Billy Williams-Noonan v Griffith University

[2015] FWCFB 6796

[2015] FWC 6502 [Note: An appeal pursuant to s.604 (C2015/6796) was lodged against this decision - refer to Full Bench decision dated 6 November 2015 [[2015] FWCFB 6796] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Billy Williams-Noonan
v
Griffith University
(C2015/792)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 18 SEPTEMBER 2015

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Billy Williams-Noonan (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 15 April 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Griffith University (the Respondent) on 20 June 2014 in contravention of the general protections provisions of the Act. As the application had been lodged 245 days outside the statutory timeframe for lodgement, the Commission issued Directions on 21 April 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The Directions issued invited both parties to indicate if they wished to be heard on the extension of time issue and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the Directions. Neither party requested to be heard

[3] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[4] The Applicant commenced employment with the Respondent on 24 March 2014 on a fixed term contract with an end date of 23 March 2015. The Applicant was engaged by the Respondent as a Research Assistant working in a full time capacity at the Eskitis Institute for Drug Discovery. The Applicant’s contract of employment provided for a three month probationary period.

[5] In early June 2014 the Applicant raised a complaint with Professor Quinn, the Director of the Eskitis Institute for Drug Discovery, alleging that he had been bullied and harassed by his immediate supervisor, Dr Hoan Vu. As a result, Professor Quinn asked the Applicant to provide journal notes of his interactions with Dr Vu and agreed to arrange a mediator.

[6] On the 16 June 2014 the Applicant sent an email to Dr Quinn saying “In reference to what we talked about Thursday morning two weeks ago … Hoan has gotten a lot better since last fortnight. Since the improvement I do not feel as threatened at work as I did, so I am not sure the mediation is necessary. All the same, I was wondering if you still wanted to see the typed document. If you feel it necessary or would like to see it, I can give it to you tomorrow.” Professor Quinn responded later that day that he would like to see the typed document, with the document forwarded to him by the Applicant on 17 June 2014. The covering email from the Applicant forwarding the typed document stated among other things “I have attached a quickly typed up form of the notebook that I have started to keep and attached it here … Like I said, Hoan has begun to treat me a lot better than he did, possibly because not much has gone wrong in the past two weeks as he hasn’t gotten frustrated with me, or possibly because were learning to work with each other better, or maybe both. But he has improved and he does seem to be treating me in a much less threatening manner.” 1 In the light of the Applicant’s emails the proposed mediation did not proceed.

[7] The Applicant was dismissed on 20 June 2014 “due to unsatisfactory work performance” during his probationary period.

[8] In subsequent developments, on 2 July 2014 the Applicant appointed his father to act as his representative. What ensued over the period 3 to 11 July 2014 was an exchange of correspondence and emails between the Applicant’s representative and the Respondent. In that exchange the Applicant’s representative disputed that the Applicant’s work performance was unsatisfactory and expressed concern that the Applicant had been subjected to regular bullying and harassment by Dr Vu. Further, the Applicant’s representative sought discussions with the Respondent in an effort to resolve the situation.

[9] On 9 July 2014 Ms Glenda Graham, a Human Resources Manager with the Respondent’s Office of Human Resource Management, emailed the Applicant’s representative and advised among other things that “as far as the University is concerned this matter is closed and we will not be entering into any further discussion with you as there is nothing to resolve. Should you wish to pursue this matter in an outside tribunal then that is your right, as it is the University’s right to defend its decision in such tribunals.” 2

[10] On 28 November 2014 a letter was sent to the Respondent by the Applicant’s then legal representative. Among other things that letter foreshadowed an application for an extension of time to file a general protections claim alleging that the Respondent had breached s.340 of the Act. The letter also proposed a basis on which the matter could be amicably resolved without the need for such an application. The Respondent did not respond to that letter.

[11] On the 2 March 2015 the Applicant emailed Professor Quinn stating that he remained unhappy with the way he was treated and the way that the matter was handled. While the Applicant acknowledged that he had the option of pursuing the matter in court he also indicated that he did not wish to do this as all he wanted was an apology and a guarantee that his experience would not happen again. The Applicant requested an opportunity to meet with Professor Quinn to discuss the matter. Professor Quinn replied the following day declining the invitation to meet and stating that “I consider the matter to be closed.” 3

[12] As previously noted, the Applicant’s general protections application was received by the Commission on 15 April 2015, 245 days outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act.

