Anthony Johnston v Empire Holdings Pty Ltd

[2017] FWC 698

[2017] FWC 698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Anthony Johnston
v
Empire Holdings Pty Ltd
(C2017/212)

COMMISSIONER SAUNDERS NEWCASTLE, 6 FEBRUARY 2017

Application to deal with a general protections application involving a dismissal – extension of time granted

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Anthony Johnston (the applicant) a further period for his general protections application (the Application) to be made.

The jurisdictional objection

[3] On 2 February 2017, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave evidence in support of his application. The respondent adduced evidence from Mr Will Pitchforth, Managing Director.

Legislative scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(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.”

[6] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”   

[7] Ignorance of the timeframe for making a general protections application is not an exceptional circumstance. 4

Consideration

Paragraph 366(2)(a) - reason for the delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] There must be an acceptable reason for the delay in making the general protections application. 7

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8

[11] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 9 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:10

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events

[12] There is no dispute and I am satisfied on the evidence that the applicant was dismissed by the respondent on 20 December 2016.

[13] The 21 day time period for the applicant to make his general protections application expired on 10 January 2017. 11 Given that the applicant lodged his Application with the Commission on 11 January 2017, the Application was lodged one day late.12

[14] In accordance with the principles summarised in paragraphs [8] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 10 to 11 January 2017. However, the circumstances from the time of the dismissal (20 December 2016) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[15] The applicant relies on the following reasons for the delay in filing his Application:

(a) In the period immediately after his dismissal on 20 December 2016, the applicant sent correspondence to the respondent in an attempt to resolve the matter without the need to commence any legal proceedings. One of those emails was sent by the applicant to the respondent on 24 December 2016. The applicant then says he was busy over the next week or so with Christmas and the New Year period. The applicant also gave evidence that by 24 December 2016 he was aware from information he had read on the Commission’s website that he had 21 days from his dismissal to file his Application;

(b) The applicant believed that he had made his Application within the 21 day time period by emailing it to the Commission on Friday, 6 January 2017. However, on 11 January 2017, the applicant phoned the Commission and was informed that no application had been received from him. He then proceeded to lodge his Application on 11 January 2017. The Application lodged by the applicant is dated 6 January 2017. The applicant produced a copy of the email he says he sent to [email protected] on 6 January 2017. The applicant says he did not get a response to his 6 January 2017 email, nor did he get a “bounce back” or any other indication that the email had not been sent to, or received by, the Commission; and

(c) The applicant gave oral evidence as to why he followed up the 6 January 2017 email five days later on 11 January 2017. He says that the two days after 6 January 2017 were the weekend, and then he worked on the Monday and Tuesday of the week commencing 9 January 2017 as a part of a trial with a new employer. The applicant has produced documents to support his claim that he worked on those two days. He then called the Commission on Wednesday, 11 January 2017, to follow up on his Application, at which time he was advised that his Application had not been received.

[16] I accept the evidence given by the applicant in relation to the matters set out in the previous paragraph. His assertion that he took those steps is supported, in the main, by documentary evidence and he was not shaken when he was cross-examined in relation to those matters. For example, even though the Commission has no record of having received an email or Application from the applicant on or around 6 January 2017, the applicant produced a copy of the email he says he sent to the Commission on that date. There is no explanation as to why the email was not received by the Commission. It was sent to the correct email address. The applicant did not receive any response to his email.

[17] Because the applicant did not receive an acknowledgement of lodgement, by email, from the Commission in relation to the Application he says he sent by email to the Commission on 6 January 2017, his Application was not lodged on 6 January 2017 in accordance with rule 14(4) of the Fair Work Commission Rules 2013. It follows that his Application was not lodged in accordance with the Fair Work Commission Rules until 11 January 2017.

[18] I accept that the applicant has provided an adequate explanation for the whole of the delay in lodging his Application. He did not unduly delay in following up his 6 January 2017 email with the Commission. I am satisfied that it was reasonable for him to contact the Commission on 11 January 2017, given he was not aware that his 6 January 2017 email had not been received by the Commission, his work commitments on 9 and 10 January 2017 and the weekend on the previous two days.

