Connor Williams v The Trustee for the Dellam Family Trust T/A Boost Juice Cockburn Gateways
[2021] FWC 3951
•9 JULY 2021
| [2021] FWC 3951 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Connor Williams
v
The Trustee for the Dellam Family Trust T/A Boost Juice Cockburn Gateways
(C2021/2375)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 9 JULY 2021 |
Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.
Introduction
[1] This decision concerns an application by Mr Connor Williams (Applicant) under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). Section 366(1) 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 section 366(2).
[2] It is uncontested that the Applicant’s employment with the Respondent ended on 29 March 2021. The GP Application was lodged on 27 April 2021. The period of 21 days ended at midnight on 19 April 2021 and the GP Application was therefore lodged 8 days out of time. The Applicant seeks that the Commission allows a further period of time for the GP Application to be made. The Respondent company opposes the grant of an extension of time.
[3] On 28 June 2021 I conducted the proceeding by way of determinative conference by telephone. Mr Mark Williams, the Applicant’s father, appeared on behalf of the Applicant. The Applicant gave evidence on his own behalf and Mr Andrew Whitelaw, a family friend, also gave evidence on behalf of the Applicant. Mr Jamie Della Maddalena, Owner Operator/Franchisee of the Respondent, appeared on behalf of the Respondent. Mr Della Maddalena called Ms Jasmine Broomfield, Experienced Team Leader, Ms Lily Vause, Junior Team Leader and Ms Prudence Ackrill, Junior Team Leader, to give evidence. The Respondent filed a witness statement for Ms Samantha Johnston, Senior Team Leader, however, Ms Johnston was not available at the determinative conference and accordingly, I have not had regard to her evidence.
Background
[4] The Respondent is a franchise of Boost Juice. The Applicant was employed by the Respondent in the role of Part Time Team Member from 12 December 2020 until 29 March 2021. 1 The Applicant says that he attended a meeting with Mr Della Maddalena and a Team Leader on 29 March 2021 where concerns regarding his performance were raised.2 The Applicant says that he was informed by Mr Della Maddalena that his employment was terminated “there and then” (Dismissal Meeting).3
[5] On 19 April 2021 the Applicant lodged an application for the Commission to deal with an unlawful termination dispute pursuant to section 773 of the Act (Unlawful Termination Application). The Unlawful Termination Application was unsigned. On 23 April 2021 the Applicant lodged a signed Unlawful Termination Application. On 30 April 2021 the Applicant discontinued the Unlawful Termination Application. As already set out, the Applicant lodged the GP Application on 27 April 2021.
Consideration
[6] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 4
[7] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 5 where it was noted that, in order to be exceptional, 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 noted 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.6
[8] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 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 like position.
Reason for delay
[9] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 7 or a reasonable explanation.8 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd9 the Full Bench 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 the circumstances must be considered.10 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.11
[10] As to the reasons for the delay, the Applicant firstly submits that there was an initial delay in lodging the Unlawful Termination Application as he was “waiting on clarification from the Respondent as to why [he] was dismissed.” 12 He says that he sent multiple emails to the Respondent from the date of dismissal until the 8 April 2021 requesting reasons for the termination.13 The Applicant says that between the Dismissal Meeting and 8 April 2021 the Applicant contacted Mr Della Maddalena requesting reasons for the dismissal, dates and times of alleged policy violations that resulted in the dismissal, and for an in person meeting to occur between the Applicant, Mr Della Maddalena, Mr Della Maddalena’s “boss” Lisa, and the Applicant’s support person.14 The Applicant says that these requests were denied by Mr Della Maddalena. From 8 April 2021 to 19 April 2021 the Applicant says that he was waiting for a response from Mr Della Maddalena but did not receive one.15 Secondly, the Applicant says that on 19 April 2021 he telephoned the Commission hotline and “was directed to fill out an F9”. He says that the Unlawful Termination Application was lodged in time but on 23 April 2021 he was informed by the Commission that he was “entitled to make a General Protection application.”16 He says that “by the time this application was completed and sent off, the 21 day period had elapsed.”17 At the determinative conference Mr Williams submitted that because the F9 had been lodged in time and “the process was already started” the Applicant reasonably thought that any further application was also lodged in time.
