Damian Saunders v Verizon Australia Pty Ltd T/A Verizon

[2016] FWCFB 1750

[2015] FWC 8633 [Note: An appeal pursuant to s.604 (C2016/2023 was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 23 March 2016 [[2016] FWCFB 1750] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Damian Saunders
v
Verizon Australia Pty Ltd T/A Verizon
(C2015/3982)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 15 DECEMBER 2015

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Damian Saunders (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 18 May 2015 under s.365 of the Fair Work Act 2009 (the Act). In his application Mr Saunders contends that he had been dismissed by Verizon Australia Pty Ltd (the Respondent) on 24 April 2015 in contravention of the general protections provisions in the Act. As the application had been lodged three days outside the statutory timeframe for lodgement, the Commission issued Directions on 25 May 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The Directions issued invited both parties to indicate if they wished to be heard on the extension of time issue and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the Directions. As Mr Saunders requested a hearing, a telephone hearing was held on 6 July 2015 to deal with the extension of time issue. At that hearing, Mr Saunders appeared on his own behalf, while Mr Gary Slezak, Verizon’s Senior Counsel – Legal and External Affairs, and Ms Amanda Barnard appeared on behalf of the Respondent.

[3] 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.

Background

[4] Verizon is a data management and business and network development company which operates in a number of countries. Mr Saunders commenced employment with Verizon on 8 December 2005 and worked a variable roster involving 12 hour shifts. Mr Saunders’ role was to monitor critical internet gateways for the Australian Government to ensure hacks were detected.

[5] In his application, Mr Saunders alleged that he was dismissed from his employment on 24 April 2015 after raising concerns about the need to maintain a safe and healthy workplace. Mr Saunders’ safety concerns were linked to fatigue which he considers arose from the long shifts he was required to work, allegedly without breaks.

[6] Mr Saunders had received two written warnings, the first on 23 March 2013 and the second on 3 June 2014, for falling asleep at his desk during his shift. Verizon contends that this gave rise to the potential for major breaches of security in Government agencies and that it was inconsistent with Mr Saunders’ employment contract.

[7] On 24 April 2015, Mr Saunders was observed asleep at his desk on two occasions during his shift. As a result, Mr Saunders’ employment was terminated with effect from that date.

[8] Mr Saunders contended that Verizon had breached the general protections provisions of the Act in several respects, including that he had:

• a workplace right to the benefit of a safe and healthy workplace; and



• been discriminated against when compared to other employees.

[9] As previously noted, Mr Saunders’s general protections application was received by the Commission on 18 May 2015, three days outside the 21 day statutory timeframe for lodgement specified in s.366(1)(a) of the Act.

The Relevant Legislation

[10] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 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).

366(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.”

Whether to allow a further period for the application to be made

[11] 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. I will deal with each of those matters separately.

(a) The reason for the delay

[12] Key reasons cited by Mr Saunders for the delay in lodging his application were that:

• Verizon did not provide information he had requested regarding his employment, e.g. which Award he was employed under, in a timely or clear fashion;



• he sought advice from a number of sources, including Legal Aid;



• he became mentally and physically exhausted when finalising his application; and



• on 16 May 2015 he received an email from Verizon which included changes to his payment contract details which required him to revise his draft application.

[13] In his submissions, Mr Saunders also referred to the Acts Interpretation Act 1901 and other legislation to support his contention that the 21 day period expired on 16 May 2015 which was a Saturday and that as his application was lodged on the next business day (i.e. 18 May 2015) it had therefore been lodged within time.

[14] At the telephone hearing, Mr Saunders reiterated several of the reasons cited in his submissions, adding that he was aware of the 21 day timeframe but that he miscalculated when the timeframe expired. Also at the hearing, Mr Saunders stated that he did not seek to clarify his understanding of when the 21 day timeframe expired with anyone.

[15] Verizon submitted, inter alia, that no specific reasons for the delay were provided by Mr Saunders, that none of the circumstances in his submission were valid and furthermore none were exceptional. Accordingly, Verizon was not satisfied that Mr Saunders had provided acceptable reasons for the delay. At the telephone hearing, Verizon submitted that Mr Saunders could have lodged his application at any time within the 21 day timeframe and noted that he had miscalculated when the 21 day period expired.

