Daniel O'Meara v MDA National T/A MDA National Limited

[2016] FWC 501

[2016] FWC 501

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Daniel O'Meara
v
MDA National T/A MDA National Limited
(C2015/6791)

COMMISSIONER WILSON MELBOURNE, 28 JANUARY 2016

Application to deal with contraventions involving dismissal - jurisdictional objection - whether extension of time should be granted.

[1] The Applicant, Mr Daniel O’Meara, made an application to the Fair Work Commission (the Commission) on 26 August 2015 to deal with an unlawful termination dispute pursuant to s.773 of the Fair Work Act 2009 (the Act). On 3 September 2015 an email was sent to Mr O’Meara by my chambers, drawing s.723 of the Act to Mr O’Meara’s attention, which provides;

723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

[2] The 3 September 2015 correspondence requested Mr O’Meara to indicate whether he wished for his s.773 application to proceed, or whether he wished to discontinue the application to pursue a general protections application involving dismissal pursuant to s.365 of the Act.

[3] The s.773 application was made on 26 August 2015 and disclosed a termination of employment that was likely to have taken effect on 4 August 2015.

[4] A s.773 application is required to be made within 21 days after the employment was terminated, or within such further period as the Commission allows under s.774(2) of the Act. As such, the application was likely out of time.

[5] An application was then made by Mr O’Meara under s.365 of the Act on 29 September 2015. He had not, at that time, discontinued the s.773 application. The s.365 application refers to the same termination of employment as that in his original application, however it also refers to additional matters; including that he had originally lodged an unlawful termination application, as well as providing further particulars about the circumstances of the dismissal and Mr O’Meara’s personal grievances whilst in the employ of the Respondent, MDA National.

[6] A conference between the parties was held on 7 October 2015; however it was unsuccessful in its attempts to resolve the dispute. The Applicant’s concurrent applications were discussed in the conference. I advised Mr O’Meara of the requirement to discontinue his s.773 application and that, given his indication in conference of his intention to pursue his s.365 application, and given that it was lodged some eight weeks after the termination, he would need to seek an extension of time for the lodgement of his general protections application pursuant to s.366(2) of the Act. This necessity arises under s.366(1) of the Act, which provides that Mr O’Meara’s general protections application would need to have been lodged by 25 August 2015 in order for it to be within the 21 day period allowed for under that section of the Act.

[7] The s.365 application as filed was made on 29 September 2015, and the form itself is dated 7 September 2015, however the lodgement email sent on that date refers to an earlier attempt at lodgement being made on 26 August 2015.

[8] While Mr O’Meara may have attempted to make an earlier application, the Commission has no record of lodgement, or attempts at lodgement, being made by Mr O’Meara on 26 August 2015, and so I find that the date the application was lodged is 29 September 2015. By that date, the Applicant’s application was 35 days out of time. Had the application been made on 26 August 2015, it would, in any event, have been one day out of time.

[9] Directions were issued to the parties on 12 October 2015 for the filing of written material regarding the extension of time issue. Mr O’Meara did not comply, at least initially, with the direction to file material. Solicitors for the Respondent sought dismissal of the application on the basis of Mr O’Meara’s failure to comply with the directions of the Commission.

[10] Correspondence was then sent by the Commission to the Applicant, highlighting the non-compliance with directions, and drawing to the Applicant’s attention the provisions of s.587 of the Act, which outline when the Commission may dismiss applications. An explanation was sought from the Applicant for his non-compliance.

[11] After consideration of both the explanation provided by Mr O’Meara, as well as the views of the Respondent, I considered it appropriate in the circumstances to grant a further period for Mr O’Meara to file written material regarding the extension of time issue, and determined not to grant the Respondent’s application for dismissal of Mr O’Meara’s application. I do, however, considerer it appropriate to take into account the material filed at this juncture by both the Applicant and the Respondent in forming this decision.

[12] On this second occasion, the Applicant filed, by the date stipulated, some 12 forwarded emails, without providing an outline of submission or any witness evidence, as was directed. Neither party sought a hearing on the matter, nor did I consider one to be required. Accordingly, this matter has been determined on the papers filed by both parties.

[13] For the reasons outlined below, I do not consider there to be exceptional circumstances that would warrant a further period for the making of Mr O’Meara’s application.

Legislative scheme

[14] Relevant to the Commission’s consideration of this question are the provisions of s.366 of the Act;

366 Time for application

(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).

(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.

Consideration

[15] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five criteria outlined in s.366(2). The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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”.    1

[16] I now turn to consider each of the criteria as set out in s.366(2) of the Act;

The reason for the delay

[17] I am required to consider whether there is a credible reason for the whole of the delay in making the application. 2 The Commission first alerted Mr O’Meara of what appeared to be an incorrectly lodged application on 3 September 2015. It was not until 29 September 2015 that Mr O’Meara lodged his general protections application, a lapse of 26 days of itself, and some 35 days after the date required for the application to be filed within time.

