Collin Grixti v Harley Heaven Pty Ltd
[2023] FWC 689
•24 MARCH 2023
| [2023] FWC 689 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Collin Grixti
v
Harley Heaven Pty Ltd
(C2023/101)
| COMMISSIONER LEE | MELBOURNE, 24 MARCH 2023 |
Application to deal with contraventions involving dismissal
Introduction
Collin Grixti commenced employment with Harley Heaven Pty Ltd, on or about 15 September 2022. Mr Grixti was employed in the position of an Apprentice Technician.
The reason given by the Respondent for the decision to terminate the Applicant’s employment is reflected in the letter of termination which states that the Applicant was “unsuccessful” in his employment during the probation period.
The Applicant has made an Application for the Fair Work Commission (FWC) to deal with a dismissal dispute. That application was lodged on 10 January 2023.
Application was filed outside the statutory timeframe
Applications for a s.365 General Protection application must be made within 21 days after the dismissal took effect.
It is not in dispute that the Applicant’s employment was terminated by the Respondent with effect from 13 December 2022. Based on a termination date taking effect on 13 December 2022, the application for a remedy should have been lodged by no later than 3 January 2022.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 7 days after the last date on which it could have been made. The Fair Work Act 2009 (Act) allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, I will outline the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.366 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay,
· any action taken by the Applicant to dispute the dismissal,
· prejudice to the Respondent including prejudice caused by the delay,
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[1]
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare.[2] I must be satisfied that, taking into account s.366 that there are exceptional circumstances.
I now consider these matters in the context of the Application.
a) Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension however, decisions of the FWC have referred to an acceptable or reasonable explanation. The absence of any 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.[3] The Applicant provided a statutory declaration prior to the hearing. In the declaration, the Applicant referenced to a number of reasons for the delay. These reasons were:
· That he had a legal representative that he approached to file the application on his behalf, but he was unable to pay them.
· That he was evicted from his home as he was unable to pay his rent and was “house hopping” for 3 weeks.
· He was suffering “the stress of all of this combined”
· The Christmas and New Year period made it more difficult.
During the hearing, some further clarity on the evidence was provided by the Applicant with respect to the legal representative. Essentially, as the Applicant was unable to pay the legal representative, no action was taken by the legal representative. In the circumstances, this is not a case of representative error. The Applicant had not engaged legal representation, there was no failure of them to act on his behalf. The fact that the Applicant approached a legal representative and was unable to pay them, and consequently did not engage them is not an acceptable reason for the delay.
As to being evicted from his home, the Applicant clarified during the hearing that he was in a share house with his friends who told him to leave once he lost his job.[4] The Applicant then moved into his father’s home.[5] There was no suggestion during the hearing that he was “house hopping” as the Applicant indicated in his statement. While this event would have caused some minor disruption to the life of the Applicant, it is not an acceptable reason for the delay of 7 days in lodging the application.
As to the stress the Applicant was feeling, it is not unusual for an Applicant to be stressed by the fact their employment has been terminated. There is no evidence the Applicant was so affected by the stress that he was unable to make the application within the statutory period.
As to the Christmas and New Year period, this is not an unforeseen or an unexpected event.[6]
In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
b) Action taken by the Applicant to dispute the dismissal
Turning next to the question of the action taken by the Applicant to dispute his dismissal. There is no evidence that the Applicant took any particular action to dispute the dismissal.[7]
In the circumstances, that is a matter that is neutral.
c) Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.
The Respondent submitted that he had only a short period of time to prepare a response to the Application. This is not particularly relevant the consideration. I am not satisfied there is any prejudice to the employer that flows from the delay.
In the circumstances, that is a matter that is neutral.
d) Merits of the application
As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
The Applicant sets out in his application at some length the alleged contraventions. In summary, the Applicant alleges that his supervisors sought to intimidate him by using inappropriate language and not supervising him appropriately. That when he asked Wayne his supervisor why he was treated “like a dickhead”, he was told to do what he was told “regardless”. The balance of the alleged contraventions largely related to the Applicant’s version of the events on 12 and 13 December 2022. It seems common ground that there was an argument of sorts between the Applicant and Stephanie in the workshop reception. The Applicant alleges that Stephanie verbally abused him. The Applicant claims that he then spoke to the Manager who agreed that the Applicant could go home. The Sections of the Act the Applicant claims were contravened include s.340, s.344, s.346 and s.351 of the Act (no attribute specified). The Applicants explanation as to how the actions identified contravened the sections of the Act identified is “they have both discriminated + degenerated against me by belittling me and not treating me as a probationary apprentice”.[8]
The Respondent submits that in the first 3 months of employment they had concerns about the Applicant’s focus, and that he was “aggressive and foul mouthed”. However, they could see he had potential. There were concerns the Applicant failed to notify of his absence on occasion. As to the events of 13 December 2022, the Respondent maintains that with one exception, it was the Applicant that used foul language in the argument with Stephanie, and that it was the Applicant who was intimidating.
There is clearly adverse action taken in that the Applicant has been dismissed. The Applicants case at its most favourable would be that he was dismissed because he was exercising a workplace right to a safe workplace. However, that would turn on the facts being found to be consistent with the Applicants version of events which is strongly contested by the Respondent. While the Respondent claims that s.344, s.346 or s.351 of the Act were breached it is not apparent in what way these sections are relevant to the Applicants case.
It seems to me therefore, that the Applicant’s claim is, on a preliminary assessment basis, weak. That is not to suggest that it will fail, but I am satisfied that there is at least some merit. However, the resolution of the factual dispute related to the events on the 13 December 2022 is central to the merits. In the circumstances, this is a neutral consideration.
e) Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position,
Cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a General Protections Application.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring a General Protections Application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks to make an application for the Commission to deal with contraventions involving dismissal pursuant to s.365 of the Act must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
As I have indicated, the lack of acceptable reason for delay weighs against the Applicant. All other factors are neutral.
In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for a s.365 made by the Applicant is dismissed.
An order to that effect will separately be issued. [9]
COMMISSIONER
Appearances:
C Grixti appearing on his own behalf
A Innes appearing on behalf of the Respondent
Hearing details:
2023
Melbourne (via Microsoft Teams)
March 15
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Ibid
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[4] PN64 to PN67 and PN71 to PN72
[5] PN77.
[6] [2010] FWA 5515 at [17]
[7] PN80 to PN84
[8] Form F3, Question 3.3
[9] PR760517
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