Daniel Shoveller v Cameron Dodds

[2019] FWC 3230

[2019] FWC 3230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Daniel Shoveller
v
Cameron Dodds
(C2019/1475)

DEPUTY PRESIDENT BOYCE SYDNEY, 10 MAY 2019

Application to deal with contraventions involving dismissal — application filed out of time — not a strong case on merits (liability or damages) — lengthy delay — no exceptional circumstances — extension of time refused.

Overview

[1] On 6 March 2019, Mr Daniel Shoveller (“Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth)(“the Act”). The Applicant claims that his employment with Square Myle Pty Ltd ATF Square Myle Trust (“the Respondent”) was terminated by the Respondent on 21 December 2019 in contravention of Part 3-1 of the Act (“the Application”).

[2] 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 Fair Work Commission (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. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.2

[3] The Applicant acknowledges that he lodged his application 51 days outside of the statutory time limit. To be within time, the Applicant should have lodged his application on or before 14 January 2019.

[4] On 3 May 2019, I convened a hearing to determine whether to allow the Applicant an additional period of time within which to lodge his application.

[5] At this hearing, the Applicant represented himself, and the Respondent was represented by Mr Sean Daly, Solicitor, of Kent McRae Lawyers. I granted Mr Daly permission to appear as the Respondent’s legal representative pursuant to s.596 of the Act on the basis that the proceedings would be conducted more efficiently with him involved (i.e. on the basis that both parties with no legal experience being unrepresented would make the conduct of the proceedings less efficient as compared to having at least one of the parties legally represented). The Applicant did not oppose permission being granted to Mr Daly. 3

[6] I have determined that the application should be dismissed. These are the reasons for that decision.

The employment and the dismissal

[7] The Applicant worked for the Respondent from February 2016 to 21 December 2018 on a casual basis. 4

[8] The evidence is that the Applicant resigned his employment via text message to Mr Cameron Dodds, Director of the Respondent, on 21 December 2018. The text message reads:

“the electrics and your other gear is in the bin in front of [sic] shed thanks for the work im [sic] finished up”. 5

[9] Mr Dodds deposes that the only contact the Respondent has had with the Applicant since 21 December 2018 is when the Applicant attended the workplace to return a ladder and to request a separation certificate (between around 15 and 18 January 2019). 6

Matters to be taken into account

[10] 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.”

[11] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.  7 A decision whether to extend time under s.366(2) involves the exercise of a discretion.8

[12] 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  9 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)

[12] 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. 10

[13] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[14] 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. Necessarily, the period of the delay with which the explanation is concerned is in 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. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 11 

[15] The Applicant submitted that the delay in bringing his application was for the following reasons (by way of summary):

(a) he was waiting for Safe Work NSW Officers to return from leave. He asserts that such officers were on leave between 21 December 2018 and 5 January 2019;

(b) he was waiting for Safe Work NSW to investigate and/or finalise the complaint he had made to them about the Respondent and its use of particular pesticides or herbicides in the workplace (whilst the Applicant was present at the workplace) that had (allegedly) made the Applicant unwell;

(c) he feared that he would not obtain other local employment if he disputed his dismissal;

(d) his wife was working and he had child care responsibilities; and

(e) he had various personal, family and financial issues that he was juggling and/or dealing with.

[16] The foregoing reasons for delay provided by the Applicant are not satisfactory. They do not weigh in favour of a finding as to exceptional circumstances. Even if they be true and credible, they have been held to be unexceptional. 12 Importantly, other than in a general, non-specific, and roundabout way, these reasons do not explain the 51 day delay in the Applicant lodging his F8 application with the Commission.

[17] I note that the Respondent’s evidence is that the Applicant made no complaint to Safe Work NSW until 26 March 2019 (some 19 days after filing his application with the Commission). 13 The Respondent was not notified of this complaint until 5 April 2019, and an inspection of the Respondent’s workplace in respect of the complaint occurred on 16 April 2019.14 This evidence completely disposes of the Applicant’s reasons for delay as set out at paragraphs [15](a) and (b) above.

Action taken by the Applicant to dispute the dismissal

[18] There is no evidence of the Applicant contacting the Respondent to dispute his dismissal between 21 December 2018 and the 6 March 2019. Indeed, the evidence is to the contrary. 15 This issue thus does not weigh in favour of the Applicant, or a finding as to exceptional circumstances.

Prejudice to the employer

[19] Although the Respondent made some short submissions as to likely prejudice to the Respondent as a result of the delay in the Applicant lodging the application, I consider the issue of prejudice to the Respondent a neutral consideration in this matter.

