Craig Prendergast v Finbran Pty Ltd t/a New-Crete Concreting

[2019] FWC 7747

[2019] FWC 7747

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Craig Prendergast
v
Finbran Pty Ltd t/a New-Crete Concreting
(C2019/4556)

DEPUTY PRESIDENT BOYCE SYDNEY, 19 NOVEMBER 2019

Application to deal with contraventions involving dismissal – application filed outside of 21 day time period – no exceptional circumstances – request to extend time refused – application dismissed.

[1] On 24 July 2019, Mr Craig Prendergast (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Applicant did so by filing a Form F8 with the Commission’s Registry in Melbourne. The Applicant claimed that his employment with Finbran Pty Ltd t/a New-Crete Concreting (Respondent) was terminated by the Respondent on 3 July 2019.

[2] The Respondent submits that the Applicant was terminated on 1 July 2019, meaning that the Applicant’s claim was lodged 2 days’ out of time.

[3] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect.

[4] On 12 November 2019, I convened a hearing to determine the actual date of termination and, if applicable, whether to allow the Applicant an additional period within which to lodge his application.

[5] I have determined that the date of dismissal was 1 July 2019 and that the Applicant’s claim was lodged outside of the statutory time period. Further, I find there are no exceptional circumstances that enliven my discretion under s.366 of the Act to grant an extension of time. The reasons for my decision are as follows.

The employment and the dismissal

[6] In the Applicant’s Form F8, he submitted he began working for the Respondent on 17 May 2019. The Applicant also submitted that he was notified of his dismissal on 1 July 2019, but that it took effect on 3 July 2019.

[7] The Respondent disputes the Applicant’s assertions as to the date of the dismissal (and the date the employment came to an end). At the hearing, Mr Joe Gavin (who appeared on behalf of the Respondent) submitted that the Applicant was given verbal notice of his dismissal on 1 July 2019 and that the dismissal took effect on the same day.

[8] Mr Gavin submitted that the Applicant was dismissed because the Respondent faced a downturn in the work the Applicant had been employed to perform. Mr Gavin also submitted that other employees were also dismissed because of this downturn. Mr Gavin said that the other employees were permanent employees and provided notice of their dismissal in line with their rights and entitlements. Mr Gavin said that the Applicant was a casual employee, so the Applicant was advised that his dismissal was to take effect immediately (on 1 July 2019).

[9] The Applicant accepted that he was a casual employee. He submitted that he did not believe the dismissal took effect on the day he was notified, because he did not receive a termination certificate or anything to that effect on that day. I note, however, that a dismissal, for the purposes of determining an actual date of dismissal, need not be given in writing, and may be given orally. 2

[10] It is important to note that the Applicant acknowledged that he did not attend work, nor was he directed to attend work, after he was notified of his dismissal orally on 1 July 2019. The Applicant said that he expected there to be other work coming in the near future but there was no evidence or submission to substantiate that point. If anything, the absence of any communication or effort from either party from 1 July 2019 suggests the opposite of what the Applicant asserts.

[11] The Applicant’s position is seriously undermined by email communications filed with his Form F8. On 7 July 2019, the Applicant emailed the Respondent regarding allegations of underpayments. In that email, the Applicant acknowledged that he was dismissed on 1 July 2019. The Applicant made this concession prior to bringing his claim before the Commission and did not explain why his position changed after he lodged his claim in this matter.

[12] In light of the above, I accept the Respondent’s submissions as to the actual date of dismissal being 1 July 2019. The Applicant’s submissions on this point were inconsistent insofar as his position was contrary to the materials filed. Further, the Applicant pressed (in the alternative) that he held a mistaken belief that his dismissal was contingent upon receiving confirmation of same in writing. Importantly, the Applicant accepted that he was informed of the downturn of work on 1 July 2019, and the Applicant did not perform any further work with the Respondent post that date.

[13] I take 1 July 2019 to be the date of the Applicant’s dismissal in the circumstances where the Applicant was engaged as a casual employee, verbally notified (on 1 July 2019) that the project he was employed to work on was coming to an end, and no further request to perform work was made to the Applicant post 1 July 2019. It is on this basis that I find that the Applicant’s claim was lodged outside of the statutory time limit under s.366 of the Act.

[14] I turn now to consider whether there are exceptional circumstances that enliven my discretion to extend the time in which the Applicant can lodge his claim.

Matters to be taken into account under s.366 of the Act

[15] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366 Time for application

…

(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.”