[11] As set out at paragraph [9] above, although the circumstances following dismissal must be considered in assessing the explanation for the delay, the period of the delay to be considered is the period immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. Accordingly, the steps taken by the Applicant between the Dismissal Meeting and 19 April 2021 cannot provide an acceptable or reasonable explanation for the delay between the period of 19 April 2021 and the time of lodgement. Further, a review of the correspondence between the parties does not support an assertion that the Applicant was waiting for a response from Mr Della Maddalena. On 1 April 2021 Mr Della Maddalena responded to an email from the Applicant and set out in point form the reasons for the Applicant’s dismissal. In addition, in the final email from Mr Della Maddalena to the Applicant on 8 April 2021, Mr Della Maddalena says (amongst other things):
“As discussed in our meeting on 29 March 2021, I confirmed that [un]fortunately [sic] the employment relationship has not worked due to the discussed issues, and accordingly, we have decided that it would be in the best interest of both parties to cease the employment relationship under your probationary period (first 6 months).
...
...I feel as though we went through the reasons for your termination in detail in our meeting on the 29th March and do not feel like a face-face meeting would be the right option for us.
...
Connor, I wish you all the very best for your future.”
[12] I consider it clear from this email that Mr Della Maddalena did not intend to engage further with the Applicant regarding his termination and am unable to see what further information the Applicant expected or was waiting for.
[13] As to the Applicant’s assertions regarding the lodgement of the Unlawful Termination Application and the F9, a search of the Commission’s file demonstrates that on 19 April 2021 the Applicant contacted the Commission’s telephone hotline (19 April Call). The 19 April Call was recorded and a copy of that recording was provided to the parties prior to the determinative conference. In the 19 April Call the Applicant enquired as to his eligibility to make an unfair dismissal claim and was informed that he was ineligible to make such a claim due to his length of service. However, he was informed that if he had been dismissed for an unlawful reason he may have a “general protections claim”. In the 19 April Call:
• reference was made multiple times to a “general protections” application or claim and a “general protections form”;
• the Applicant was provided with the Commission’s website to enable him to obtain more information regarding a “general protections dispute” and informed to go to the termination of employment section in the menu and click on “general protections dismissal” to obtain more information;
• the Applicant was informed that if he wished to make such an application he needed to fill out an F8 (general protections application form);
• no reference was made to the Applicant lodging an unlawful termination application.
[14] The recording of the 19 April Call demonstrates that the Applicant was not, as he asserts, “directed to fill out an F9”, rather he was given information regarding a general protections application and informed that should he wish to make such a claim he would need to file an F8 general protections application. At the determinative conference, Mr Williams conceded that in the 19 April Call the Applicant was informed that he could lodge an F8 and was not directed or informed to file an F9. I consider that the lodging of the F9 was solely an error of the Applicant’s.
[15] Notwithstanding the above, the Applicant lodged the Unlawful Termination Application on 19 April 2021. At the determinative conference Mr Williams submitted that the Applicant was “confused” and “made a mistake”. I am unable to see how the Applicant was confused. The Applicant was given information in relation to a general protections application, detailed information as to where to find further information in relation to such applications on the Commission’s website and informed that the correct application was an F8. All of this information was provided to the Applicant before he lodged the Unlawful Termination Application. In those circumstances, I do not consider that the Applicant can have been confused.
