Corey Slade v YMCA SA T/A YMCA

[2017] FWC 5198

[2017] FWC 5198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Corey Slade
v
YMCA SA T/A YMCA
(C2017/4747)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 OCTOBER 2017

Application to deal with contraventions involving dismissal.

[1] Mr Corey Slade alleged that the termination of his employment by YMCA SA is in breach of the general protections provisions of the Fair Work Act 2009. The YMCA denies the allegation.

[2] At the hearing I granted permission for the YMCA to be legally represented. I did not accept its submission that the matter had any complexity but I determined that it would be unfair to not grant permission because the YMCA would not be able to represent itself effectively.

[3] Mr Slade’s dismissal took effect on 3 August 2017. His general protections application was recorded as lodged on 28 August 2017.

[4] In his oral evidence, Mr Slade advised that he had attempted to lodge his application on 24 August 2017 via the online lodgment system and he advised that he had some difficulty. On the same evening he said he sent an email to the Commission attaching his application. When he had not received an acknowledgement of the receipt of his application, he contacted the Commission on 28 August 2017 and was advised that no application had been received and he lodged his application on that day. Mr Slade said the fee was paid on 28 or possibly 29 August 2017.

[5] I caused enquiries to be made of the Commission’s information technology systems and no record could be found of Mr Slade filing any document using the online lodgment system. However I was advised that the email attaching Mr Slade’s application had been received on 24 August 2017 on a Commission server but had been quarantined. While the Commission was notified that a quarantined email had been received, it was not recovered at that time.

[6] I advised the parties by email prior to the hearing of the matters set out in paragraph [5]. At the hearing, I made it clear that the email of 24 August 2017 had attached to it Mr Slade’s application.

[7] However I am satisfied that Mr Slade’s application was not made until he paid the fee.

[8] S.367 of the Act provides that the application must be accompanied by any fee prescribed by the Regulations. Mr Slade was not sure of the date he paid the fee but the Commission’s records disclose it was paid on 29 August 2017.

[9] I am therefore satisfied that the application was not lodged until 29 August 2017 when the fee was paid.

[10] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances, can it then exercise its discretion to decide whether to extend time.

[11] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 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]

(a) the reason for the delay;

[12] Mr Slade lodged his application on 24 August 2017. For reasons beyond his control he did not receive an acknowledgement of his lodgment. While he did not pay the fee at this time because he lodged his application outside of business hours and therefore there was no facility to pay the fee, the application form completed by Mr Slade advised him that if he was paying by credit card that the Commission would contact him by telephone about paying the fee within three business days from the date of lodgment.

[13] Mr Slade contacted the Commission’s offices on 28 August 2017 about his application and having been advised it had not been received immediately, filed his application again.

[14] Mr Slade then paid the fee on 29 August 2017 consistent with the Commission’s advice.

[15] Mr Slade’s application was not made within time because of the difficulties he had with the online lodgment system. He did file an application within time but due to the information provided on the form by the Commission, did not pay the fee when he lodged the form. Once advised that his application had not been received he acted promptly and refiled his application and paid the fee in accordance with the Commission’s advice.

[16] While the failure of electronic communications is not unusual Mr Slade’s circumstances is unusual. It was the combination of that failure, along with the quarantining of his email and the failure of the Commission to recognize the quarantined email as an application, in combination with the information provided to Mr Slade, that he could pay his application fee within three business days of emailing his application that made his situation unusual. I am satisfied that Mr Slade had a reasonable explanation for the delay and this weighs in favour of a finding that there are exceptional circumstances.

(b) any action taken by the person to dispute the dismissal;

[17] Mr Slade did not dispute his dismissal at the time of the dismissal. Mr Slade, at the time of his dismissal, asked why he was being dismissed and was told that he was not a good fit. The first the YMCA knew that Mr Slade was alleging the termination of his employment breached the general protections provisions of the Act was when it received the application. I consider that this criterion is a neutral consideration.

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

[18] There was no evidence or submission about any prejudice to the YMCA. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(d) the merits of the application;

[19] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. 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."  3

[20] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 4 

[21] There are significant factual disputes between the parties which I am not able to resolve. I accept that Mr Slade’s claim is confusing. However, I am not able to find that it is without any merit. Given the onus on the YMCA to establish that the reasons for dismissal do not include any reason prohibited by the Act, I find that the merits weigh in favour of the finding of exceptional circumstances.

(e) fairness as between the person and other persons in a similar position.

[22] There were no submissions that there were any persons in a similar position. I find that this criterion is a neutral consideration.

Conclusion

[23] I am satisfied that there are exceptional circumstances. Mr Slade had a reasonable explanation for the delay in lodging his application. None of the other criteria weigh against a finding of exceptional circumstances. Having found exceptional circumstances, I must determine if I will exercise my discretion and extend the time.

[24] Given the circumstances, I will exercise my discretion to extend the time for Mr Slade to lodge his application to 29 August 2017. While the events highlight the risks applicants take in leaving the filing of the application until the last moment, it was the system that prevent him lodging and he should not be denied the opportunity to pursue his claim for reasons beyond his control.

[25] The application will be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

C. Slade on his own behalf.

H. Gardner for the Respondent.

Hearing details:

2017.

Melbourne, by telephone:

4 October.

 1   [2011] FWAFB 975.

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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