Damien Gurgone v MLG OZ Limited
[2022] FWC 1998
•27 JULY 2022
| [2022] FWC 1998 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Damien Gurgone
v
MLG OZ Limited
(C2022/2988)
| DEPUTY PRESIDENT LAKE | BRISBANE, 27 JULY 2022 |
Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed because there are no exceptional circumstances.
Mr Damien Gurgone (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a General Protections dispute in relation to the termination of his employment by MLG OZ Limited (the Respondent).
The Applicant commenced employment on 8 December 2021 and was terminated during his probation period on 2 April 2022. The Applicant lodged a Form F2 – Application for an Unfair Dismissal on 24 April 2022. This application was out of time by one day with no explanation offered. The Commission phoned the Applicant on 27 April 2022 advising that he had not met the Minimum Employment Period and proceeded to discontinue his application. The Applicant then filed a Form F8 – General Protections application on 17 May 2022 which was 24 days late.
Following the application on 17 May 2022, the Commission served on the Respondent on 25 May 2022 the application. On 1 June 2022, the Respondent filed and served the Form F8A – Employer’s Response to the Application. On 20 June 2022, the Applicant was directed by the Commission to file and serve a statement setting out the basis on which he seeks an extension of time by no later than 4:00pm on 27 June 2022.
On 4 July 2022, the Commission extended the period for which the Applicant was to file his material until 4:00pm on 5 July 2022. In response, the Applicant advised that he did not understand what he needed to reply to. The Commission sent the Applicant another copy of the Directions and reiterated that he was required to file and serve his statement by 4:00pm on 5 July 2022.
The Applicant sent a further email to the Commission requesting an extension of time because he is a fly-in-fly-out worker and is given his rosters only a few days ahead of time. He advised he also had poor mobile reception on his current work site. On 7 July 2022 the Commission proposed a new timetable for the parties to file submissions ahead of the hearing.
Later that day the Applicant advised that he would be home for 6 days from 13 July 2022 but did not know any more about his roster.
On 8 July 2022, I issued new directions as follows:
“• if the Applicant wishes to provide anything further, they must file it with the Commission and serve on the Respondent by 4pm on Tuesday 12 July;
· the Respondent is directed to file with the Commission and serve on the Applicant their submissions by 4pm on Friday 15 July; and
· to move the Hearing forward to 2pm on Monday 18 July.”
The Applicant did not provide any further materials until the day of the hearing when he forwarded to my Chambers 12 emails containing previous correspondence between himself and employees of the Respondent.
Representation
The Respondent sought to be represented at the hearing, which the Applicant did not oppose. Granting permission to be represented under s.596 requires the satisfaction of two elements.[1] First, that one of the criteria under s.596(2) is present. That said, the existence of one such factor does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”[2] If that is overcome, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3]
The Respondent submitted that representation would enable the matter to be dealt with efficiently, taking into account the complexity of the matter, both in terms of the factual matrix and the legal test. The Respondent noted that the provision does not require a finding that a matter is highly complex, but rather that given the complexity of the matter, it will be dealt with more efficiently by permitting legal representation. The Respondent submits that this matter involves several legal and factual complexities that would be dealt with more efficiently if the Applicant was legally represented, and further, it would be unfair not to allow the Respondent to be represented by a legal representative. Finally, the Respondent submits that allowing legal representation would ensure that the matter is dealt with more effectively by making concessions on the facts and law as appropriate, confining cross-examination of the Applicant and ensuring the Commission is pointed to relevant authorities both for and against its case.
The Applicant did not object to the Respondent being represented. However, he drew to my attention that he was unable to obtain and brief any legal representation and even if he was able to obtain legal representation, his current employment and financial status would not allow this to occur.
Given the complexity and sensitive nature of some of the matters to be discussed, I was satisfied that it was appropriate to grant the Respondent permission to be represented. Accordingly, the Respondent was represented by Aimee Dash of Sparke Helmore Lawyers.
The Respondent’s case
The Respondent asserts that the Applicant’s employment ended by way of dismissal within the probation period on 2 April 2022.
The Applicant commenced employment on 8 December 2021 as a mobile plant operator and was given a site induction and had theoretical and practical assessments regarding the Respondent’s policies and procedures. This included training in “positive communication” requirements when driving a mobile plant.
Positive communication requires workers to proactively respond to all communications over the radio system to confirm information has been received and understood, and to communicate respectfully. This is a critical skill when working on a mining site.
On 23 and 24 March 2022, the Respondent received a number of incident reports from
workers in relation to the Applicant failing to demonstrate positive communication. On 28 March 2022, the Applicant was invited to attend a disciplinary meeting in relation to the allegations of misconduct. The meeting took place on 29 March 2022.
On 2 April 2022, the Respondent wrote to the Applicant and notified him that a decision had been made to terminate his employment during his probation period because he had failed to follow the positive communications procedure on several occasions.
