidence. Ms Savage appeared on behalf of, and gave evidence for, the company, as did Mr Travis Savage.

Background

[4] Mr Mason is an Aboriginal man. He commenced employment with the company on 11 October 2018 as a casual truck driver. His employment was terminated on 9 May 2019. Mr Mason had previously been employed by the company from 29 June 2015 until 29 January 2016 and had also been employed by the company from 11 April 2018 until 10 October 2018 on a permanent part-time basis.

Consideration

[5] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 1

[6] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) 2, where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.3

[7] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.”

Reason for the delay

[8] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 4 or a reasonable explanation.5 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd the Full Bench noted that the absence of an 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 the circumstances must be considered.6 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.7

[9] In his materials 8 Mr Mason submits that the reasons for the delay were manifold. Firstly, he submits that he was confused as to the discussion with Mr Savage on 9 May 2019 and that he was not expressly told that his employment was terminated. Consequently, he submits, it took many days before he realised that his employment had been terminated in the conversation with Mr Savage on 9 May 2019 and that he had to “read between the lines somewhat”.9 Secondly, he submits that he was greatly shocked and distressed by the dismissal and experienced deep anxiety about his ability to support his family and meet his financial obligations, including meeting the payment schedule for a loan he had recently taken out to purchase a car.10 In his application, Mr Mason describes this as a “chronic emotional and psychological melt down” at the time of losing his job.11 Thirdly, at hearing, it was further submitted that Mr Mason is a simple man and not aware of his rights.

[10] The company denies that Mr Mason did not understand that Mr Savage terminated his employment on 9 May 2019. They say that Mr Savage told Mr Mason that the company had had too many issues with him and “had to let him go”. The company also says that after his conversation with Mr Savage on 9 May 2019 (Termination Conversation) Mr Mason took all his belongings with him and told Mr Savage that he would “sort something out” consistent with Mr Mason understanding that his employment had ended.

[11] At the determinative conference, Mr Mason gave evidence that following the Termination Conversation with Mr Savage on 9 May 2019, he took his belongings from the company’s premises and told Mr Savage at the end of the Termination Conversation that he would get a job somewhere else. He also gave evidence that from 9 May 2019 he did not receive any further daily texts from Mr Savage regarding work for the following day as had been the established practice and, further, that he did not expect to receive further texts as he “knew he had been fired”. None of the above is consistent with Mr Mason not understanding at the time of the Termination Conversation that his employment had been terminated. Accordingly, I find that on 9 May 2019 not only did Mr Savage terminate Mr Mason’s employment but also that at that time Mr Mason understood that his employment had been terminated. There is therefore no acceptable or reasonable explanation for the delay on this basis.

[12] I accept that Mr Mason was shocked and distressed about losing his job, however this is both an understandable and very common reaction. It is not out of the ordinary or unusual. Mr Mason did not provide any medical evidence to support his assertion that he suffered a “chronic emotional and psychological melt down” after his termination, or that his mental state in any way precluded him from lodging his application within the 21 day period. As such, I do not consider that any shock, distress or anxiety suffered by Mr Mason after his termination provides a reasonable or acceptable explanation for the delay in lodgement.

[13] Ignorance of one’s rights is not an acceptable explanation for late lodgement. 12 Further, Mr Mason’s materials disclose that he consulted Mr Kendrick on 4 June 2019 regarding his dismissal and was at that time informed of the time frame for lodgement.13 Notwithstanding that, Mr Mason’s application was not lodged for a further 9 days.

[14] Accordingly, in my opinion, Mr Mason has failed to provide an acceptable or reasonable explanation for the delay in lodgement. This weighs against the granting of an extension of time.

Action taken by the person to dispute the dismissal

[15] It is uncontested that Mr Mason did not dispute his dismissal. This weighs against the granting of an extension of time.

Prejudice to the employer

[16] The company is a small business with seven employees. It submits that business is very tough and that it is being exposed to an additional financial burden due to having to divert time and resources to what it says is an unmeritorious claim. As such, it submits that it is prejudiced. Although this may be the case, the company provided no evidence to support these submissions. In those circumstances, I consider this to be a neutral consideration.

Merits of the application

[17] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[18] Mr Mason submits that adverse action has been taken against him in contravention of section 351 of the Act. Specifically, Mr Mason submits that he was dismissed because of his race or colour. Mr Mason’s evidence was that Mr Savage commenced the Termination Conversation with the words “I’m not a racist but…”. Mr Mason submits that a declaration of non-racism at the beginning of any process is a mechanism to disguise an underlying racist intent.

[19] The company does not dispute that Mr Mason is an Aboriginal man or that adverse action in the form of dismissal was taken. However, the company say that it dismissed Mr Mason for poor performance. Mr Savage denies making the alleged statement and says that he commenced the Termination Conversation with words to the effect of “I’ve nothing against you personally”. He gave evidence that in the last year he had multiple conversations with Mr Mason regarding his performance, including in relation to lateness, breaks, using his phone during work hours, time sheets, delivery time and damage to property and had provided Mr Mason with two written warnings. Documentary evidence of these matters was tendered. 14

[20] Although on the evidence and material before me, I consider Mr Mason’s claim to be weak, given the interlocutory nature of this proceeding, I am prepared to consider the merits of the application to be a neutral consideration.

Fairness as between the person and another person in a like position

[21] Mr Mason submitted that his position was substantially less fair than a non-Aboriginal person in a similar position because, he says, it is reflective of the decades of discrimination in Australian society. Mr Mason made reference to a range of matters, including the over representation of Aboriginal and Torres Strait Islander people in custody and the stolen wages case. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided. 15 Further, the comparison should be limited to a comparison of persons who have had also their employment terminated and are capable of making an application under section 365.16 As such, I am not assisted in my consideration of the fairness as between Mr Mason and others in a like position by the matters raised by Mr Mason in this regard. I consider this to be a neutral consideration in the present matter.

Conclusion

[22] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[23] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist.

[24] Accordingly, I therefore decline to grant an extension of time under section 366(2). Mr Mason’s application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

I Kendrick of Aboriginal & Torres Strait Islander Legal Service (QLD) Ltd for the applicant.

S Savage and T Savage for the respondent.

Hearing details:

2019.

Melbourne (by telephone):

August 29.

Final written submissions:

Applicant, 17 July 2019

Respondent, 28 August 2019

Printed by authority of the Commonwealth Government Printer

<PR712140>

 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

 2   [2011] FWAFB 975

 3   At [13]

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 5   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 7   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

 8   Applicant’s Outline of Argument, dated 17 July 2019, Question 1d

 9   Form F8 General protections application involving dismissal, Question 3.3, paragraph 5

 10   Applicant’s Outline of Argument, Question 1d

 11   Form F8 General protections application involving dismissal, Question 1.4, paragraph 2

 12   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975

 13   Form F8 General protections application involving dismissal, Question 1.4, paragraph 1

 14   Respondent’s Outline of Argument, attachment

 15   Wilson v Woolworths [2010] WA 2480 at [24 - 29]

 16   Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]