Branden Gorman v Statewide Alignments Pty Ltd

[2019] FWC 1918

[2019] FWC 1918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Branden Gorman
v
Statewide Alignments Pty Ltd
(C2018/7139)

DEPUTY PRESIDENT COLMAN MELBOURNE, 24 APRIL 2019

Application to deal with a general protections dispute involving dismissal – extension of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Mr Branden Gorman under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366 requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2).

[2] Mr Gorman was employed by Statewide Alignments Pty Ltd (Statewide Alignments) for one week, during which he worked for two days. He was dismissed on 20 November 2018. His application under s 365, although dated 11 December 2018, was not lodged in the Commission until 17 December 2018. The period of 21 days ended at midnight on 11 December 2018, and his application was therefore lodged 6 days out of time. He asks the Commission to allow a further period for the application to be made. Statewide Alignments opposes the grant of an extension of time.

[3] On 17 January 2019, I issued directions for the parties to file outlines of submissions and any witness statement or other documents they sought to rely on prior to the hearing of Mr Gorman’s application for an extension of time, which was listed for 22 March 2019. No materials were filed. On 19 March 2019, my associate wrote to the parties confirming that the telephone hearing listed for 22 March 2018 would proceed and that if the parties did not participate I proposed to determine the matter on the basis of the material before the Commission.

[4] At the commencement of the proceeding on 22 March 2019 my associate was unable to contact Mr Gorman. My associate then wrote to Mr Gorman, seeking any explanation of why he had failed to participate in the proceedings, and stating that if no answer was received by close of business on 26 March 2019, the Commission would determine the matter on the papers.

[5] On 23 March 2019, Mr Gorman sent an email message to my chambers apologising for not attending the hearing, and stating that he had been sick, had lost his phone, and had been in and out of hospital and on medication. He later spoke with my associate and said that he wished to be heard and that he would participate in a telephone hearing if the matter were rescheduled. I then listed the matter for the following Friday, 29 March 2019.

[6] On the morning of 29 March 2019 my associate sent the parties a message reminding them of the telephone hearing and stating that I would determine the matter following the conclusion of the hearing, based on the material before the Commission. Mr Gorman participated in the proceeding. However the company’s representative, Mr Lyndon Stevens, could not be contacted. I proceeded to hear from Mr Gorman as to why he said the Commission should extend the 21 day period. Some days later, Mr Stevens indicated that he wished to make submissions, but none were received by the due date.

Consideration

[7] The Act allows the Commission to extend the period within which an application under s 365 must be made only if it is satisfied that there are ‘exceptional circumstances’. This establishes a high hurdle for an applicant. 1

[8] The meaning of ‘exceptional circumstances’ was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty), 2 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also stated that 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 can be considered exceptional.3

[9] In order for Mr Gorman’s general protections application to proceed, it is necessary for him to obtain an extension of time under s 366(2) to make the application. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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 similar position.

Reason for the delay

[10] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable 4 or a reasonable explanation.5 In Stogiannidisv Victorian Frozen Foods Distributors Pty Ltd aFull Bench of the Commission noted that the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.6 The period of the delay is the period commencing immediately after the time for lodging an application expired, and ending on the day the application was lodged. However, the circumstances from the date on which the dismissal took effect can be considered in assessing the explanation for the delay.

[11] Mr Gorman’s application was dated 11 December 2018. Had he lodged the application on that day, there would have been no delay. But he did not do so. In oral submissions Mr Gorman said that he posted the application on the last day of the 21 day period, and that it was not his fault that it takes Australia Post several days to deliver the mail. He also said that during the 21 day period following his dismissal he was busy preparing a workers’ compensation claim. He said that he only became aware of the possibility of making a general protections claim in the Commission later in the 21 day period, and that he then promptly prepared the application with assistance from his wife. He also said that he was suffering from a workplace injury at this time and that in addition to this, his wife was pregnant, and he had to move house.