[16] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3 A decision whether to extend time under s.366(2) involves the exercise of a discretion.4

[17] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd  5 (Nulty)as follows:

“[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.”

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” (emphasis added)

[18] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR. 6

[19] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 7I now turn to address the particular matters to which regard must be had.

Reason for the delay

[20] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.

[21] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired, and ending on the day on which an application is ultimately lodged.

[22] That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 8

[23] The Applicant submitted that he became aware of the 21-day time limit on 19 July 2019, when he received legal advice regarding same. On the back of that advice, the Applicant said he lodged his claim in circumstances where he was uncertain about the date of his dismissal (for the reasons given above). He did not believe that claim was brought outside of the statutory time limit.

[24] I do not accept the Applicant’s submissions on this point. There was no ambiguity in the Respondent’s communication to the Applicant that he had been dismissed. The Applicant was told, in no uncertain terms, that the project he had been employed to work on was to “wind down” and the Respondent would not be able to offer him work from that day. That the Applicant thought he was to be offered work on other projects by the Respondent when that was not indicated to him is an uncertainty of the Applicant’s own making.

[25] Regarding the reason for delay, the circumstances the Applicant has posited in his own submissions weigh against a finding of any reasonable explanation for delay and/or exceptional circumstances.

Action taken by the Applicant to dispute the dismissal

[26] The Applicant sent several emails to the Respondent after he was dismissed, namely between 6 July 2019 and 8 July 2019. However, those emails concerned allegations of underpayment of wages and unpaid entitlements (which I do not make any findings about). The Applicant never explicitly contested his dismissal.

[27] Nevertheless, the fact the Applicant does not appear to have expressly contested his dismissal prior lodging his claim does not necessarily weigh against a finding of exceptional circumstances. I find this to be a neutral consideration in this matter.

Prejudice to the employer

[28] Neither party made any submissions on this point. As such, and having regard to the circumstances at hand, I find this to be a neutral consideration in this matter.

Merits of the application

[29] The principles stated Kyvelos v Champion Socks Pty Ltd, 9 albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:

“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”. 10 (my emphasis)

[30] From what I can discern from the Applicant’s submissions, the Applicant claims that he was terminated because of a prohibited, discriminatory reason — that is, at some time before his dismissal, the Applicant divulged to the Respondent that he suffered from a mental health issue, which (the Applicant asserts) went to the reason for (or part of the reason for) his dismissal.

[31] The Respondent denies that the Applicant was terminated for the reasons alleged, and submits that the Applicant was terminated solely because of a downturn in work.

[32] Even on a prima facie basis, it is difficult to see the Applicant’s claim as having any merit. This difficulty is compounded by the fact the Applicant is not seeking a remedy that would flow from such a breach of the General Protection provisions. Rather, the Applicant says he is only pursuing this claim in order to recover what he says is unpaid entitlements (that is, underpayment of wages and other award/agreement entitlements).

[33] While I do not form a final view of the merits of the Applicant’s claim, I do see there is little merit in the claim on the material before more. As such, I find this factor weighs against a finding of exceptional circumstances.

Fairness as between the Applicant and other persons in a like position

[34] Neither party made any submissions on this point. As such, and having regard to the circumstances at hand, I find this to be a neutral consideration in this matter.

Conclusion

[35] The Applicant was at pains to explain the brief delay between the exhaustion of the statutory time limit, and the eventual filing of his material. The Applicant erroneously took the view that his dismissal occurred after it actually did, and took that view in circumstances where he should have known he had been dismissed orally on 12 July 2019. Moreover, there is little merit in his claim. Whatever entitlements the Applicant is pursuing, his articulation of the issues to date suggest the claim has been brought in the wrong jurisdiction.

[36] There is nothing exceptional about the circumstances of this matter. They are entirely “ordinary” in the sense described in Nulty. Accordingly, I reject the Applicant’s request for an extension of time to lodge his General Protections Claim The matter is to be dismissed. An order to that effect will follow this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for himself.

Mr Joe Gavin appeared for the Respondent.

Hearing details:

A hearing was conducted, by telephone, on 12 November 2019.

Printed by authority of the Commonwealth Government Printer

<PR714224>

 1   Fair Work Act 2009 (Cth) s 366(1) and (2).

 2   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8], citing Barolo v Centra Hotel Melbourne, Print Q9605 (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605; Ayub v NSWTrains[2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016) at para. 17.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 4   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 5   [2011] FWAFB 975.

 6   [2019] FWCFB 2384 at [16] – [20].

 7   Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

 8   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 9 (1995) 67 IR 298.

 10   Ibid 299-300.