Andrew Vougazianos v Harvey Norman Computing T/A Parasupa P/L

[2018] FWC 3507

[2018] FWC 3507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Andrew Vougazianos
v
Harvey Norman Computing T/A Parasupa P/L
(C2018/2615)

COMMISSIONER PLATT ADELAIDE, 14 JUNE 2018

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

Summary

[1] Mr Andrew Vougazianos has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Harvey Norman Computing T/A Parasupa P/L (Parasupa) on 23 April 2018 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 15 May 2018.

[3] Mr Vougazianos’ application did not identify that it was made beyond the 21 days from the date of dismissal.

[4] Parasupa filed a form F8A Employer Response on 23 May 2018 which indicated that the dismissal occurred on 23 April 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 25 May 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 12 June 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties who were directed to provide an outline of argument of their respective positions by 4 June 2018.

Submissions

[6] Mr Vougazianos provided written submissions which are relevantly summarised as follows:

•  He was notified of his dismissal verbally on 23 April 2018.

•  The reason for the dismissal was that he had not reached his targets and was not suitable for the role.

•  In terms of the reason for the delay, Mr Vougazianos advised his life took a turn for the worse and he and his family were left homeless from 27 March to 20 April 2018.

•  As a result, his belongings were put into storage and assistance was sought from Anglicare and Housing SA. The family slept in several motels and caravan parks during this time.

•  When a property became available they had difficulties with the removalist company. The property was much smaller than Mr Vougazianos previous accommodation.

•  Mr Vougazianos’ personal computer was amongst the boxes and he was unable to locate it. The computer was needed to find out how to dispute the dismissal.

•  As a result of not being able to locate the computer, Mr Vougazianos had to attend upon a library to download the paperwork and gather more information. The use of the computer was limited to 60 minutes per day.

•  In addition, Mr Vougazianos was trying to “get his life back on track” and attending upon Centrelink daily, looking for employment (a large list of contacts was submitted to that effect), helping his children with their homework and continuing with his TAFE SA course, arranging a home removalist and dealing with rental agents.

•  Mr Vougazianos believes that Parasupa breached s.433 of the Act by coercing him and/or pressuring him to achieve performance targets.

[7] Parasupa provided written submissions which are relevantly summarised as follows:

•  The dismissal occurred on 23 April 2018 and Mr Vougazianos was advised verbally on that day.

•  Mr Vougazianos was provided time off from work prior to the dismissal to attend to the issues as a result of the loss of his home.

•  Mr Vougazianos was dismissed as a result of his work performance which was reviewed on 2 January 2018 and 3 March 2018.

•  Parasupa denies breaching s.344 of the Act.

•  Parasupa will suffer prejudice as a result of the need to defend this application.

[8] A Hearing was conducted by way of telephone conference on 12 June 2018. A sound file record of the telephone conference was kept. Mr Vougazianos represented himself and Ms Rachel Leonow (Proprietor) represented Parasupa.

[9] Mr Vougazianos reiterated the information contained in his submissions and further advised:

•  He determined to challenge his dismissal as soon as he was notified.

•  He was successful in obtaining alternate accommodation two days prior to his dismissal.

•  He had difficulties with the removalist and the relocation was not completed until     1 May 2018, after that the new home was full of boxes.

•  He had no telephone or internet access.

•  Mr Vougazianos stated he was getting his life settled after the dismissal and getting a new job was a higher priority than lodging this claim.

[10] Parasupa reiterated it submissions and contended the claim had no merit and no exceptional circumstances existed.

[11] Mr Vougazianos was invited to respond to the position that this claim lacked merit but reiterated that he was placed under undue pressure to achieve his performance targets.

Applicable Law

[12] Section 366 of the Act relevantly states:

“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.”

[13] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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 every day 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.”

Consideration

[14] This general protections application was made 1 day outside of the 21 day time limit and therefore can only be pursued if this time limit is extended.

[15] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[16] It appears that the reason for the delay was due to the impact of the forced relocation upon Mr Vougazianos and his family, the fact that Mr Vougazianos’ computer was not available due to it being packed away in a removal box, and competing priorities (job search, supervising his children’s home work, TAFE Course and lodging this claim).

[17] If Mr Vougazianos has failed to provide a credible explanation forany part of the delay that would tend to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters. 2

[18] Based on the material before me (as summarised above), Mr Vougazianos has not explained the period of the delay which occurred after 3 May 2018 (allowing him 2 days to locate his PC after the removalist company had completed their task).

[19] Mr Vougazianos observed that “getting a new job was a higher priority than lodging his claim”. In my view, the primary cause of the delay was a conscious choice made by Mr Vougazianos.

Any action taken by the person to dispute the dismissal

[20] No action other than the lodgement of this application was taken.

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

[21] Parasupa contends that the making of this application has caused them prejudice in the time and expense of defending it. The period of the delay is short and whilst Parasupa may have experienced prejudice it is not determinative in this matter.

The merits of the application

[22] In terms of the merits of the application, there is no dispute that Mr Vougazianos was under pressure to achieve his sales targets. There is no evidence before me to suggest, and Mr Vougazianos was not able to articulate any basis which would result in a breach of s.433 of the Act. It is my preliminary view that Mr Vougazianos’ general protections claim has no prospects of success. Accordingly, I have regarded the merits as a factor which weighs against granting an extension of time.

Fairness as between the person and other persons in a similar position

[23] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[24] For the reasons I have set out above, I am not satisfied that Mr Vougazianos’ circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order³ reflecting this decision will be issued.

COMMISSIONER

Appearances:

A Vougazianos the Applicant.

R Leonow on behalf of the Respondent.

Hearing details:

2018.

Adelaide:

12 June.

Printed by authority of the Commonwealth Government Printer

<PR608138>

1 [2011] FWAFB 975.

 2   [2018] FWCFB 901.

3 PR608140.