[16] I accept that the Applicant lodged the Unlawful Termination Application believing it to be the correct application and in that sense “made a mistake”. However, not only was it not the correct application, it was also not the application to which he was directed or provided information in relation to. In this context, I refer to and repeat my comments set out in paragraphs [13] – [15] above. Further, the Commission’s website provides clear information regarding accessibility of the unlawful termination laws. Under the heading “Overview” the website provides as follows:
“Overview
An employee (or an industrial association entitled to represent the employee) who is:
• not a national system employee, or
• a national system employee who is not eligible to make a general protections application
may make an unlawful termination application to the Commission if their employment has been terminated and they believe that the termination was in contravention of section 772(1) of the Fair Work Act 2009 (the Act).”
[17] Under the heading “Who is covered by unlawful termination laws?” the website provides as follows:
“…
Unlawful termination laws do not cover:
• Employees who are eligible to make a general protections application
…”
[18] Accordingly, there is readily available information on the Commission’s website regarding eligibility to lodge dismissal applications. A preliminary perusal of that information demonstrates that the Applicant is ineligible to make the Unlawful Termination Application. Further, he was informed of the correct application in the 19 April Call, prior to lodging the Unlawful Termination Application.
[19] Additionally, the Unlawful Termination Application was unsigned. Rule 17 of the Fair Work Commission Rules 2013 (Rules) provides as follows:
“17 Documents to be signed and dated
(1) A document (other than an affidavit, annexure or exhibit attached to another document) that is lodged by a party in a matter must be dated and signed by either:
(a) the party; or
(b) if the party has a lawyer or paid agent—the lawyer or paid agent.”
[20] Accordingly, the Unlawful Termination Application was not filed in accordance with the Rules and on one view therefore was not lodged in time, 18 although it is to be noted that pursuant to section 586 of the Act the Commission can waive an irregularity in the form or manner in which an application is made.
[21] The prior lodgement of an erroneous application to the Commission has been considered an acceptable reason for the delay in lodgement of a second application. 19
[22] In Hambridge v Spotless Facilities Services Pty Ltd 20 the Full Bench of the Commission said:
“[41] … A mistake in using a wrong form by a self-represented applicant should not lead to an outcome which is fatal to the applicant’s access to the Commission’s jurisdiction.”
[23] However, upon realising that an incorrect application has been made it is incumbent on an applicant to act swiftly in making the correct application. 21
[24] On 21 April 2021 the Commission telephoned Mr Williams in his capacity as the Applicant’s representative. The Commission’s records demonstrate that during that conversation the accessibility of the Unlawful Termination Application and an alternative general protections application were discussed with Mr Williams. Two days later, on 23 April 2021, the Applicant filed a signed Unlawful Termination Application. Accordingly, notwithstanding the further information provided to his representative on 21 April 2021 the Applicant did not file a general protections application at that time, electing to continue to pursue the Unlawful Termination Application. On 23 April 2021, following the filing of the signed Unlawful Termination Application the Commission contacted the Applicant to discuss his eligibility to lodge a general protections application and the filing of an F8 general protections application. The Commission’s records demonstrate that Applicant advised the Commission at that time that he would lodge an F8. The Applicant was advised that the application may be out of time and he was referred to the Benchbook. However, the Applicant do not file the GP Application for a further 4 days, until 27 April 2021.
[25] Accordingly, the Applicant and his representative were informed on 19 April 2021, 21 April 2021 and again on 23 April 2021 of the Applicant’s ability to lodge a general protections application and of the accessibility of the Unlawful Termination Application. Notwithstanding that, the Applicant did not lodge a general protections application on any of those days. The accessibility of the Unlawful Termination Application and the desirability of lodging an alternate general protections application was raised with Mr Williams on 21 April 2021 and with the Applicant on 23 April 2021. Further, in the telephone call on 23 April 2021 the Applicant advised the Commission that he would lodge a general protections application. Notwithstanding that, and also being advised at that time that a general protections application may be out of time and being referred to the Benchbook, the Applicant did not act with expediency but waited a further 4 days, until 27 April 2021, to lodge the GP Application.