[18] No cogent reason has been advanced by Mr O’Meara for the delay in filing his general protections application. While it would be apparent that the delay would be connected with having initially incorrectly lodged an unlawful termination application (which was itself out of time), a credible reason for the whole of the delay is not put forward. Mr O’Meara has not advanced any reason for the delay, nor has he provided any evidence which would support his case. Accordingly, I cannot but find this criterion to weigh against the Applicant.

Any action taken by the person to dispute the dismissal

[19] It is well established, at least in the context of unfair dismissal applications, that action taken by an employee to contest their dismissal, other than lodging a dismissal application, may favour granting an extension of time. 3

[20] I consider this principle has application to the consideration of a grant of further time for making a general protections application.

[21] The material before me does not indicate any endeavour on the part of Mr O’Meara to dispute his dismissal. The only material before me of relevance in this regard is the witness statement of Ms Jennifer Park, Executive Manager, People and Support, for MDA National. Ms Park’s statement provides that Mr O’Meara was absent from the workplace on the date of his termination; that after being notified of his dismissal on 4 August 2015 Mr O’Meara had arranged to meet with the Respondent’s Executive Manager Insurance, Mr Luke Thomson, but that Mr O’Meara failed to attend this meeting. The only other contact between the parties was a telephone discussion between Ms Park and Mr O’Meara, on 7 August, discussing the Applicant’s personal belongings and payslips.

[22] After consideration of the material before me, which does not suggest any attempt to contest the termination by the Applicant, I consider this criterion to not resolve in Mr O’Meara’s favour.

Prejudice to the employer

[23] Other than the ordinary prejudice to an employer attendant with responding to an application itself, the Respondent argues, albeit without ample particularity, that it will suffer further prejudice should the Commission exercise its discretion in favour of granting the Applicant an extension of time. The Respondent also notes that the Applicant’s conduct, to date, has caused it to incur additional costs and inconvenience.

[24] The consideration by the Commission in relation to this criterion is, however, a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 4 In the absence of particularised prejudice as alleged by the Respondent, I am unable to find in favour of the Respondent in consideration of this criterion. Accordingly, I consider this criterion to be neutrally weighted.

The merits of the application

[25] This criterion requires consideration of the merits of Mr O’Meara’s general protections application. On the material provided to date, the merits of the application appear thin. While I am conscious of the Commission’s largely conciliatory role in these applications, the application, and the thrust of the accompanying documents, appears largely misguided. They relate to Mr O’Meara’s imprecise contention that he was unfairly dismissed after a performance management process.

[26] Mr O’Meara’s application advances several unformed allegations of contravention of the provisions of Part 3-1 of the Act, including the taking of adverse action against him by the Respondent for exercising his workplace rights and discrimination based on his medical conditions. However, in the absence of any written argument or evidence put forward to demonstrate how either contravention has taken place, I am unpersuaded that Mr O’Meara would be able to succeed with his application if the matter were permitted to proceed. On the basis of the material filed to date it is unlikely that the application would have a reasonable prospect of success.

[27] The Respondent submits that the application goes towards matters of fairness and reasonableness of the processes followed in the Applicant’s termination, and that it does not demonstrate that the adverse action taken against the Applicant, specifically his dismissal, was taken for a prohibited reason. On the very limited material put forward by the Applicant, I cannot but agree with their submission as to the apparent merits of the application.

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

[28] As to this criterion I am required to take into account the subject of fairness as between Mr O’Meara and other persons who may have been dismissed and who allege a breach of the Act’s general protections provisions, that is, persons in a like position. In the circumstances of this matter, I am of the view that it would be unfair to other applicants in a like situation to grant an extension of time to Mr O’Meara for the lodgement of his application. Mr O’Meara’s conduct in this matter is characterised by his failure to demonstrate any application of his circumstances to the statutory criteria and his failure to provide any reason for the late filing of his application. The belated filing of 12 emails, the relevance and bearing of which has not been articulated, coupled with the absence of an accompanying written argument or reasons as to why the application was out of time, leads me to determine that the grant of an extension to Mr O’Meara would be unfair to other applicants in a like position when such persons may not be able to obtain such an extension.

[29] Accordingly, I find this criterion to resolve against Mr O’Meara.

[30] Having considered the material on the file, and having considered the circumstances surrounding the matter, I am not satisfied that exceptional circumstances exist to allow a further period for the lodgement of the application with the Commission.

[31] The application is dismissed, and an Order so doing is issued in conjunction with this decision.

COMMISSIONER

 1   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 2   Cheval Properties v Smithers, (2010) 197 IR 403, at [18]; [2010] FWAFB 7251.

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

 4   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 [16].

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