The Applicant made an Unfair Dismissal application one day late and upon being informed by the Commission on 27 April 2022 that he did not meet the minimum employment period, he then filed a General Protections application. He waited until 17 May 2022 to file the application which was 24 days late. Once again, he provided no reasons for his delay.
The Respondent submits that the Applicant has failed to demonstrate any exceptional
circumstances upon which the Commission can be satisfied to exercise its discretion
to extend the time period within which the application can be lodged.
The Applicant’s case
The Applicant asserts that he was dealing with family issues, looking for work, and dealing with the shock of being dismissed unfairly in his eyes. He said that he tried to gain legal assistance and he stated that he had spoken with the Fair Work Commission. He said that he does not know how the Fair Work Commission works and what he should do to make an application. However, he knew, in his mind, that he had been bullied and treated badly by the employer and thought that this dismissal was completely unfair.
He said that he wanted the facts of his dismissal laid out for him so he could address the matters as he felt that he had been treated poorly.
He said that he was back from the Mine for 7 days but then had found work and so he had been at a site with poor reception and unable to pursue any applications until he returned home where he had a very sick family member to care for. He states it was a very difficult time for him and he did not know what to do or how to make an application.
Was the application lodged within time?
I turn now to whether the application was lodged within time. Section 366(1) of the Act requires that a General Protections application be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.
The Commission received the Applicant’s application on 17 May 2022, this was 24 days outside of the requirement under s.366(1) of the Act. For the Applicant’s application to proceed, it is necessary for him to obtain an extension of time under s.366(2) of the Act. The Respondent opposes the granting of such an extension.
Should a further period be granted?
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General Protections application involving dismissal be made:
“(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.”
The test of “exceptional circumstances” establishes a high barrier for an applicant.[4] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:
“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.” [5]
Given that the Applicant was unrepresented at the hearing, I specifically asked the Applicant to address each of the factors set out in s.366(2) of the Act.
Reason for the delay (s.366(2)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[6] or a reasonable explanation.[7] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[8] the Full Bench noted at [39]:
“The absence of any 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 the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
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. 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.[9]
The Applicant asserts that he did not know that his Unfair Dismissal application was subject to the minimum employment period, requiring him to submit a General Protections application. The Applicant claims it was the incorrect filling that delayed this application. It is to be noted that he submitted the Unfair Dismissal application after the 21 days. His reason for the delay was the difficulty he had in getting information on how to apply, the limited resources he had, combined with looking for work, and finding work which took him to a remote location.
The Applicant struck me as a genuine and down-to-earth person who had a sense that he had been the subject of great injustice. He clearly found the process of turning his protestations into an application before this tribunal challenging. He took it upon himself to try and find out how to make an application in between the demands of finding work and supporting his family. Although he on occasions had limited access to the resources that would assist him – internet access and a mobile phone – he was unable to make the first unsuccessful unfair dismissal application within time. His second attempt to prosecute his matter should have only taken a few days if that to complete and submit a Form F8. It needs substantially the same information and if he had done so then he may have been in a better position to argue his case for an extension.
Unfortunately, he did not prioritise the making of the first or the second application in circumstances where Parliament has provided for a strict time limit to be observed. The timeline that is rigorously observed is made clear on both the information pages for Unfair Dismissal and General Protections. If pressed for time he could have made his application online or indeed he could have telephoned the Commission and had the form completed during the phone call. He did neither of these and provided many reasons for his delay, but none of the reasons provided individually nor collectively would amount to being exceptional. It is common for life to be thrown into difficult and turbulent waters upon a dismissal. However, the facts that the Applicant recounted in the hearing are commonplace during this time of transition and do not amount to being exceptional.
I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”. This factor weights against an extension being granted.
Action taken to dispute the dismissal (s.366(2)(b))
The Applicant did not dispute his dismissal with the Respondent until he filed the Unfair Dismissal, followed by this General Protections application. No evidence was provided that the Applicant took any steps to dispute the dismissal within the 21-day period. This factor therefore does not weigh in favour of an extension of time.
Prejudice to the employer (s.366(2)(c))
The Applicant submitted that allowing the extension of time would not prejudice the employer.
The Respondent has submitted that they should not be put to cost of defending an application clearly out of time.
This factor I weigh as against an extension of time.
Merits of the Application (s.366(2)(d))
In Kornicki v Telstra-Network Technology Group,[10] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“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.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[11]
The material provided by the Applicant purports to show that he was bullied and targeted by his supervisor and team members for identifying potential safety issues. Although his submissions are convoluted and unclear, there may be some merit to his matter.
I weight this factor as positive.
Fairness as between the Applicant and other persons in a like position (s.366(2)(e))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[12]
The parties did not draw to my attention to any relevant 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. This is ultimately a neutral factor in my determination.
Conclusion
I am not satisfied that exceptional circumstances exist to warrant the granting of an extension of time.
Accordingly, I order that the application is dismissed. Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618.
[3] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268 at [48].
[4] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[5] [2019] FWC 25, [13].
[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[7] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[8] [2018] FWCFB 901.
[9] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[10] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[11] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[12] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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