Cirano De Maria v A.N.T Building Pty Ltd T/A A.N.T Building Pty Ltd
[2018] FWC 7291
•30 NOVEMBER 2018
| [2018] FWC 7291 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Cirano De Maria
v
A.N.T. Building Pty Ltd T/A A.N.T. Building Pty Ltd
(C2018/5783)
DEPUTY PRESIDENT MASSON | MELBOURNE, 30 NOVEMBER 2018 |
Application to deal with contraventions involving dismissal – extension of time sought – exceptional circumstances not established – application dismissed.
Introduction
[1] Mr Cirano De Maria (the Applicant) commenced employment on 16 October 2017 with A.N.T Building Pty Ltd T/A (the Respondent) as a Truck Driver and General Construction Worker. He claims that he was dismissed by the Respondent on 19 September 2018.
[2] The Applicant alleges that the termination of his employment by the Respondent was in breach of general protections provisions. A completed Form F8 – General protections application involving dismissal (the Application) was filed by the Applicant with the Fair Work Commission (Commission) on 15 October 2018. The Applicant contends in his application that the Respondent engaged in adverse action against the Applicant in breach of s 344 and s 352 of the Fair Work Act 2009 (the Act).
[3] The Application was not made within 21 days after the dismissal took effect on 19 September 2018, as required under s 366(1)(a) of the Act. The Respondent objected to the Application on the grounds that the application had not been made within 21 days of the dismissal taking effect.
[4] Determination of the extension of time application was set down for a telephone Hearing before me on 29 November 2018. The Applicant appeared and gave evidence on his own behalf while the Respondent was represented by Mr Anthony Gleeson, Director of the Respondent, who also gave evidence.
Background
[5] The Applicant commenced employment with the Respondent on 16 October 2017 in the position of Truck Driver and General Construction Worker. 1 The letter of employment relevantly stated the following:
“A.N.T. Building Pty Ltd may alter your position and/or responsibilities in accordance with the needs of A.N.T. Building Pty Ltd and with agreement between yourself. You agree that the terms of this agreement continue to apply unless varied in writing.”
[6] In December 2017, the Applicant was involved in a motor vehicle accident and suffered injuries to his wrist. He underwent surgery during 2018 and was off work as a result of the injury from June 2018 up to the date of the termination of his employment.
[7] On 15 August 2018 the Respondent wrote to the Applicant and advised that as a result of changes to the Respondent’s structure and workload, the Applicant’s position of Truck Driver/General Construction Worker “is temporarily not required”. The Respondent went on to state that:
“……….
Accordingly, as per your employment contract we (A.N.T. Building Pty Ltd) can alter your position and/or responsibilities in accordance with the company’s needs and with agreement between yourself and A.N.T. Building Pty Ltd.
On your return to work we can accommodate your ongoing employment with A.N.T. Building Pty Ltd as a General Construction Worker (labourer). On your return, you will be advised as to which site you will be working on.
………”
[8] On 22 August 2018, the Respondent wrote to the Applicant confirming verbal communication between the parties in which the Applicant had rejected the alternate role. The Respondent requested that the Applicant clarify his intentions within seven days. 2
[9] On 30 August 2018, the Applicant responded to the letter of 30 August 2018. The Applicant confirmed his rejection of the alternate role that had been offered and reaffirmed his intention to return to his original position subject to medical clearance. 3
[10] On 4 September 2018 the Respondent wrote to the Applicant and stated as follows:
“……….
A.N.T. Building Pty Ltd are advising you that your position is to change. If you do not accept the change of position then I suggest you tender your resignation.
Alternatively your refusal to accept the direction will be deemed a refusal of duty.”
[11] On 12 September 2018, the Applicant wrote to the Respondent and included in that correspondence conditional acceptance of the proposed change in role. The Applicant relevantly stated:
“Dear Anthony
I refer to your recent correspondence regarding the temporary change in my employment role. On reflection and after seeking the appropriate professional advice and guidance, I would be prepared to accept your proposal change of role on a condition that it is strictly temporary until my doctor certify me as fit for my original position.
……….” 4
[12] On 19 September 2018, the Respondent wrote to the Applicant in the following terms:
“Dear Cirano
Thank you for your correspondence of 12th September 2018 and the acknowledgement and acceptance of your position of employment change with A.N.T. Building Pty Ltd. It is however not conditional on what you desire or what suits you.
