Darren Cook v Patterson Building Group Pty Ltd

[2020] FWC 2407

[2020] FWC 2407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Darren Cook
v
Patterson Building Group Pty Ltd
(C2019/7174)

COMMISSIONER YILMAZ MELBOURNE, 8 MAY 2020

Application to deal with a general protections dispute involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied – application dismissed.

[1] On 22 November 2019, Mr Darren Cook lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Cook was employed as a project manager by Patterson Building Group Pty Ltd (PBG) on 20 August 2018, until his termination of employment on 2 October 2019.

[2] On 19 October 2019, Mr Cook filed an unfair dismissal application pursuant to s.394 against PBG. PBG objected to the application on the grounds that the applicant was an award/ agreement free employee and his salary exceeded the high-income threshold, therefore he was excluded from the protection of the unfair dismissal jurisdiction. Mr Cook obtained legal advice on 21 November 2019, which led to the withdrawal of the unfair dismissal application and lodgement of the general protections matter. The unfair dismissal application was lodged within the statutory time frame of 21 days, but the general protections application, which is currently before me, was not.

[3] Mr Cook alleges his termination of employment is an adverse action stemming from health and safety issues he raised in August 2019 in relation to 5 projects that he managed.

[4] PBG opposes the general protection application, submits that the termination of employment is not in contravention of the general protections provisions of the Act, and further objects to the extension of time for the application.

[5] Both parties were granted leave for legal representation.

[6] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 30 days after the 21-day statutory time limit.

Applicant’s submissions

[7] Mr Cook submits he has worked in the building industry in the position of senior project manager or construction manager since 2001 and has a well-regarded reputation 1.

[8] Mr Cook submits that he attended monthly meetings with the executive team and the board of directors and received feedback that he was performing well until July 2019 2. In the two months prior to his termination of employment, Mr Cook submits his role became more difficult with:

•  Several projects undertaken without the required site management resources 3

•  His unanswered requests for resources in his June and July reports 4

•  His workload becoming excessive and dangerous to himself during July-September 5

[9] Mr Cook submits he raised the health and safety issues on 15 August 2019 with the construction manager and then again to both the construction manager and managing director on 16 August 2019 6. He submits he advised PBG that 5 projects would need to be stopped immediately due to alleged inadequate safety measures and staffing7.

[10] He further submits that he was progressively removed from projects and while he admits to receiving the resources of a site manager, he submits this manager was temporary and could only work limited hours. He was not granted resources for 2 projects on the basis that they were nearly complete. Despite the action by his employer to address his concerns, he submits he was dismissed for serious misconduct some 6 weeks after raising them 8.

[11] In his application, Mr Cook contends that PBG contravened s.340 protection of the Act, on the basis that he was progressively removed from projects and subsequently terminated for raising safety issues, which is a workplace right. In addition, it is alleged that PBG refused to comply with its obligations pursuant to s.117 of the Act as no notice was paid 9.

Respondent’s submissions

[12] PBG rejects that Mr Cook was terminated for raising safety issues, or that he was progressively removed from projects and submits he was terminated for serious misconduct as contained in the letter of termination 10. The letter of termination refers to Mr Cook’s conduct with clients, mismanagement of subcontractors, inaccurate reporting internally and to clients, and issuing variations to clients that are incorrect and damaging to the business11.

[13] PBG submits that on one project, the client demanded that Mr Cook be removed from the project and in another the client expressed relief when he was removed.

[14] PBG submits that the correspondence of Mr Cook of 16 August 2019 does not expressly relate to safety concerns, it refers to Mr Cook’s inability to continue to accept the risk “in continuing to manage St Patrick’s without a site manager”. PBG submits that regardless of Mr Cook’s personal intent behind his email, it responded by allocating a site manager on the next working day. In relation to this point, PBG submit that its actions cannot be described as adverse action.

[15] It submits Mr Cook cannot establish that his termination of employment was because he allegedly exercised a workplace right, and in respect of the notice period, it submits that under clause 17.5 of the contract of employment, he was not entitled to notice 12.

Consideration

[16] On 12 February 2020, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

[17] General protections applications involving dismissal must be made within 21 days.