[12] In my view, Mr Gorman has not established an acceptable or reasonable explanation for the delay in lodging his general protections application. The Fair Work Commission rules allow a document to be lodged with the Commission by sending it by post to an office of the Commission. But the document is not lodged until it is received by the Commission. If the delivery of the mail is affected by delay, this might be relevant to the consideration of whether there are exceptional circumstances. But there is no evidence of a postal delay in this case. Mr Gorman posted the document on the last day in the 21 day period, when it could not possibly arrive on time. If Mr Gorman wanted to lodge the document by post (various other modes of lodgement are possible under the Commission’s rules, including email) he needed to post it earlier so that it would arrive on time.

[13] I appreciate that Mr Gorman was experiencing difficult personal circumstances during the 21 day period however I do not consider these to be an acceptable or reasonable explanation for the delay in lodging his application. I note that Mr Gorman was suffering from an injury however he has not explained how his injury affected his ability to lodge his application within the 21 day period, particularly as his wife was evidently able to assist him.

[14] The absence of an acceptable or reasonable explanation for the delay in lodging the application weighs against Mr Gorman’s request for an extension of time.

Action taken to dispute the dismissal

[15] Mr Gorman said that he told company management that he intended to challenge the termination of his employment. I believe this, and accept that Mr Gorman therefore took steps to contest his dismissal, aside from filing his application. This consideration weighs in favour of an extension of time.

Prejudice to the employer

[16] I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. Some decisions of the Commission view the absence of prejudice to the employer as a factor weighing in favour of granting an extension of time. In my view, in this case at least, it is a neutral factor. However, if the absence of prejudice should properly be treated as telling in favour of an extension of time, I would attribute it little weight in the consideration of whether there are exceptional circumstances in the present case.

Merits of the application

[17] Mr Gorman’s application claims that Statewide Alignments contravened sections 344, 346, 351 and 352 of the Act. The alleged contraventions of sections 344 and 346 appear to be without any foundation. Section 344 concerns undue influence or pressure exerted on an employee in relation to a decision to make or not make certain agreements under the Act; and section 346 concerns adverse action that occurs because of a person’s industrial association or activity. I do not see how these sections are engaged in the present case.

[18] The contention that the company contravened section 351 (discriminating against a person because a disability etc.) appears to be at least arguable. Mr Gorman’s application submitted that he was not able to lift truck tyres that could weigh between 50 and 100 kilograms, and that this inability, or disability, was the attribute by reference to which he was discriminated. He also stated that he sustained a workplace injury during his week of employment and suggested that this may have been a reason for his dismissal. However, these allegations have not been explained in any detail and there is no evidence as to what were the inherent physical requirements of Mr Gorman’s position.

[19] As to whether the company contravened s 352 (dismissing a person because of a temporary absence from work due to illness or injury of a kind prescribed by the regulations), it is not entirely clear how Mr Gorman’s dismissal is said to be one that falls within the regulations. As I understand it, Mr Gorman claims to have notified the company of his injury, but it is not apparent whether he provided a medical certificate or statutory declaration as contemplated by Reg 3.01, or how his circumstances might otherwise fall within the regulations.

[20] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. Although some elements of the application appear baseless, others are plausible and there is insufficient material before me to make any detailed assessment of their strength. Further, the applicant is unrepresented and might be able to develop his contentions with the assistance of counsel, were the matter to proceed. Accordingly, I am prepared to consider the merits of the application as a whole to be a neutral factor in the present case.

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

[21] I am not aware of any circumstances that are relevant for the purposes of examining the question of fairness as between Mr Gorman and other persons who might be considered to be in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[22] The time limit that applies to the exercise of a person’s right to bring an application under s 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[23] Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. Aside from Mr Gorman having taken steps to contest the dismissal, none of the factors in s 366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[24] I decline to grant an extension of time under s 366(2). Accordingly, Mr Gorman’s application under s 365 of the Act is dismissed.

DEPUTY PRESIDENT

Hearing details:

2019

Melbourne

29 March (by telephone to Adelaide)

Printed by authority of the Commonwealth Government Printer

< PR706143 >

 1   Stogiannidis v Victorian Frozen Foods DistributorsPty Ltd[2018] FWCFB 901 at [14]

 2   [2011] FWAFB 975

 3   At [13]

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 5   Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP, at [16]

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]