Anthony Rawlinson v M & CK Engineering Services (WA) Pty Ltd T/A Specialised Industrial Maintenance

[2018] FWC 304

[2018] FWC 304

FAIR WORK COMMISSION

DECISION

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

Anthony Rawlinson
v
M & CK Engineering Services (WA) Pty Ltd T/A Specialised Industrial Maintenance
(C2017/6511)

COMMISSIONER RIORDAN SYDNEY, 18 JANUARY 2018

Application to deal with contraventions involving dismissal.

[1] Mr Anthony Rawlinson (the Applicant) was employed by M & CK Engineering Services (WA) Pty Ltd t/a Specialised Industrial Maintenance (the Respondent) from 16 January 2017 to 2 October 2017.

[2] The Applicant filed an unfair dismissal application on 9 October 2017.

[3] On 22 November 2017, the Respondent filed a jurisdictional objection with the Commission claiming that they were a small business on the basis that they had less than 15 employees therefore the Applicant did not satisfy the 12 month service threshold. As a result of the Respondent’s objection, the Applicant sought advice from MKI Legal on this same day.

[4] Following legal advice, the Applicant withdrew his unfair dismissal application on 23 November 2017 and filed the current general protections application on 24 November 2017.

[5] The Applicant has lodged his general protections application 32 days outside the statutory timeframe. Section 366 of the Fair Work Act, 2009 (the Act) states:

Section 366

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).

[6] Leave was granted in accordance with section 592(2) of the Act to allow the Applicant to be represented by Mr Nicholas Marouchak from MKI Legal. The Respondent was represented by its Managing Director, Mr Matt Kenna.

[7] The extension of time jurisdictional hearing was conducted via telephone on 19 December 2017.

[8] In assessing whether the Commission should grant an extension of time, the Commission must have regard to the matters set out in section 366(2) of the Act, which state:

Section 366

(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.

[9] The meaning of exceptional circumstances was considered by a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd 1, where it was held:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

Section 366(2)(a) – the reason for the delay

[10] The Applicant submitted that he had contacted the Commission’s Helpline to seek advice on his termination. The Applicant claims that he was advised to file an unfair dismissal application. The Applicant conceded that he did not advise the Helpline that the Respondent employed less than 15 people on the basis that he did not know how many people worked for the Respondent. Whilst I sincerely doubt that the Helpline gave the Applicant anything more than options rather than advice, based on this discussion, the Applicant filed his unfair dismissal application on 9 October 2017, just 7 days after his termination.

[11] The Applicant also submitted that he suffers from a cognitive impairment as a result of a motor vehicle accident a few years ago. The Respondent was unaware of this impairment or that the Applicant sometimes had difficulty in understanding and using computers.

[12] In Hambridge v Spotless Facilities Services Pty Ltd² a Full Bench held:

“[41] Having regard to the above matters, we are satisfied that exceptional circumstances exist. A simple procedural error by Mr Hambridge led to a set of circumstances which ultimately caused him to discontinue the first application and make the late second application, when in fact the matter would have been rectified by the use of powers under s.586 without the need to make any late application at all. That is clearly an unusual situation. The jurisdictional prerequisite for the grant of an extension of time is satisfied, and for the same reasons and taking into account the same matters we exercise our discretion in favour of granting to the extension. A mistake in using a wrong form by a self-represented applicant should not lead to an outcome which is fatal to the applicant’s access to the Commission’s jurisdiction.”³

(my emphasis)

[13] I am satisfied that there is sufficient similarity in the scenario of this case to apply the general principle expressed by the Full Bench in Hambridge. I have taken this into account.

Section 366(2)(b) – any action taken by the person to dispute the dismissal

[14] The Applicant lodged his unfair dismissal application 7 days after he was terminated following a telephone discussion with the Commission’s Helpline. The activity by the Applicant clearly shows his intention to dispute his termination. I have taken this into account.

Section 366(2)(c) - prejudice to the employer

[15] The onus of proving prejudice in this circumstance rests with the Respondent. The Respondent did not make any submissions in relation to prejudice. I have taken this into account.

Section 366(2)(d) – the merits of the application

[16] In Kornicki v Telstra-Network Technology Group 4 the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission held:

“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.” 5

[17] It was held in Kyvelos v Champion Sock Pty Ltd 6, that the Commission cannot make any finding on contested matters without hearing evidence, which is typically not called at this stage of the proceedings. The Full Bench went on to say that:

“The Commission should not embark on a detailed consideration of the substantive case.” 7

[18] The Respondent admitted that the Applicant was terminated for raising a pay claim in the presence of a representative of their client.

[19] I am satisfied that the Applicant’s case is not without merit. I have taken this into account.

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

[20] I am not aware of any other employee of the Respondent who has been terminated by the Respondent at the same time or in similar circumstances to the Applicant. I have taken this into account.

Conclusion

[21] I have taken into account all of the submissions that have been submitted by the parties. The fact that a matter that was raised by the parties has not been mentioned in this decision does not mean that that matter has not been taken into account.

[22] I am satisfied that the Applicant made a ‘procedural mistake’ following his discussion with the Commission’s helpline in submitting an unfair dismissal application rather than a general protections application. When the Respondent raised its jurisdictional objection, the Applicant immediately sought legal advice which resulted in the prompt discontinuance of his unfair dismissal application and the lodgement of his general protections claim. I concur with the views of the Full Bench that “…A mistake in using a wrong form by a self-represented applicant should not lead to an outcome which is fatal to the applicant’s access to the Commission’s jurisdiction.” 8

[23] At all times the Applicant has shown a desire and intention to challenge his termination.

[24] For all the reasons stated above and in accordance with the obiter in Hambridge, I am satisfied that the Applicant’s circumstances were out of the ordinary course, unusual and uncommon.

[25] The Applicant is granted an extension of time until 24 November 2017 to lodge his general protections application.

[26] I so Order.

COMMISSIONER

 1 [2011] 203 IR 1

2 [2017] FWCFB 2811

3 Ibid at [41]

 4   Print P3168, 22 July 1197 per Ross VP, Watson SDP and Gay C

 5   Ibid

 6   Print T2421

 7   Ibid at [14]

 8   [2017] FWCFB 2811 at [41]

Printed by authority of the Commonwealth Government Printer

<PR599554>