[18] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

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

[19] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 13 where it was held that:

“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 regular occurrence, even though it can be a on 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

[20] I now turn to Mr Cook’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[21] The general protections involving dismissal application was lodged with the Commission on 22 November 2019.

[22] Mr Cook submits that he contested his dismissal and filed an unfair dismissal application after talking to friends and colleagues and after he looked at the Commission’s resources. However, it was not until he obtained legal advice on 21 November 2019, that he became aware that the application should not have been filed. Consequently, Mr Cook withdrew the unfair dismissal application and filed the general protections application 15. It is apparent that the unfair dismissal application was filed on 15 October 2019 and withdrawn on 22 November 2019, the same day the general protections application was filed. This means the application was filed 30 days after the statutory 21-day time limit.

[23] PBG submits that Mr Cook fails to explain periods of the delay and the explanation provided is insufficient to grant an extension of time. Their submissions refer to written communication from the respondent’s legal advisers on 4 November 2019 and then the unfair dismissal response filed and served on 8 November 2019 which raised the jurisdictional objection to hear the unfair dismissal application 16. Further PBG raise correspondence from Vice President Catanzariti’s Chambers dated 15 November 2019 asking Mr Cook to provide a statement in relation to the objection raised on jurisdictional grounds by the Respondent17. The point raised by PBG is that Mr Cook failed to explain the delay, particularly in light of the events during November when the jurisdictional objection was brought to his attention 3 times.

[24] PBG relies on the decision of Commissioner Wilson in Young v Braziliant Pty Ltd 18, where he found ignorance of the statutory time limit, unrepresented individuals and failure to access or read the materials on the Commission’s website including making the wrong decision over the type of application are not exceptional circumstances. They rely on this decision as authority in respect of this matter.

[25] Mr Cook failed to provide reasons for the delay in the application other than incorrectly filing an unfair dismissal application and not understanding the correspondence from the respondent’s legal representative 19. He admitted to reading the materials on the Commission’s website and completing the Form F2 on his own. Even if he failed to closely read the material on the website, the Form itself under the heading “About unfair dismissal” explains that “you must be eligible to make an application”. This point is linked to further information, and even if this is missed, the same section goes on to note the relevance of the high-income threshold.

[26] While Mr Cook need not necessarily provide a credible explanation for the whole period of the delay, an explanation is prudent. Mr Cook’s additional statement makes reference to not having funds for legal representation and having to wait for a meeting with Mr Potts of Kells Lawyers on 21 November 2019.

[27] His explanation that he accessed the Commission’s website for information but did not read it closely before filing the unfair dismissal application, does not weigh in his favour. Mr Cook submits he was not aware of the correct application until he obtained legal advice. There is nothing unusual, out of the ordinary or uncommon with applicants raising ignorance or lack of legal representation as the reason for the delay.

[28] Mr Cook received written correspondence from PBG’s legal representative after filing his unfair dismissal application which informed him of the jurisdictional objection. The same jurisdictional objection was brought to his attention when PBG filed its unfair dismissal response. Further correspondence was sent from Vice President Catanzariti’s Chambers on the same issue. Mr Cook submits the reason for the delay in respect of this period is that he tried to find the answer, he provides no further particulars or evidence to support this submission. He submits that on 11 November 2019, he contacted Mr Potts of Kells for an appointment.

[29] The authority relating to explanations for the delay is that it does not need to be a credible explanation for the whole period, but an absence of an explanation will weigh against in the assessment of exceptional circumstances 20. Mr Cook had been on notice regarding the status of his unfair dismissal application since early November and submits he was unaware of the correct application until 21 November 2019 after having obtained legal advice. I am not satisfied that this explanation individually or in combination with the other explanations weigh in Mr Cook’s favour, in respect to exceptional circumstances for an extension of time.

Steps taken to dispute the termination

[30] Mr Cook alleges that he contested his dismissal and the unfair dismissal application is evidence of this.

[31] PBG submits that the unfair dismissal and general protections applications are vastly different 21. Further it submits that while it does not concede either application, it also submits that reframing the unfair dismissal application does not make the current application fit within the general protections jurisdiction. For this reason, PBG submit that this consideration should not be in the Applicant’s favour, or at least should be a neutral consideration.

