Craig Barrie v Financial IQ Group T/A IQ Group

[2018] FWC 7512

[2018] FWC 7512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Craig Barrie
v
Financial IQ Group T/A IQ Group
(C2018/5554)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 18 DECEMBER 2018

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.

[1] On 4 October 2018, Mr Craig Barrie lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Financial IQ Group T/A IQ Group (IQ Group).

[2] Mr Barrie commenced employment with IQ Group on 10 September 2010. Mr Barrie says that he was dismissed from his role as Managing Principal on 12 September 2018 and the dismissal took effect on that day.

[3] The application therefore was lodged 1 day out of time.

[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.

Alleged Contravention

[5] Mr Barrie submits that he was dismissed because of his mental health in contravention of s.351 of the Act. Further he submits that he was dismissed because he was temporarily absent from work due to his illness in contravention of s.352 of the Act.

[6] IQ Group submits they dismissed Mr Barrie on the basis that his performance in the business was unacceptable and he had not met the required standards despite previous performance discussion and feedback provided. IQ Group denies that they dismissed Mr Barrie for any reason in contravention of Part 3.1 of the Act.

Procedural background

[7] On 9 October 2018, the parties were advised by 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 listed for hearing on 6 December 2018.

[8] Mr Barrie was self-represented. Mr Mark Champion of Counsel sought permission to represent IQ Group pursuant to s.596 of the Act. Mr Barrie objected. After considering the oral submissions from the parties and having weighed the circumstances and considerations in s.596 of the Act, I granted permission for IQ Group to be represented to assist the Commission in dealing with the matter more efficiently.

Legislative scheme

[9] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) The application 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).

[10] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[11] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where 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)

Approach of the Commission

[12] 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. The onus of establishing exceptional circumstances is on Mr Barrie.

[13] In the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 2 the Full Bench made the following statement which, although concerned with the unfair dismissal application, is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

“[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.”

[30] This extract must be read in its entirety. The decision goes on to state:

“[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.”

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

[14] I will now deal with each of the matters to be taken into account pursuant to s.366(2) separately.

(a) The reason for the delay

[15] For this consideration there must be an acceptable reason for the delay. 3

[16] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances. 4

[17] Mr Barrie has a professional background as a Project Manager with expertise in information technology. Mr Barrie’s evidence was that prior to making his application he had sought advice and assistance from a family friend and had looked at the Commission’s website. He had also discussed making the application with his family and sought the assistance of his wife and mother as he found completing the application an onerous task due to his mental health. Mr Barrie submits that he was suffering from stress and anxiety and was unable to function to his full capacity. Mr Barrie says this condition contributed to his inability to lodge the application on time.

[18] Mr Barrie’s evidence was that he had become aware of the requirement to lodge the application within 21 days of the dismissal taking effect after receiving advice from a family friend with Human Resources expertise two weeks prior to the lodgement of this application. As a precautionary measure he contacted the Commission on 1 October 2018 and was advised that 3 October 2018 was the last day he could file his application and that he would need to submit his application prior to midnight if he was to make his application within the statutory timeframe. Mr Barrie’s evidence was that he was aware that he could make his application online or he could submit his application by email. Mr Barrie also had a reminder to make the application set up in his calendar scheduled 1 October 2018.

[19] Mr Barrie’s evidence was on the evening of 3 October 2018 he sent two emails to the Commission’s Melbourne Registry. The first email was sent at 11:30pm titled Email 1 of 2. He says the first email contained his Form F8 – General Protections Application Involving Dismissal (Form F8) however the email only attached an undated and unsigned word document containing some responses to the questions contained within the Form F8 and, amongst other things, a termination letter and written warning. The email Mr Barrie says was sent at 11:30 was the email he submits was received by the Commission at 12:00am on 4 October 2018. Mr Barrie’s evidence was that he was aware the email was not transmitting and thought it may have been due to the size of the attachments and/or trouble with his home internet connection.

