Damon Gable v Industrial Recruitment Partners Pty Ltd T/A Irp Pty Ltd

[2015] FWC 5777

[2015] FWC 5777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Damon Gable
v
Industrial Recruitment Partners Pty Ltd T/A IRP Pty Ltd
(C2015/4567)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 20 AUGUST 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 Damon Gable (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 1 July 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Industrial Recruitment Partners Pty Ltd T/A IRP Pty Ltd (IRP – the Respondent) in September 2014 in contravention of the general protections provisions of the Act. As the application had been lodged around eight months outside the statutory timeframe for lodgement, the Commission issued Directions on 15 July 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 application was the subject of a telephone hearing on 13 August 2015. At the hearing Mr Gable appeared on his own behalf, while Mr Adrian Lomman, the Respondent’s Health, Safety, Injury Management and Quality Manager, appeared for the IRP.

[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] According to its website, the Respondent is a “specialised recruitment agent in the manufacturing, distribution, construction, rail and resources sectors” 1.

[5] In his application Mr Gable alleged that he had been dismissed in contravention of s.340 of the Act which concerns, inter alia, adverse action taken as a result of a person having exercised or proposing to exercise a workplace right. However, it is not entirely clear from Mr Gable’s application the precise nature of the general protections contravention upon which he relies, though it appears that Mr Gable alleges that he was dismissed while medically unfit for work and as a result of subsequently making a workers’ compensation claim in respect of an injury he suffered while at work.

[6] For its part, the Respondent in its Form F8A response submitted that Mr Gable was employed on a casual basis and placed in a short-term role at one of its client’s sites in early September 2014. The Respondent further submits that Mr Gable was never dismissed as he alleges but that he abandoned his return to work program after one day at the client site. It appears that Mr Gable suffered a finger injury on 4 September 2014. Mr Gable was declared fit to return to his pre-injury duties by his treating doctor on 30 September 2014. The Respondent submitted that neither it nor its workers’ compensation insurer were able to contact Mr Gable following his injury. Further, the Respondent submitted that Mr Gable failed to comply with his return to work program as required.

[7] Mr Gable subsequently made a workers’ compensation claim in respect of his injury. That claim was the subject of conciliation in March 2015 which led to an in-principle agreement on the settlement of that claim, though it appears that in-principle agreement was not finalised by Mr Gable. In early October 2014 Mr Gable was diagnosed as unfit for work for the period 1 to 5 October 2014 for a separate medical condition. The Respondent submitted that its workers’ compensation insurer reviewed that condition and deemed that it was not related to the initial workplace injury and therefore was not covered under the Applicant’s workers’ compensation claim.

[8] As previously noted, Mr Gable’s general protections application was received by the Commission on 1 July 2015.

The Relevant Legislation

[9] 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

[10] 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

[11] Mr Gable cited three reasons for the delay in lodging his application with the Commission. Those reasons were that he was medically incapacitated, that he was pursuing redress through a number of government complaint mechanisms and as a result of “negligent legal misrepresentation.” In other words, on the last ground Mr Gable effectively submitted that he was not aware that he could make a general protections application.

[12] At the hearing Mr Gable was unable to provide any medical evidence to substantiate his claim that he was medically incapacitated beyond 5 October 2014. Further, Mr Gable was unable to explain why pursuing his claim through other avenues precluded him from lodging his general protections application within the 21 day timeframe. Mr Gable also contended that he was not provided with advice as to his rights under the Act by his legal representatives, though Mr Gable was unable to point to any steps he took to investigate what options may be available to him.

[13] The Respondent submitted that none of the reasons relied upon by Mr Gable constituted exceptional circumstances. Specifically, the Respondent submitted that:

(i) the medical certificate relied upon by Mr Gable indicated that he was unfit for work for the period 1 to 5 October 2014;
(ii) pursuing his claim through a number of government complaint mechanisms did not preclude Mr Gable from lodging his application with the Commission within the 21 day timeframe; and
(iii) ignorance of the capacity to lodge a general protections application with the Commission does not of itself represent an exceptional circumstances within the meaning of s.366 of the Act.

[14] In the absence of any evidence or compelling explanation as to why Mr Gable was unable to lodge his application after 5 October 2014 when his medical certificate expired until it was received by the Commission on 1 July 2015 and no indication that Mr Gable took steps to clarify the options available to him under the Act, the reasons for the delay cited by Mr Gable fall well short of supporting a finding that there were exceptional circumstances in this case.

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

[15] Mr Gable did not address this consideration.

[16] The Respondent submitted that prior to Mr Gable lodging his general protections application it had at no time received either a written or verbal complaint from Mr Gable regarding his alleged termination.

[17] Based on the material before the Commission it appears that Mr Gable did not dispute his alleged dismissal prior to lodging his application. This does not support a finding that there were exceptional circumstances.

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

[18] Mr Gable did not address this factor.

[19] The Respondent submitted that in light of the significant delay in the lodgement of the application and the Deed of Release agreed to in-principle by all parties in respect of Mr Gable’s workers’ compensation claim (a copy of the Deed was provided to the Commission by the Respondent) it would be prejudiced were an extension of time to be granted.

[20] The Deed of Release provides some support for a finding that the Respondent would be prejudiced were an extension of time to be granted. On balance, I consider this factor to weigh against a finding of the existence of exceptional circumstances.

(e) The merits of the application

[21] At the hearing Mr Gable submitted that he exercised his right not to return to work. Beyond that Mr Gable contended that he had been unfairly treated by the Respondent.

[22] The Respondent did not address this consideration.

[23] The limited material before the Commission does not point to Mr Gable having been dismissed by the Respondent. To the contrary, the material supports a finding that Mr Gable chose not to return to work following his injury.

[24] Against that background, the merits of Mr Gable’s application appear less than compelling. This does not support a finding of the existence of exceptional circumstances.

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

[25] Neither party made any submissions in relation to this factor. Accordingly, I consider it to be a neutral consideration.

Conclusion

[26] 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 2 (Nulty) in 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.

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

[27] 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).

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

 1     [2011] FWAFB 975

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