[26] The Applicant and his representative were therefore informed multiple times following the filing of the Unlawful Termination Application and from 21 April 2021 as to the accessibility of the Unlawful Termination Application and of the Applicant’s eligibility to make a general protections application. However, the applicant did not, upon being provided with this information, lodge a general protections application at any time during that period. Further, notwithstanding advising the Commission on 23 April 2021 that he would file a general protections application and being informed that such an application may be out of time, the Applicant did not act expeditiously to file the GP Application. Rather, he waited a further 4 days, filing the GP Application ultimately on 27 April 2021. Accordingly, I do not consider that the Applicant acted expeditiously to correct the error, despite repeated information being provided to him regarding it. In these circumstances, I do not consider the prior lodgement of the F9 in error provides an acceptable or reasonable explanation for the delay in lodgement.
[27] Finally, it is clear that an application under section 772 of the Act for unlawful termination is not the same as an application under section 365 of the Act for a dismissal in breach of Part 3-1 of the Act. Accordingly, it is equally clear that “the process” had not “already been started” as is submitted. That the Applicant thought this to be the case is not to the point. Ignorance of one’s rights is not an acceptable or reasonable explanation for a delay in lodgement. 22
[28] As to any assertion that the Applicant did not know that he could lodge a general protections application, as already set out above, it is well established that ignorance of one’s rights is not an acceptable or reasonable explanation for a delay in lodgement. 23 Further, as also already set out above, in the 19 April Call the Applicant was advised that he may be eligible to lodge a general protections application, that if he wished to do so he ought lodge an F8 and was directed to the specific sections of the Commission’s website to access further information regarding a general protections application. In light of that, I am unable to see how it could be said that the Applicant was unaware of his right to lodge a general protections application. Additionally, I note that in an email to the Respondent at 12.18 am on 1 April 2021, the Applicant asks for further details of his alleged performance issues “before I contact Fair Work Australia to discuss how this was executed.” Accordingly, on the material before the Commission the Applicant was aware of his right to dispute his dismissal on 1 April 2021 but did not attempt to do so for a further 18 days and further, was aware of his ability to lodge a general protections application prior to the expiry of the 21 day time frame for such applications. This does not provide a reasonable or acceptable explanation for the delay in lodgement.
[29] Finally, at the determinative conference Mr Williams also said that he and the Applicant “were trying to get our heads around how this all worked”. This does not provide a reasonable or acceptable explanation for the delay in lodgement. As already set out, it is well established that ignorance of one’s rights is not an acceptable or reasonable explanation for a delay in lodgement. 24
[30] In light of all of the above, I do not consider that the Applicant has provided a reasonable or acceptable explanation for the delay in lodgement. This weights against the grant of an extension of time.
Action taken by the person to dispute the dismissal
[31] As set out above, the Applicant raised concerns regarding his dismissal with Mr Della Maddalena between the Dismissal Meeting and 8 April 2021. Further, it is uncontested that the Applicant lodged the Unlawful Termination Application. In light of these matters, at the determinative conference the Respondent conceded, correctly in my view, that the Applicant took action to dispute his dismissal. This weighs in favour of the grant of an extension of time.
Prejudice to the employer
[32] The Respondent submits that it will suffer prejudice. It says that it is a small business, already struggling with the demands of the COVID 19 pandemic and has had to expend “scarce” time and resources in responding to the application and dealing with the extension of time question. 25 It further says that the Applicant did not follow the correct procedure in lodging the application.26 The Applicant disputes that any prejudice is suffered by the Respondent as he “was happy to settle this without going to Fair Work”.27
[33] Whilst noting the Respondent’s submissions, I am unable to identify any particular prejudice which will accrue to the Respondent. However, the mere absence of prejudice is not, in my view, a factor that would weigh in favour of the grant of extension of time. I consider this to be a neutral consideration in the present case.
