Andrew McLeod v Yagbani Aboriginal Corporation Inc

[2016] FWC 9093

[2016] FWC 9093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Andrew McLeod
v
Yagbani Aboriginal Corporation Inc.
(C2016/6427)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 DECEMBER 2016

Application to deal with contraventions involving dismissal.

[1] Mr Andrew McLeod alleged that the termination of his employment was in breach of the general protections provisions of the Fair Work Act 2009. Yagbani Aboriginal Corporation Inc. denies the allegation.

[2] Mr McLeod, in his application, said he was dismissed on 25 July 2016. Yagbani said that Mr McLeod was notified of his dismissal on 27 July 2016. Whichever date was the effective date of dismissal, Mr McLeod’s application filed on 28 October 2016 was not lodged within 21 days of the date the dismissal took effect.

[3] The matter was listed for a telephone hearing on 16 December 2016. A notice to that effect was sent to Mr McLeod on 2 December 2016 by email and post. Mr McLeod did not file any material in accordance with the directions and on 12 December 2016 a telephone message was left for Mr McLeod asking him to contact the Commission. Another message was left on 13 December 2016. On 13 December 2016, an email was sent to Mr McLeod advising him of the need to file his material and reminding him that the matter was set down for hearing by telephone on 19 December 2016. A copy of that message was sent to Mr McLeod’s mobile phone number. Mr McLeod did not respond to any of these attempts to contact him and he did not attend the hearing by telephone.

[4] In his application Mr McLeod provided no information about why his application was not filed within 21 days and no information about his claim against Yagbani. Yagbani opposed Mr McLeod being granted an extension of time.

[5] The 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.

[6] 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;

[7] Mr McLeod has provided no explanation as to why his claim was not lodged within 21 days. This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[8] Mr McLeod has provided no information about when he became aware of his dismissal. There is no evidence on which I could find that he was not aware of his dismissal by 27 July 2016 and as such he had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[9] There is no evidence that Mr McLeod took any action to dispute the dismissal. This weighs against a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[10] Yagbani submitted that having this claim resurface four months after the original incident has caused it to consume valuable time for Yagbani staff. I am satisfied that there is prejudice to the employer if the matter were to proceed however that prejudice is not sufficient to weigh against a finding that there are exceptional circumstances.

(e) the merits of the application;

[11] 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

[12] 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 

[13] Mr McLeod has provided no material on which I could consider the merits of his claim. This weighs against a finding of exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[14] There were no submissions or evidence in relation to this criterion and I find it to be a neutral consideration.

Conclusion

[15] I am satisfied that Mr McLeod was notified of the hearing. I am further satisfied that he has had an opportunity to put his case for an extension of time to the Commission and he has failed to do so. Therefore there is no basis on which the Commission could be satisfied that there are exceptional circumstances. Hence, Mr McLeod’s application for a general protections remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant.

W. Tupper for the Respondent.

Hearing details:

2016.

Melbourne and Darwin, by telephone link:

16 December.

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 at [14].

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