Coetzee v Tetra Pak Marketing Pty Ltd

[2016] FWC 1132

[2016] FWC 1132

DECISION

Fair Work Act 2009

s.365—General protections

Johann Coetzee

v

Tetra Pak Marketing Pty Ltd T/A Tetra Pak Marketing Oceania

(C2015/6219)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 19 FEBRUARY 2016

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 Johann Coetzee (the Applicant) made an application which was received by the

Fair Work Commission (the Commission) on 25 September 2015 under s.365 of the Fair

Work Act 2009 (the Act) alleging that he had been dismissed by Tetra Pak Marketing Pty Ltd

T/A Tetra Pak Marketing Oceania (Tetra Pak – the Respondent) on 26 June 2015 in

contravention of the general protections provisions of the Act. On 2 October 2015, Tetra Pak

in its Form F8A – Employer Response to General Protections Application raised a

jurisdictional objection on the basis that the application had been lodged 70 days outside the

21 day statutory timeframe specified in s.366(1) of the Act.

[2]        The Commission issued Directions on 8 October 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.

[3]        The application was the subject of a telephone hearing on the extension of time issue

on 26 November 2015. At the telephone hearing Mr Coetzee appeared on his own behalf

together with his wife, Mrs Natasha Coetzee, while Mr Gareth Jolly appeared with permission

for Tetra Pak together with Mr Rob McGinty, Tetra Pak’s Head of HR Country Services

Oceania.

[4]        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

[5]        Mr Coetzee commenced employment with Tetra Pak on 28 October 2013 as Field

Service Engineer based in Leongatha (Victoria). Mr Coetzee had previously been employed in

South Africa by the Tetra Pak Group from October 2007 until September 2013.
[2016] FWC 1132

[6]        In its written submissions, Tetra Pak provided a brief background to the matter. That

outline included the following:

 Tetra Pak unsuccessfully sought to place Mr Coetzee on a performance improvement

plan in July/August 2014 and May 2015 as a result of concerns it had regarding

Mr Coetzee’s performance and conduct;

 on both occasions Mr Coetzee refused to participate in the plan;

 on 23 June 2015 Tetra Pak issued a show cause letter to Mr Coetzee indicating it had

formed a preliminary view that the employment relationship had broken down and

inviting him to respond;

 Mr Coetzee’s employment was terminated on 26 June 2015;

 apart from a meeting on 29 June 2015 during which Mr Coetzee returned some of

Tetra Pak’s property, there was no contact between Mr Coetzee and Tetra Pak in the

21 days following his dismissal; and

 in August 2015 following contact from Mr Coetzee, Tetra Pak made a without

prejudice offer to him to resolve the matter, with that offer ultimately not accepted.

[7]        In his application Mr Coetzee stated that his employment contract never stated that he

was a shift worker and that his numerous official complaints were never addressed by Tetra

Pak. Mr Coetzee further stated that Tetra Pak’s answer to everything was to place him on a

performance management plan. Mr Coetzee also contended in his application that Tetra Pak

had contravened each of the Act’s general protections provisions.

[8]        As noted above, Mr Coetzee’s application was received by the Commission on

25 September 2015, 70 days outside the statutory timeframe specified in s.366(1)(a) of the

Act.

The Relevant Legislation

[9]        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.”

[2016] FWC 1132

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

[10]      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

[11]      Mr Coetzee submitted that his dismissal was unexpected and that as a result he was

forced to immediately pack up and sell household belongings as he could no longer afford the

leased accommodation his family was staying in. Mr Coetzee further submitted that for the

first month he and his family were without any real communications services until Centrelink

stepped in and provided Special Benefit payments to help him get back into more permanent

accommodation. At the hearing Mr Coetzee reiterated many of the above points and also

indicated that he had contacted the Commission, among other agencies, in the week after his

dismissal. Mr Coetzee stated that he was advised by the Commission of the 21 day timeframe

for making a general protections application and that he found the situation overwhelming.

[12]      Tetra Pak submitted that Mr Coetzee had failed to provide a credible reason for the

delay in lodging his application, identifying the main reasons cited by Mr Coetzee as financial

difficulties which resulted in Mr Coetzee’s inability to instruct solicitors and the relocation of

his family to Perth. Tetra Pak further submitted that Mr Coetzee had failed to adduce any

objective evidence to support either of these reasons. Beyond that, Tetra Pak highlighted that

it took a further 42 days from 13 August 2015 when Mr Coetzee was in a position to instruct a

solicitor before Mr Coetzee’s application was received by the Commission, with that delay

unexplained by Mr Coetzee.

[13]      The first observation I would make is that it is not uncommon for someone who has

just been dismissed to encounter some level of financial difficulty and shock and distress.

Further, it is not unusual for many persons who have just been dismissed not to be able to

instruct solicitors. Nevertheless, many of these individuals still manage to lodge a general

protections application within the 21 day statutory timeframe. While I do not dismiss the

difficulties encountered by Mr Coetzee and his family, I also have to acknowledge that there

was little if any evidence provided to substantiate Mr Coetzee’s submission in this regard.

From the material before the Commission it appears that the most difficult period was the first

month after Mr Coetzee’s dismissal, i.e. the period until he and his family commenced

receiving Special Benefit payments. However, no reasons beyond those previously mentioned

were relied upon by Mr Coetzee to explain the delay in lodging his application for the period

from one month after his dismissal until 25 September 2015.