The Relevant Legislation

[13] Section 366 of the Act provides:

“366 Time for application

366(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).

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.”

Whether to allow a further period for the application to be made

[14] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[15] The Applicant cited two factors as the reason for the delay in lodging his application. The first factor was representative delay and the second was his representative’s “severe illness” which “was the sole reason that the application was not lodged within the standard time limit” 4. As to the first factor, the Applicant submitted that his representative was unaware of the 21 day statutory timeframe.5 As to the second factor, further details were provided regarding the nature of the Applicant’s representative’s illness6 together with a letter from the representative’s doctor stating that “In the period between February and September 2014 he was in marked physical and emotional stress.”7

[16] Attached to the Applicant’s submissions in reply were copies of a series of further text message exchanges between the Applicant and his representative. Those text messages span the period 17 August 2014 until early December 2014. Key aspects of those text messages are that on 20 September 2014 the Applicant sent his representative a message which read in part “Very shortly I’m going to book tickets to come and visit you in Hobart and collect the Fair Work documents…” and on 5 November 2014 the Applicant sent a further message which stated “Just saw a lawyer. I don’t have a case under unfair dismissal but I do have a case under the general protections act if the application was submitted within 21 days of dismissal. Was it?” 8

[17] The Respondent submitted that representative error was not an acceptable reason for the delay in this case based on the conduct of the Applicant. To that end, the Respondent highlighted the lack of any evidence of follow up action by Applicant’s following the text messages he sent to his representative on 11 July 2014 asking to see “the form for a claim with Fair Work and a receipt of its lodgement” and on 8 August 2014 expressing concern that his application had not been lodged. 9 The Respondent also referred to subsequent correspondence from the Applicant’s then legal representative in November 2015 and the Applicant’s email of 2 March 2015 to Professor Quinn in which he stated “I have the option of pursuing this matter in court…”10 to reinforce its submission regarding the lack of follow up action by the Applicant.

[18] With regard to the issue of representative error, as noted by a Full Bench in Robinson v Interstate Transport Pty Ltd (Robinson)  11the approach to representative error as an explanation for late lodgement was first set out in Clark v Ringwood Private Hospital (Clark)12in the context of a discretion to extend under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act) followed by a Full Bench decision in Davidson v Aboriginal & Islander Child Care Agency (Davidson).13

[19] The approach in Clark was summarised in Davidson as follows:

“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.” 14

[20] Based on the material before the Commission it is apparent that the Applicant appointed his father to act as his representative on 2 July 2014. However, there is no material which clearly indicates if and when the Applicant instructed his representative to lodge an application with the Commission. Further, the material indicates that in early November 2014 the Applicant sought legal advice regarding his dismissal and that as late as 5 November 2014 he was uncertain as to whether his application had been lodged with the Commission. In circumstances where the Applicant was clearly aware on 5 November 2014 of the 21 day statutory timeframe for lodging a general protections application it is not clear why his application was not received by the Commission until 15 April 2015. Also noteworthy is an email from the Applicant’s legal representative to the Applicant’s father on 12 December 2015 stating “Would you please advise your instructions as to whether Billy wishes to pursue the matter further …” 15. The limited action taken by the Applicant to ascertain the status of the general protections claim with his representative over such an extended period of time does not support a finding of the existence of exceptional circumstances.

[21] As to the second reason relied upon, i.e. the Applicant’s representative’s severe illness, I note the letter from the representative’s treating doctor and the representative’s subsequent statement that he suffered from an ongoing mental illness. However, it is also important to note that the abovementioned letter from the representative’s treating doctor does not indicate the extent to which the representative was incapacitated for the period February to September 2014. With regard to the extent to which the representative was incapacitated, the material before the Commission, in particular the letters and emails which the Applicant’s representative sent to the Respondent over the period 3 and 11 July 2014, suggest that he was not totally incapacitated by his illness during the 21 day statutory timeframe. Further, I note that the treating doctor’s letter states that the Applicant’s representative was affected until September 2014. Given the application was not received by the Commission until 15 April 2015, the representative’s illness cannot be relied upon as a reason for the delay for the period October 2014 to 15 April 2015.