[20] Mr Barrie’s evidence was he sent a second email at 11:31pm that same evening. Mr Barrie submits the second email, titled Email 2 of 2, was received by the Commission at 12:01am on 4 October 2018 containing the same word document referred to above. Mr Barrie submits when he realised the second email had not sent he downloaded his files onto a USB and went to his neighbour’s house to complete an online application. The only document received through the Commission’s Online Lodgement System was a fee waiver application lodged at 12:10am by Mr Barrie.

[21] On 4 October 2018 at 9:28am a Client Services Representative contacted Mr Barrie to advise that he had not completed the prescribed Form F8. This correspondence states;

“ we understand that the previously submitted document is a supplement to a general protections application and this will be added to your matter once a completed F8-General Protections form involving dismissal has been received.”

[22] Mr Barrie’s evidence was that upon receiving the notification from the Client Services Representative he completed the prescribed form and lodged it at 10:55am.

[23] In support of his application Mr Barrie relies on the decision of Perrett v Teeth Health Life Dental T/A THL Dental (Teeth Health Life). 5 In Teeth Health Life the Commissioner found the following;

“[20] I am satisfied that the FWC website probably malfunctioned on the evening of 13 October 2016. Whilst I agree that the Applicant should have submitted her application well before the due date, the fact that she did attempt to do so before the deadline but was frustrated by the FWC’s website is an unusual situation. The Applicant could not have been aware of the technical difficulties that the FWC had been experiencing.”

[24] The Respondent relied on the decision of Ozsoy v Monstamac Industries Pty Ltd 6 in which Deputy President Gostencnik stated as follows:

“[21] The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional…”

[25] The case relied on by Mr Barrie was decided on a different set of facts. It was the Commission that was experiencing technical difficulties and not the Applicant, therefore the Applicant could not have been aware of the technical difficulties being experienced by the Commission’s website. In the current circumstances it was not the Commission’s website that was experiencing technical difficulties. Mr Barrie, who has IT expertise, had been experiencing some ongoing issues with his home internet. He was aware of these technical difficulties and his evidence was he realised it may have been due to the size of the file he was attempting to send. I do not consider intermittent internet difficulties to be an unusual or exceptional circumstance. Nor do I consider an email not transmitting due to a large file size to be unusual or exceptional.

[26] Regardless, there remains the issue that Mr Barrie had not submitted, in either of the emails purportedly sent prior to midnight, the Form F8 in the prescribed form. Mr Barrie’s evidence was that he had submitted the Form F8 however the only form the Commission has on record was the Application lodged at 10:55am, dated and signed on 4 October 2018. During the hearing Mr Barrie conceded it was possible that he may not have filed the Form on 3 October 2018.

[27] Mr Barrie was well informed about the lodgement requirements. He had been on the Commission’s website and contacted the Commission by telephone for information about lodging his application. He had obtained assistance from a HR practitioner who had provided details regarding the statutory timeframe. Mr Barrie does not claim to have been ignorant of the requirement to file his application in the prescribed form and instead submitted that he thought he could only file his materials once and with the timeline for filing nearly up he submits “I began to panic and submitted my original paperwork incorrectly”.  7 Mr Barrie’s oral evidence was that he had left the lodging of his application to the last minute, panicked, and filed what he had completed - being the Word documents containing his responses to the questions in the Form F8.

[28] In preparing his draft responses to the questions contained within the Form F8 Mr Barrie had obtained information from the Form F8. The Form makes clear the statutory timeframe for filing of an application and provides information for applicants about the requirement to lodge the Form if they wish to make an application for the Commission to deal with a General Protections dispute. I do not consider the circumstance of Mr Barrie leaving his application to the last minute and panicking, therefore not filing his application in the prescribed form until a day later, to be an exceptional circumstance that warrants an extension of time.