A.N.T. Building Pty Ltd does not have a role for a full-time truck driver at present. We cannot define if and when that may change on your return. You will be employed as a full-time labourer until further notice.
………”
Legislative scheme
[13] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:
(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).
[14] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission, in concluding whether exceptional circumstances exist, must take into account the following factors:
(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
(a) prejudice to the employer (including prejudice caused by the delay); and
(b) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[15] It is clear from the statutory provisions that the Commission can extend the time for the lodging of an application under s 365 of the Act if it is satisfied that there are exceptional circumstances under s 366(2) of the Act. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s 366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[16] In considering an application for an extension of time, the Commission must have regard to and weigh each of the considerations set out in s 366(2) of the Act in determining whether exceptional circumstances exist to warrant an exercise of the discretion to extend time in which to make application. The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 5 where the Full Bench said:
“[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.” [Endnotes not reproduced]
[17] The Full Bench of the Commission affirmed in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters6 that the conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each. Further, the Full Bench clarified that with respect to s 366(2)(a) of the Act, a credible explanation for the entirety of the delay is not a precondition for the granting of an extension of time. The Full Bench held as follows:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
[41] The ‘reason for the delay’ is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.” (footnote omitted).”
[18] In deciding whether to allow a further period for the Application to be made, I must take into account the matters set out in s 366(2) above. I will now deal with each of those matters.
Consideration
Date of termination of employment
[19] The Applicant claims that he was dismissed by the Respondent on 19 September 2018. The Respondent contests the Applicant’s claim that the termination of employment was at the Respondent’s initiative.
[20] The Respondent stated in correspondence to the Applicant, dated 15 August 2018 and in subsequent correspondence, that the Applicant’s former role of Truck Driver and General Construction Worker was not currently available but that an alternate role of General Construction Worker was proposed. The Respondent requested the Applicant’s agreement to the change in role, consistent with requirement for such agreement as per the terms of the Applicant’s letter of offer. 7
[21] The Applicant was not compelled to accept the change as proposed and persisted with his refusal to accept the alternate role up until his conditional acceptance expressed in his email of 12 September 2018. His conditional acceptance of the role was rejected by the Respondent in its correspondence of 19 September 2018. It could not have been made clearer by the Respondent in that correspondence that the Applicant’s former role of Truck Driver and General Construction Worker no longer existed.
[22] I am satisfied that the failure of the Applicant and the Respondent to reach agreement on the alternate role had the effect of bringing the Applicant’s employment to an end on 19 September 2018. In reaching this conclusion, it has been unnecessary for the purposes of the extension of time application to determine whether the termination was at the initiative of the Respondent.
Section 366(2)(a): the reason for the delay
[23] One of the matters that must be considered and weighed is whether an acceptable reason for the delay in making the Application exists.8
[24] The Application was filed on 15 October 2018 which is 26 days after the Applicant’s termination of employment or five days beyond the 21 day statutory period required by s 366(1)(a) of the Act.
[25] The delay required to be considered is the period beyond the prescribed 21 day period for lodging 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
[26] The Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic10:
“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.”
[27] The Applicant states that he sought legal advice from a community legal centre within two days of the termination of employment on 19 September 2018. He further states that he also contacted the Fair Work Commission within a week of the termination of employment to obtain information and forms. He states that he was unable to afford private legal representation due to cost.
[28] The Applicant also states that it took him some time to understand what was required in terms of the application process. He also referred to his medical condition and the medical treatments and therapy sessions he was undergoing during the period immediately following the termination of his employment.
[29] I am satisfied on the evidence that following the termination of his employment on 19 September 2018, the Applicant sought legal advice and then contacted the Commission for information within a week of the termination of his employment. While generally referring to the time it took him to understand what was required, no reasonable explanation was provided by the Applicant as to why, having made prompt inquiries with the Commission and obtained initial legal advice, it then took the Applicant a further three weeks to file his general protections Application.
[30] Furthermore, there was no evidence adduced in relation to the nature of or severity of the Applicant’s medical condition and incidence of treatment sessions that supported his assertion that his medical condition impacted on his ability to prepare and file his Application.
