Andrew Whiddett v Hughes Brothers Enterprises Pty Ltd

[2022] FWC 964

[2022] FWC 964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Andrew Whiddett

v

Hughes Brothers Enterprises Pty Ltd

(C2021/8694)

COMMISSIONER YILMAZ MELBOURNE, 27 APRIL 2022

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time denied.

1. On 17 December 2021, Mr Andrew Whiddett lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Hughes Bros Enterprises Pty Ltd (Hughes). Mr Whiddett commenced employment on 22 June 2021 and his employment terminated on 29 October 2021.

1. Mr Whiddett was employed by Hughes in the position of casual nontrade spray painter.

1. On 11 March 2022, I held a mention and programming hearing, where Mr Whiddett indicated that he was willing to resolve his dispute if his wage entitlements were corrected. A private conference did not resolve the wage entitlement dispute. Subsequently, directions were issued for the submission and hearing. Mr Whiddett confirmed receipt of the directions, however he did not comply with the directions. He did attend the non-compliance hearing on 19 April 2022 and advised that he wanted his application to proceed and would rely on oral submissions on the day of the hearing. Hughes filed and served their written submissions in compliance with the directions and attended the hearing. Hughes contend that Mr Whiddett terminated his own employment while Mr Whiddett contends that his employment terminated due to the actions of his employer.

1. Mr Whiddett did not attend the hearing, nor did he respond to telephone calls or email on the day. I am satisfied that Mr Whiddett received the directions and at the non-compliance hearing Mr Whiddett was reminded of the hearing date and time. This decision is made based on the material before me and in Mr Whiddett’s absence from the hearing. I note that Mr Whiddett made no attempt to contact the Commission following the hearing.

1. While Hughes contend that it did not dismiss Mr Whiddett, in the absence of evidence from the Applicant or the Respondent that the termination was a resignation or a termination at the initiative of the employer, I cannot so find. I therefore now consider the matters pertaining to an extension of time.

1. Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 28 days after the 21-day statutory time limit.

Applicant’s submissions

1. In the general protections application, Mr Whiddett contends that the reasons that led to him “finishing up” was due to behaviour that made him feel unsafe.[1]

1. He submits that his dismissal is a contravention of his workplace rights in terms of:

·   s.340 Protection of Workplace Rights, and

·   s.346 Protection of Industrial activities.

1. The application also made reference to discrimination; however, no details were provided. In fact, Mr Whiddett provided no details on how any of the general protections provisions that he identified were allegedly contravened.

Respondent’s submissions

1. Hughes submit that Mr Whiddett was employed as a casual and terminated his own employment by abandonment of his shift. Further, it is submitted that Mr Whiddett was being managed for performance and attendance issues.[2]

1. Hughes submit that it wrote to Mr Whiddett on 19 November 2021, advising him that he abandoned his employment. A copy of this letter was not tendered in evidence. It further submits that Mr Whiddett at no time contended that he was dismissed, neither in his application or in any correspondence to the Respondent post termination. The Commission has not seen any of the correspondence between the parties.

Consideration

1. General protections applications involving dismissal must be made within 21 days.

1. However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a)The reason for the delay; and

(b)Steps taken to dispute the termination; and

(c)Prejudice to the employer; and

(d)Merits of the application; and

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

1. The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[3] where it was held that:

“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 regular occurrence, even though it can be a on 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.”[4]

1. I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

1. The general protections involving dismissal application was lodged with the Commission on 17 December 2021, 28 days late. Mr Whiddett states that his application is late because he “was waiting to hear back from my employer… about my holiday annual leave that I was entitled to for the eighteen weeks I worked.” It appears that the negotiations between the parties concerning the payment of annual leave deteriorated on either 18 November 2021 or soon after. No other explanations are given for the delay in filing the application.

1. There must be a credible reason for the delay.[5] I do not agree that the reason for the lateness is exceptional, unusual, out of the ordinary, uncommon or special. I am not satisfied that Mr Whiddett has demonstrated credible reasons regarding this consideration, and I consider the reasons given for the delay does not weigh in his favour.

Steps taken to dispute the termination

1. Mr Whiddett does not address this consideration. Hughes submit that no action was taken to dispute the termination of employment, nor contend that the termination was a dismissal at the initiative of the employer.

1. This consideration does not weigh in Mr Whiddett’s favour.

Prejudice to the employer

1. Mr Whiddett does not address this consideration,

1. Hughes submit that it was seriously inconvenienced by the lateness of the application being a small business which resulted in the Managing Director working outside business hours to address the application and Mr Whiddett’s correspondences.

1. While I accept that Hughes would have been inconvenienced, that inconvenience is insufficient to determine prejudice to the employer. However, the absence of prejudice is an insufficient basis to grant an extension. This consideration therefore is neutral.

Merits of the application

1. Mr Whiddett provided no explanation how the identified general protections were allegedly contravened.

1. Hughes contend that Mr Whiddett was not dismissed and the conduct alleged to have occurred was strongly contested.

1. Based on the limited information tendered and absence of any evidence, I can only conclude on the face of the material that Mr Whiddett has a weak case. Therefore, I do not consider this consideration in Mr Whiddett’s favour.

Fairness between the person and other persons in a like position

1. Neither party addressed this consideration. Consequently, I find this consideration neutral.

Conclusion

1. In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

1. It is on the balance of the considerations that I have decided not to grant an extension of time.

1. Having considered all of the evidence and submissions against each 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 matter is dismissed.

COMMISSIONER

Appearances:

R. Doohan for the Respondent.

Hearing details:

2022
Melbourne (By Video using Microsoft Teams)
20 April.

[1] Applicant’s Form F8 at Q3.1.

[2] Respondent’s Form F8A Response at Q5.1.

[3] [2011] FWAFB 975.

[4] Ibid at [13].

[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

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