Merits of the application

[20] The Applicant accepts that he resigned from his employment on 21 December 2018, but says that he was forced to do so (i.e. had no other choice but to resign) because the Respondent refused to deal with his complaints about its use of particular pesticides in the workplace. There is therefore an issue as to whether “adverse action” has been taken by the Respondent against the Applicant by way of “dismissal”. 16

[21] It is not readily apparent to me that the Applicant was forced to resign having regard to the test set out in Spencer v Dowling (1997) 2 VR 127 (at 160). Importantly, the evidence is that the Applicant did not raise, or otherwise communicate with the Respondent, his reasons for resignation post 21 December 2018. 17 Seeking to raise his concerns as to the use of pesticides in the workplace, with a third party (Safe Work NSW), without the Respondent being aware that such concerns were being raised with Safe Work NSW until well after 21 December 2018 (i.e. 5 April 2019), is not to the point.

[22] Further, putting aside the question of whether adverse action was indeed taken by the Respondent against the Applicant, but assuming that it has, I do not consider the Applicant to have a particularly strong case, on the question of liability or damages.

[23] In relation to liability, the Applicant’s alleges that the reason he was dismissed (forced to resign) was because he purportedly made complaints in relation to a workplace law/s (e.g. under OH&S legislation) and/or in relation to his employment (i.e. the use of particular pesticides or herbicides in the workplace that allegedly made him unwell).

[24] However, it is not clear, even taking into account the reverse onus, that such complaints could have been the real or an operative reason/s for the Applicant’s dismissal in circumstances where the Applicant accepts that he resigned his employment (whether such resignation was forced upon him or not). Further, the Respondent denies that any such pesticides or herbicides were applied when the Applicant was present at the workplace (i.e. somewhat undercutting the general credibility of the basis of the complaint itself).

[25] In relation to damages, the Respondent argues that even taking the Applicant’s case at its highest, and assuming liability for contravention of Part 3-1 of the Act by the Respondent in dismissing the Applicant because of a prohibited reason, the Applicant ought not be compensated for any contravention of the Act. This is submitted to be so in circumstances where the Applicant left the workplace and did not return or make contact within, on any view, a reasonable timeframe post 21 December 2019, and was a casual employee (able to be terminated on short notice).

[26] Although I do not make findings of fact or law in relation to the merits of the Applicant’s application, on the material and evidence before me, in my view, the merits do not weigh in favour of the Applicant on the question of whether adverse action was indeed taken by the Respondent against the Applicant, or on questions of liability and damages.

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

[27] Neither party made any submission on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case. Consequently, this matter is a neutral consideration in the present circumstances.

Conclusion

[28] As is evident from the analysis above, the preponderance of matters that must be taken into account weigh against a conclusion that there are exceptional circumstances warranting an extension of time. None of the factors weigh against this conclusion, and two factors weigh neutrally. I am therefore not persuaded that there are exceptional circumstances warranting an extension of time. The Applicant did not raise any issue which might persuade me to exercise my discretion otherwise notwithstanding that I might conclude that there are no exceptional circumstances. Nor am I aware of any persuasive discretionary consideration which would warrant an alternative conclusion.

[29] The request for an extension of time is refused and, accordingly, the Applicant’s application (by way of Form F8) will be dismissed. An order to this effect will be issued accordingly.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for himself.

Mr Sean Daly, Solicitor, Kent McRae Lawyers, appeared for the Respondent.

Hearing details:

3 May 2019

Printed by authority of the Commonwealth Government Printer

<PR708174>

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

 2   See s.36 Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009; see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

 3   The Applicant did not raise any issue of “fairness” on the basis that he either, (a) was unable to represent himself effectively at the hearing, or (b) that such representation (of the Respondent) would occasion unfairness upon him at the hearing.

 4   Exhibit R1: Affidavit of Cameron Dodds affirmed 24 April 2019 at [2]

 5   Exhibit R1: Affidavit of Cameron Dodds affirmed 24 April 2019 at [3]

 6   Exhibit R1: Affidavit of Cameron Dodds affirmed 24 April 2019 at [4]

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

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

 9   [2011] FWAFB 975.

 10   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).

 11   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.

 12   The Applicant v Origin Energy[2010] FWA 3181 (at [17]); Aaron Smith v Signature Security Group[2010] FWA 7803 (at [15]-[20])

 13   Exhibit R1: Affidavit of Cameron Dodds affirmed 24 April 2019 at [5]

 14   Exhibit R1: Affidavit of Cameron Dodds affirmed 24 April 2019 at [5]; The Respondent was later cleared by Safe Work NSW in respect of the complaint (see Respondent’s Closing Reply Submissions)

 15   Exhibit R1: Affidavit of Cameron Dodds affirmed 24 April 2019 at [4]

 16 See s.12 and s.386 of the Act.

 17   Exhibit R1: Affidavit of Cameron Dodds affirmed 24 April 2019 at [4]