[31] The fact that the Applicant may have been unfamiliar with or uncertain about the formal application processes is not unusual, out of the ordinary or uncommon. Nor is it unusual or out of the ordinary for applicants to be unable to meet the financial costs of obtaining private legal representation.
[32] I am not satisfied that the Applicant has provided a reasonable explanation for the period of delay in lodging his Application. This weighs against a finding that there are exceptional circumstances.
Section 366(2)(b): any action taken by the person to dispute the dismissal
[33] Action taken by the employee to contest the dismissal, other than lodging an application for general protections relief, may favour granting an extension of time.11
[34] The Applicant took no action to contest the dismissal, other than lodging his Application. In the circumstances, I regard this as a neutral consideration.
Section 366(2)(c): prejudice to the employer (including prejudice caused by the delay)
[35] Prejudice to the employer will weigh against granting an extension of time.12 The Respondent did not contend that it would suffer any prejudice.
[36] Given the circumstances, I am satisfied that the Respondent will not suffer prejudice that is out of the ordinary in circumstances of a contested general protections dismissal claim for which the Application has been made. It is a neutral consideration.
Section 394(3)(e) the merits of the application
[37] When 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 Kornicki v Telstra-Network Technology Group13, it said:
“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.”
[38] As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”14 for the purpose of determining whether to grant an extension of time to the Applicant to make his Application. I have adopted this reasoning.
[39] In his Application, the Applicant claimed that the Respondent’s action in dismissing him was in breach of section 351(2) of the Act which relevantly provides as follows:
“Temporary absence – illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
[40] The Applicant further identified in his Application that the Respondent contravened s. 344 of the Act which relevantly states:
“344 Undue influence or pressure
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a) make, or not make, an agreement or arrangement under the National Employment Standards; or
(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(a) agree to, or terminate, an individual flexibility arrangement; or
(c) accept a guarantee of annual earnings; or
(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.”
[41] The Applicant’s key contention was that the Respondent dismissed him for reasons of his wrist injury which had kept him off work from June 2018 up until the date of his termination of employment on 19 September 2018.
[42] The Respondent rejected the Applicant’s evidence that the termination of employment was at the initiative of the employer and/or due to his temporary injury. The Respondent referred to the offer of an alternate role of General Construction Worker that was detailed in the various correspondence to the Applicant during August and September 2018.
[43] No evidence was adduced, nor were submissions made by the Applicant that supported his claim that his dismissal was for a prohibited reason pursuant to s 344 of the Act. Nor was there any evidence that the Applicant had pursued a workplace right during his period of employment that would otherwise potentially enliven s 340 of the Act. Rather, the Applicant’s central complaint was that his dismissal was due to his medical condition. That allegation is however significantly undermined by the Respondent’s offer of an alternate role of a General Construction Worker, which the Applicant was unwilling to accept on an unconditional basis.
[44] It is unarguable that the Applicant has suffered adverse action as a result of the termination of his employment. That is insufficient, however, to found a basis for a general protections claim on its own. The Applicant must also be able to point to the alleged discrimination or workplace right that was exercised. While elements of a contravention have been asserted by the Applicant, I am not persuaded on the limited material before me that a strong case has been made out. In reaching this view, I have had particular regard to the alternate role offered by the Respondent to the Applicant. In these circumstances, I regard the question of the merits of the Application to be a neutral consideration.
Section 394(3)(f): fairness as between the person and other persons in a similar position.
[45] No submissions were made by either party on this issue and on that basis I consider this factor to be a neutral consideration.
Conclusion
[46] Having taken into account the matters specified at s 366(a) to (e) of the Act, insofar as they are relevant in the circumstances, I am not satisfied that there are exceptional circumstances that warrant an exercise of my discretion to allow a further period of time for the substantive Application to be made.
[47] The application for an extension of time is refused. The Application is dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR702727>
1 Exhibit R1, Letter of offer of employment, dated 12 October 2017.
2 Exhibit R2, Letter from Respondent to Applicant, dated 22 August 2018.
3 Exhibit A3, Email from Applicant to Respondent, dated 30 August 2018.
4 Exhibit A4, Email from Applicant to Respondent, dated 12 September 2018.
5 (2011) 203 IR 1.
6 [2018] FWCFB 901.
7 Exhibit R1.
8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
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].
10Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].
11 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
12 Ibid.
13 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
14 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
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