Merits of the application
[34] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
[35] The Applicant asserts that he was dismissed because of his gender and that he “was only 2/10 males hired and only 4/43 workers that are male in the store.” 28 He relies on section 351 of the Act.29 He also asserts that he was “was not afforded the same opportunities as other new female employees”.30
[36] It is uncontested that the Applicant was dismissed by the Respondent. Accordingly, adverse action as defined in section 342 of the Act was taken against the Applicant. However, in its materials and at the determinative conference the Respondent says that the Applicant was dismissed due to “poor work performance” and “not based on his Gender.” 31 It says that the Applicant was “incapable of doing the job”, “refused to do the job”, “had an extremely bad working attitude”, “was incapable of working in a team environment” and “refused to follow basic hygiene practices.”32
[37] Given the interlocutory nature of these proceedings, and on the material currently available to the Commission, it is not possible to form a concluded view as to whether adverse action was taken against the Applicant in breach of section 351 of the Act. The evidence of the Applicant and the Respondent would need to be fully tested under oath. However, on the material currently before the Commission and on the basis of the evidence given at the determinative conference, I incline to the view that the Applicant’s claim is weak. Notwithstanding that, for present purposes I am prepared to consider the merits of the Applicant’s application to be a neutral consideration.
Fairness as between the person and another person in a like position
[38] Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.33 Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.34 In relation to this consideration the Applicant submitted that a female trainee was given an opportunity to improve her performance when it was considered unsatisfactory, however, he was not. 35 The Respondent submitted that he spoke with his human resource department before dismissing the Applicant as it does before dismissing any employee.36 At the determinative conference the Respondent submitted that the Applicant was given ample opportunity to improve. I do not consider any of these submissions to be of assistance in relation to this consideration. The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I have, however, had regard to the cases referred to in paragraphs [21] – [23] above. In the present circumstances, I consider this to be a neutral consideration.
Conclusion
[39] The time limit that applies to the exercise of a person’s right to bring an application under section 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.
[40] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of the Applicant’s application.
[41] Accordingly, I decline to grant an extension of time under section 366(2). Mr Connor Williams’ application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
M Williams for the Applicant
J Della Maddalena for the Respondent
Hearing details:
2021
Melbourne (by telephone):
28 June 2021
Printed by authority of the Commonwealth Government Printer
<PR731420>
1 Form F8 Application at q.1.1-1.3
2 Witness Statement of Connor Williams
3 Ibid
4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
5 [2011] FWAFB 975
6 Ibid at [13]
7 Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
8 Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
9 [2018] FWCFB 901
10 Ibid at [39]
11 See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
12 Applicant’s outline of argument: extension of time at q.1d
13 Witness Statement of Connor Williams
14 Ibid
15 Ibid; Applicant’s outline of argument: extension of time at q.1d
16 Applicant’s outline of argument: extension of time at q.1d
17 Ibid
18 See Fair Work Act2009 s 585
19 Lane v Kangaroo Island Drive & Adventures Pty Ltd[2010] FWA 3939; Nash v Discovery Holiday Parks Barossa – Tanunda[2015] FWC 380; Green v Bilco Group Pty Ltd[2018] FWC 6818
20 [2017] FWCFB 2811
21 Kelly v The Alphabet Academy Sydney Pty Ltd T/A The Alphabet Academy[2017] FWC 3090 at [15]
22 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14]
23 Ibid
24 Ibid
25 Respondent’s outline of argument: extension of time at q.1g
26 Ibid
27 Applicant’s outline of argument; extension of time at q.1f
28 Form F8 Application at q.3.1
29 Ibid at q.3.2
30 Applicant’s outline of argument: extension of time at q.1h
31 Form F8A Employer Response at q.5.1
32 Respondent’s outline of argument: extension of time at q.1h
33 Wilson v Woolworths [2010] WA 2480 at [24-29]
34 Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
35 Applicant’s outline of argument: extension of time at q.1i
36 Respondent’s outline of argument: extension of time at q.1f
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