[29] Mr Barrie also relied on his mental health condition as a reason for the delay however there was no medical evidence to support his incapacitation. Mr Barrie led evidence that during the period since his dismissal he had been performing paid work, applying for other positions, networking through LinkedIn and had registered his own company in the hope of securing further work. Whilst I accept that Mr Barrie had been suffering from some distress due to the circumstances leading up to and surrounding the termination of his employment, I am not satisfied that Mr Barrie was so incapacitated that he could not lodge his application within the prescribed timeframe.

[30] I am not satisfied that the reasons provided by Mr Barrie, considered jointly or individually, provide a credible explanation for any part of the delay in filing his application. This factor weighs against a finding of exceptional circumstances and granting Mr Barrie an extension of time.

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

[31] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 8

[32] Mr Barrie submits other than making this application he had not taken any steps to challenge his dismissal because he was unwell and experiencing extreme anxiety and distress as a result of the actions taken by IQ Group.

[33] Whilst I do not question the legitimacy of Mr Barrie’s claim that he was suffering from stress and anxiety, I am not persuaded that Mr Barrie had taken the necessary steps to dispute his dismissal. In the circumstances, this weighs against a finding of exceptional circumstances.

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

[34] Prejudice to the employer will go against the granting of an extension of time. 9

[35] IQ Group submits they will not suffer any prejudice by reason of an extension of time.

[36] Mr Barrie submits that a granting of the application for an extension of time would not prejudice his employer.

[37] Noting the delay was one day I am satisfied there would be no greater prejudice to IQ Group caused by the application being dealt with than if it had been made within the 21 day time period. However the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. I consider this factor to be a neutral consideration.

(d) Merits of the application

[38] Mr Barrie submits he was dismissed because he made his employer aware of his inability to cope with the pressure of his role which was increasingly causing him anxiety. Mr Barrie took a period of combined sick leave and annual leave and submits that when he returned he had been removed from the Executive team and his role as Head of Sales.

[39] Mr Barrie submits that IQ Group treated him adversely by removing him from his senior leadership role whilst he was on leave for mental health reasons. He submits that IQ Group overloaded him in a work capacity and refused to provide him with additional support. Mr Barrie further submits IQ Group denied him any flexibility and treated him differently to his peers and refused to provide him with the necessary tools to do his job, whilst also constantly changing his responsibilities and isolating him by denying him attendance at the weekly sales meetings.

[40] IQ Group submits Mr Barrie’s employment was terminated for reasons of his unsatisfactory performance as a Project Manager. IQ Group submit Mr Barrie placed a project he was responsible for at significant risk due to a demonstrated inability to manage costs, risks and his lack of time management and reactively addressing issues. IQ Group further submit Mr Barrie had demonstrated tardiness in attending the office during standard operating hours and had failed to communicate or return to work after a scheduled period of annual leave.

[41] IQ Group submit Mr Barrie had been operating his own business in home renovations and construction during company time, distracting him from performing his contracted duties to IQ Group. They submit that Mr Barrie was also using company resources to operate his own business.

[42] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 10 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.11 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

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

[43] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 12

[44] IQ Group submit that fairness as between Mr Barrie and other persons in a like position is a neutral factor.

[45] When asked about this consideration Mr Barrie’s submission went more to the merits of the application. I find this factor to be a neutral consideration in determining whether to grant an extension of time.

Conclusion

[46] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[47] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 13

[48] Having considered all of the evidence and submissions against each 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).

[49] Accordingly, the application is dismissed. An order 14 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

C. Barrie on his own behalf;

M. Champion for the Respondent

Hearing details:

2018

Melbourne

December 6

Printed by authority of the Commonwealth Government Printer

<PR703039>

 1   [2011] FWAFB 975.

 2   [2016] FWCFB 349

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [45]

 5   [2016] FWC 8312

 6   [2014] FWC 479

 7   Form F8

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 9   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 10   Haining v Deputy President Drake (1998) 87 FCR 248, 250

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

 12   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 13   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 14   PR703040