[14]      Relevant in this regard is the decision by the Full Bench in Cheval Properties Pty Ltd

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(t/as Penrith Hotel Motel) v Smithers which determined that an employee needs to provide a

credible reason for the whole of the period that the application was delayed. Based on the

material before the Commission, I am not satisfied that Mr Coetzee has provided a credible

reason for the whole period of the delay.

[15]      The above analysis does not support a finding of the existence of exceptional

circumstances.
[2016] FWC 1132

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

[16]      Mr Coetzee submitted that he informed Tetra Pak prior to his dismissal of the severe

impact that his dismissal would have on his family. Mr Coetzee further submitted, among

other things, that he sought to consult with LegalAid Victoria as he was trying to pack up the

house but that his time and resources were limited.

[17]      Tetra Pak submitted, inter alia, that between the date of Mr Coetzee’s dismissal and

1 August 2015 it did not hear from Mr Coetzee.

[18]      Based on the material before the Commission, it appears that Mr Coetzee did not take

any action to dispute his dismissal prior to August 2015 when he was in a position to instruct

a solicitor. This does not point to the existence of exceptional circumstances.

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

[19]      Mr Coetzee did not directly address this consideration, submitting instead that Tetra

Pak had the financial means and resources to consult legal counsel regarding this case.

[20]      Tetra Pak submitted that it may be prejudiced were Mr Coetzee’s application allowed

to proceed as it had already employed a new employee to carry out the position formerly

occupied by Mr Coetzee, adding that this coupled with the length of the delay gives rise to

prejudice. Tetra Pak further submitted that this consideration is at best a neutral consideration.

[21]      In the circumstances, I consider the issue of prejudice to be a neutral consideration.

(d) The merits of the application

[22]      In his application Mr Coetzee cited a number of actions by Tetra Pak which led him to

make his application. Those actions included:

 breach of his employment contract and its negotiated terms;

 his unfair and harsh dismissal and Tetra Pak’s abandonment as a sponsoring

employer;

 bullying by his superiors and manages;

 duress and other tactics to have Mr Coetzee work shifts; and

 his inability to secure work easily.

[23]      Tetra Pak contended that Mr Coetzee’s application did not disclose any cause of action

under Part 3-1 of the Act.

[24]      I would firstly observe that the actions cited by Mr Coetzee as underpinning his

application do not point to any obvious contravention of the general protections provisions of

the Act. Further, Tetra Pak provided the Commission with a range of material to substantiate

its claim that Mr Coetzee was dismissed as a result of his performance. For instance, the

termination letter issued to Mr Coetzee read as follows:

“We refer to our preliminary view letter of 23 June 2015.

[2016] FWC 1132

You have not provided any additional information for Tetra Pak to consider regarding

our concerns about your performance.

Accordingly, we are writing to advise you that Tetra Pak has decided to terminate your

employment with effect from close of business today because of its serious concerns

about your ongoing for performance and conduct.

The matters on which Tetra Pak has relied in coming to this decision are as follows:

 Tetra Pak has been raising concerns with you about your performance since soon

after you commenced work in Australia in October 2013. Tetra Pak’s concerns

related to your technical ability, your refusal to comply with instructions and your

manner with clients.

 These concerns were reinforced by complaints during early 2014 from Tetra Pak’s

customers about your performance and approach. In fact, a customer refused to pay

for your services because of its performance concerns. These complaints were

discussed with you at the time and you were advised that you were not performing to

the standard required for your position.

 In mid 2014, Tetra Pak met with you on a number of occasions to discuss your

performance and in July 2014, commenced formal performance counselling in an

attempt to improve your performance.

 In early 2015, Tetra Pak raised significant concerns with you about your refusal to

comply with lawful and reasonable directions by your managers.

 In May 2015, Tetra Pak advised that it was intending to place you on a performance

improvement plan, which included some important performance goals. However,

you simply refused to participate in the process. When you were given a copy of the

performance improvement plan, you refused to sign it and refused to discuss your

performance with myself or your managers.

 Tetra Pak explained to you at the time that it was very important to formally address

these issues, as your performance had been well below the required standard for

some time – and that this could not continue.

 Tetra Pak has attempted to work with you over the past 20 months to achieve an

improvement in your performance. However, you have continually refused to

acknowledge or accept that Tetra Pak has any legitimate cause for concern – or even

2

to cooperate with us. This is completely unacceptable.”

[25]      In the absence of any evidence which raises doubts as to the veracity of Tetra Pak’s

concerns regarding Mr Coetzee’s performance, I consider the merits of Mr Coetzee’s

application to be poor.

[26]      As such, the merits of the application do not support the existence of exceptional

circumstances.
[2016] FWC 1132

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

[27]      Mr Coetzee submitted that the situation was and remained unfair, pointing in

particular to Tetra Pak’s legal representation in this matter. These points do not really go to

the substance of this consideration.

[28]      Tetra Pak submitted that Mr Coetzee had failed to raise any points relevant to this

consideration.

[29]      Against that background, I consider this factor to be a neutral consideration.

Conclusion

[30]      The question of exceptional circumstances was dealt with in 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.”

[31]      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).

[32] Accordingly, the application will be dismissed. An order to that effect will be issued
[2016] FWC 1132

Hearing details:

2015.

Canberra (Telephone Hearing):

November 26

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1

(2010) 197 IR 403 at 408-409

2

Affidavit of Robert Michael McGinty at Annexure D

with this decision.

Appearances:

J. Coetzee with N. Coetzee for the Applicant.

G. Jolly with R. McGinty for the Respondent.