[19] I am also satisfied that the applicant did not sit on his hands between the date of his dismissal on 20 December 2016 and his first attempt at lodging his Application on 6 January 2017. He made attempts to resolve the matter with the respondent and there was then a short period over Christmas where the applicant was occupied with family matters before preparing his Application and attempting to send it to the Commission on 6 January 2017.

[20] For the reasons set out above, I am satisfied that the applicant’s circumstances were out of the ordinary course, unusual, special, and uncommon. This factor (s.366(2)(a)) weighs in favour of granting the applicant an extension of time.

Paragraph 366(2)(b) - any action taken by the person to dispute the dismissal

[21] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 13

[22] At the time of his dismissal the applicant challenged the respondent’s decision to terminate his employment. Further, by engaging in the communications that he did with the respondent in the period immediately following his dismissal the applicant also took action to dispute his dismissal. This weighs in favour of a finding that there are exceptional circumstances.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[23] Prejudice to the employer will weigh against granting an extension of time. 14 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.15

[24] A long delay gives rise “to a general presumption of prejudice”. 16

[25] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 17 No such evidence was adduced by the respondent in this case.

[26] Noting that the delay was one day, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[27] The applicant contends that the respondent has contravened s.340 and s.344 of the Act. The applicant was not able to explain, or produce any evidence to support, how he says the respondent exerted undue influence or undue influence on him in relation to a decision by him to do any of the things specified in paragraphs (a) to (e) of s.344 of the Act. Accordingly, I am satisfied that the applicant’s claim under s.344 of the Act does not have reasonable prospects of success.

[28] As to the applicant’s claim under s.340 of the Act, the applicant, like many other unrepresented people in his position, was not able to identify the workplace right he relies upon or clearly articulate the elements of his s.340 claim. However, after questioning the applicant about the basis for his claim and the factual matters he relies upon to support it, I came to understand that the applicant asserts he had a workplace right to take annual leave under the Act by reason of the fact he had that leave approved by his employer and the respondent took adverse action against him by dismissing him because he took that leave. The respondent denies that it has contravened s.340 of the Act and says that it did not approve the applicant’s leave and did not dismiss him because he had taken such approved leave.

[29] Some evidence was adduced at the hearing of this extension of time application in relation to issue of whether the leave was approved. The applicant relies on an alleged oral approval, emails he says support such an approval, and the fact that he was paid during his leave. The respondent relies on its denial of the alleged oral approval, payroll records showing the request for annual leave was declined, and an alleged failure by the applicant to hand-over or delegate duties and responsibilities while he was away. Ultimately, the question of whether the leave was approved, whether the applicant conducted a proper handover, and the reasons for the termination of the applicant’s employment will only be able to be determined at a final hearing, after all relevant documents have been produced and all relevant witnesses cross examined about those issues. In those circumstances, I am satisfied that the merits of the applicant’s s.340 claim should be a neutral criterion in my consideration of the application to extend time.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[30] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 18 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[31] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[32] Having taken into account the matters referred to in paragraphs [12] to [31] above, I am, on balance, satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. For the reasons set out above, the applicant’s circumstances were out of the ordinary course, unusual, special and uncommon. I am particularly influenced by the reasons for the delay, the applicant's attempt to lodge his Application within time, and his unfortunate failure to do so.

[33] I am satisfied that it is appropriate in all the circumstances to exercise my discretion to grant an extension of time. Accordingly, the application for an extension of time to 11 January 2017 is granted. An order giving effect to this decision will be issued separately in PR590051.

COMMISSIONER

Appearances:

Mr Anthony Johnston on his own behalf

Mr Chris Agnew, solicitor for the respondent

Hearing details:

2017

Newcastle

February, 2.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Section 366(2) of the Act.

 3 [2011] 203 IR 1

 4   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 5   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].

 6   Plaksa v Rail Corporation NSW[2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31]

 10   [2016] FWCFB 349 at [31]

 11   That is, 21 days from 20 December 2016 (not including 20 December) is 10 January 2017.

 12   That is, 11 January 2017 is 1 day after 10 January 2017.

 13   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 16   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 17   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 18   [2016] FWCFB 6963

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