Colin Potter v Central Queensland University

[2016] FWC 777

[2016] FWC 777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Colin Potter
v
Central Queensland University
(C2015/7085)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 5 FEBRUARY 2016

Application to deal with contraventions involving dismissal.

[1] On 28 October 2015, Mr Colin Potter (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Central Queensland University (the Respondent).

[2] The Applicant commenced employment with the Respondent on 10 June 2015. He was employed on a temporary contract to fill the position of Senior Librarian at the Respondent’s Noosa campus. The contract was due to end on 22 March 2016. He says that he was dismissed on 2 September 2015 and the dismissal took effect on that day. The application was therefore lodged some 35 days out of time.

Alleged Contravention

[3] The Applicant submits that he was effectively dismissed during a meeting on 2 September 2015 in which accusations relating to his conduct were made. He wrote out a resignation letter but says that this was a constructive dismissal. He received four weeks’ pay in lieu of notice.

[4] The Applicant’s representative then had correspondence with the Respondent seeking to discuss the dispute about the Applicant’s alleged dismissal pursuant to the dispute settlement clause in the relevant enterprise agreement, the Central Queensland University Enterprise Agreement 2012 [AE899523] (the EBA). The Respondent refused to meet or to discuss the issue on the grounds that the Applicant had resigned.

[5] The Applicant submits that he had a right under the EBA to two performance reviews (as a result of which he would be given an opportunity to remedy any deficiencies) which were denied him. The Respondent further sought to deny him his rights under the Dispute Settlement clause. A breach of s.340 is alleged.

Respondent’s Submissions

[6] The Respondent says that two performance review meetings were carried out. It did intend to terminate the Applicant during his probation for reasons relating to his conduct which had been brought to his attention. The Applicant decided, voluntarily, to take the option of a resignation with four weeks’ pay in lieu of notice.

[7] The Applicant’s representative did not seek to raise a dispute under the EBA until 14 October 2015, six weeks after the Applicant ceased employment. The Respondent took the view that there was no jurisdiction to lodge a dispute under the clause.

[8] The Respondent denies any breach of the General Protections provisions of the Act .

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.”

Approach of the Commission

[10] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[11] On 6 November 2015, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 4 December 2015. There was a delay in the lodging of submissions in accordance with directions issued and that hearing was cancelled. The hearing before me took place on 18 January 2016.

[12] The Applicant was represented by Mr K. Bond, his appointed representative. The Respondent was represented by Mr P. Raymond of the Australian Higher Education Industrial Association (AHEIA).

Matters to be taken into account pursuant to s.366(2)

[13] 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

[14] The Applicant’s essential explanation for the 35 day delay in lodging the application was that he was seeking to discuss the matter with the Respondent, pursuant to the Dispute Settlement clause under the EBA.

[15] That clause has some timelines for the stages of the dispute settlement process. It then provides, in clause 11.4, that “unresolved disputes should be referred to FWA within 20 working days” of the completion of the internal process.

[16] The Applicant argues that this timeline prevented it from filing its application in time. It filed, it submits, nine working days after the internal dispute resolution process concluded when the Respondent notified the Applicant that it would not meet.

[17] I reject this argument. It seems to me that the Respondent was correct to assert that the Dispute Settlement clause was not applicable because the Applicant’s employment had ceased. In any event, the timeline in the clause is not mandatory. The more fundamental point is that s.366 of the Act sets out the applicable provisions for the lodging of a General Protections application. It is those provisions which determine this matter, irrespective of the application or contents of any enterprise agreement.

[18] No other grounds are provided by the Applicant to justify the substantial lateness of the application. Accordingly, the reasons for delay provided by the Applicant do not establish exceptional circumstances.

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

[19] The Applicant had been seeking discussions with the Respondent in a pretty desultory manner. I therefore accept that the Applicant had taken action to dispute the dismissal. In the circumstances, however, this factor is of little weight.

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

[20] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) The merits of the application

[21] The first hurdle the Applicant would need to get over is to establish that his resignation was a constructive dismissal. It seems to me that this would be difficult.

[22] Furthermore, it is not clear that the Applicant was seeking to exercise a workplace right. He was in his probation period and had two probation review meetings, on 29 June 2015 and 2 September 2015, contrary to his assertion. The fact they did not lead to the result that he desired is not to the point. The Respondent had a right to discipline any employee and it was dealing with some quite serious allegations against the Applicant.

[23] The Respondent says that it took action because of the issues relating to the Applicant’s conduct. On the material before the Commission it is difficult to disagree with this conclusion.

[24] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

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

[25] I do not believe that this is a relevant factor.

Conclusion and Order

[26] Having considered all of the factors set out in s.366(2), 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). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Colin Potter. under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

K. Bond, for the Applicant;

P. Raymond, (AHEIA) for the Respondent.

Hearing details:

2016

January 18 (By Telephone).

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