[16] It is not clear from Mr Saunders’ submissions why he required the information he sought from Verizon to complete his application. While his application raises the issue of alleged underpayments, in this case this is not material to establishing a contravention of the general protections provisions of the Act. Further, Mr Saunders highlighted his exhaustion in finalising his application. I note that for most self-represented applicants completing a general protections application can be challenging. However, this of itself is not an exceptional circumstance given that it something experienced by many applicants. As to the email which Mr Saunders received from Verizon on 16 May 2015, I note that this email was received outside the 21 day timeframe. As such, it cannot be relied upon as an explanation for the delay in filing his application. Finally, I also note that Mr Saunders miscalculated when the 21 day statutory timeframe expired.

[17] Taken together, the reasons for the delay cited by Mr Saunders do not support a finding that there were exceptional circumstances in this case.

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

[18] Mr Saunders submitted that following his dismissal he contacted a number of bodies, including Legal Aid, seeking advice and support. Mr Saunders did not dispute that he did not directly communicate to Verizon an intent to dispute his dismissal, though he contended that his intent should have been clear from the material he had requested Verizon provide him regarding his employment in the aftermath of his dismissal. At the hearing, Mr Saunders submitted that he did not see the need to advise Verizon that he was intending to dispute his dismissal.

[19] Verizon submitted that there was no action taken by Mr Saunders to dispute his dismissal, adding that in his emails of 27 April and 13 May 2015 among other communications with Verizon, there was no mention by Mr Saunders of him disputing the dismissal. Verizon reiterated these submissions at the telephone hearing.

[20] Based on the material before the Commission, it appears that other than lodging his general protections application Mr Saunders did not take any action to dispute his dismissal. This does not support a finding that there were exceptional circumstances.

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

[21] Mr Saunders submitted in effect that Verizon would not be prejudiced were the Commission to grant a further period for him to make his application.

[22] Verizon submitted that the delay in Mr Saunders lodging his application had caused it prejudice given the time and effort it had to expend responding to the application.

[23] Having to respond to a general protections application necessarily involves some resources, however this of itself does not equate to prejudice. I therefore consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[24] Mr Saunders did not directly address this consideration. As previously noted, Mr Saunders contended that Verizon dismissed him as a consequence of him raising health and safety concerns. At the telephone hearing, Mr Saunders submitted that for the seven or eight years which Verizon had owned the business it had not complied with the terms of the relevant Award. Further, he was yet to be receive his pay in lieu of notice and be paid his outstanding employee entitlements and was pursuing these issues with the Fair Work Ombudsman.

[25] Verizon submitted that the application has little merit, highlighting that Mr Saunders was dismissed due to a series of serious breaches of his employment contract. Verizon further submitted that Mr Saunders had been on notice since 3 June 2014 that a further breach could result in the termination of his employment. At the telephone hearing, Verizon reiterated that Mr Saunders was dismissed due to a series of serious breaches of his employment contract and characterised his general protections contentions as “far-fetched.”

[26] Having reviewed the material before the Commission, I cannot conclude that the application is completely devoid of merit. However, in circumstances where Mr Saunders had been warned on two previous occasions about the behaviour that ultimately resulted in his dismissal and where those warnings foreshadowed the possibility of further disciplinary action which could potentially lead to dismissal should the behaviour reoccur, the merits of Mr Saunders’ application do not appear particularly compelling. Further, I note that Mr Saunders submitted in his application that he initially raised his health and safety concerns in April 2014 at the time of the incident which lead to him receiving a second written warning. Given that Mr Saunders was not dismissed until after the third incident on 24 April 2015, i.e. some twelve months after initially raising his health and safety concerns, based on the material presently before the Commission the link between him raising those concerns and his dismissal appears somewhat tenuous.

[27] As such, I consider the merits of the application to be a neutral consideration.

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

[28] Mr Saunders stated that in his view it would be really unfair if his application was not heard because he was out of time. At the telephone hearing, Mr Saunders submitted that he was dismissed without being given an opportunity to defend himself and that there were bound to be other similar cases, though he did not refer to any specific cases.

[29] Verizon submitted at the telephone hearing that Mr Saunders had not identified how it would be unfair to him if the Commission declined to grant a further period for him to make his general protections application.

[30] In the absence of any compelling submissions on this factor, I consider it to be a neutral consideration.

Conclusion

[31] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group (Nulty) 1in the following way:

“[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.”

[32] Having considered all of the factors set out in s.366(2) and drawing on Nulty, 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).

[33] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

Appearances:

D. Saunders on his own behalf.

G. Slezak and A. Barnard for the Respondent.

Hearing details:

2015.

Canberra, Melbourne and Sydney (telephone):

July 6.

 1 (2011) 203 IR 1

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