[22] Taken together and drawing on the decision in Clark, the factors relied upon by the Applicant as the reasons for the delay do not support a finding of the existence of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[23] The Applicant submitted that he took many actions to dispute his dismissal within the appropriate timeframe. In support of that submission, the Applicant highlighted the correspondence and emails sent to the Respondent on his behalf in July 2014, his engagement of solicitors in November 2014 in an effort to resolve the dispute directly with the Respondent and his email to Professor Quinn of 2 March 2015.

[24] The Respondent did not dispute that the Applicant took a number of steps during the 21 day statutory timeframe to dispute his dismissal, pointing in particular to the exchange of correspondence and emails in early July from the Applicant’s representative. However, the Respondent also highlighted the subsequent four-month gap until late November when the Applicant’s then legal representative wrote to it and the further three month gap after that until the Applicant wrote to Professor Quinn in early March 2015. Overall, the Respondent submitted that while the Applicant took some action taken to dispute his dismissal, that action was sporadic to say the least.

[25] Based on the material before the Commission it is clear that the Applicant did dispute his dismissal. What is also clear from that material is that on 9 July 2014 via the previously mentioned email from Ms Graham that the Respondent made it clear that from its perspective the matter was closed and that it would not be entering into any further discussions with the Applicant. Significantly, no explanation was provided by the Applicant as to why, in light of Ms Graham’s response, he did not take immediate steps to lodge his application with the Commission.

[26] The above does not support a finding of the existence of exceptional circumstances.

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

[27] The Applicant did not make any submissions on this factor other than noting that the Respondent had not raised any prejudice in its Form F8A response to his application.

[28] The Respondent submitted that it did not see significant prejudice to it as a result of the delay in the application being lodged with the Commission.

[29] In those circumstances, I consider this factor to be a neutral consideration.

(d) The merits of the application

[30] The Applicant submitted that his application has significant merit based. Among other things, the Applicant highlighted that he had lodged a claim of harassment which had not been resolved at the time of his dismissal and also contended that the Respondent’s code of conduct had been breached on numerous occasions in his case.

[31] The Respondent submitted that there was no causal connection between the Applicant’s complaints and the decision to terminate his employment, emphasising that the Applicant’s dismissal occurred during the probationary period and was due to the Applicant’s unsatisfactory performance.

[32] It is not disputed that the dismissal occurred during the probationary period. While I accept that the Respondent had concerns regarding the Applicant’s performance, based on the material before the Commission and in the absence of a substantive hearing of the evidence in this matter I am unable to conclude that the application is without merit. This lends some weight to the existence of exceptional circumstances.

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

[33] The Applicant submitted that as he was the only employee terminated and that there was to the best of his knowledge no other person taking action against the Respondent, he did not consider that his application could be seen as unfair to anyone else.

[34] The Respondent submitted, inter alia, that it has in the past and will continue in the future to enforce probationary periods, properly assess and take appropriate action as required, up to and including termination.

[35] I consider this factor to be a neutral consideration.

Conclusion

[36] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 16(Nulty) in the following way:

“[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.”

[37] Having considered all of the factors set out in s.366(2) and drawing on Nulty, 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).

[38] Accordingly, the application will be dismissed. An order to that effect [PR572101] will be issued with this decision.

 1   Form F8A

 2   Form F8 at Attachment E

 3   Ibid at Attachment F

 4   Applicant’s Outline of Submissions at paragraphs 2 and 3

 5   Ibid at paragraph 2 of Attachment A

 6   Ibid

 7   Ibid at Attachment E

 8   Applicant's Submissions in Reply at Attachment A

 9   Form F8 at Attachment D

 10   Ibid at Attachment F

 11   [2011] FWAFB 2728

 12 (1997) 74 IR 413

 13   Print Q0784

 14   Ibid

 15   Applicant's Submissions in Reply at Attachment D

 16   [2011] FWAFB 975

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