[32] I find this consideration does not weigh in Mr Cook’s favour. Mr Cook submitted no evidence that his dismissal was contested in any way other than by filing the unfair dismissal application under the Act. Further, when Mr Cook was put on notice that PBG objected to the application on the basis that the jurisdiction provided no protection for him, he took no other action to contest his dismissal until filing a further application under the Act. There is no evidence that PBG were on notice that Mr Cook had a dispute with his termination that would lead to a further application in the Commission. Merely filing an application under the Act as an alleged step in disputing the termination does not weigh in his favour in respect of this consideration 22.

Prejudice to the employer

[33] Mr Cook submits there is no evidence that the employer has suffered any prejudice and therefore it should be viewed as a neutral consideration.

[34] PBG submit it has suffered prejudice and will suffer further prejudice should the extension of time be granted. PBG submit it has expended time and cost in responding to the unfair dismissal application and the subsequent general protections application. PBG rely on the decision of Deputy President Asbury in Nicolas JR v Nortask Pty Ltd (Nortask) 23, where she found being forced to respond to two applications was prejudicial. The circumstances in Nortask are that the initial matter was subject to proceedings where the employer defended its position.

[35] While I accept that PBG has incurred cost and inconvenience in responding to the unfair dismissal application, the application did not progress beyond the employer’s written response. The matter was withdrawn following the jurisdictional objection. I accept that in this matter PBG has expended further cost to object to an extension of time in a matter which they submit is almost identical in substance but in another jurisdiction. PBG did not submit compelling evidence of prejudice. Consequently, I am not satisfied that an extension of time will prejudice PBG. However, the absence of prejudice is not a reason to grant an extension and I find this consideration is neutral in the circumstances.

Merits of the application

[36] Mr Cook submits his performance was satisfactory until he began raising concerns with safety and staffing. He submits that he raised safety concerns that are in breach of the Work Health and Safety Act, and as such he was exercising his workplace rights. He submits he does not have access to any work emails to support his submissions but contends that he was dismissed for reasons that include the “fact that he sought to exercise a workplace right” and has the benefit of presumption under s.361 of the Act. He rejects PBG’s position that it dismissed him for serious misconduct. He submits that a “serious or critical examination” of the allegations of serious misconduct cannot be sustained. He submits that his merits of the application are strong and favours an extension of time 24.

[37] Specifically, Mr Cook refers to certain projects that he was managing leading up to his termination of employment, his monthly reports of June 2019 and July 2019 submitted to senior management and the board of directors where he allegedly raised safety concerns, and his workload which he describes as excessive and dangerous to himself in an email he sent to senior staff. No evidence was submitted to support his submissions other than a text message dated 18 October 2019 to Ryan.

[38] Following the outline of submissions of the respondent, witness evidence and other evidentiary material, Mr Cook submitted a further statement 25 which largely disputes the submissions made by PBG’s witness Mr Richardson.

[39] PBG submit that Mr Cook does not have an arguable case, particularly in light of PBG’s evidence 26. It submits that Mr Cook must first establish that he has or has exercised a workplace right pursuant to s.340 of the Act. It submits that its evidence of Mr Richardson, director and Mr Ryan Gild, construction manager, together with the contract of employment, email correspondence, copies of project reports and text messages, demonstrates there is no link between Mr Cook’s requests for resources (which he submits relates to a breach of work, health and safety laws) for his 5 projects and his termination of employment.

[40] While PBG presented evidentiary materials, the merits of the case were not tested. Mr Cook objected to the witness evidence of Mr Richardson but provided no evidence to support his objections. Further, Mr Cook made no submissions nor tendered material to dispute the witness evidence of Mr Gild. Mr Cook did not respond to the monthly project reports relied on by PGB to demonstrate that Mr Cook did not raise any health and safety issues. Mr Cook submits that in certain situations he relied on Mr Gild, therefore the blame should be shared. I note from Mr Gild’s witness statement that he reported to Mr Cook and this was not contested.

[41] The merits are broadly contested which go to the reason for the termination. Mr Cook alleges he was terminated because he raised a workplace right, while PBG allege otherwise. However, not all materials tendered by PBG were contested by Mr Cook which is relevant to the strength of his argument. He alleges that he was terminated because he raised safety issues in breach of the Work Health and Safety Act, yet he did not contest the materials submitted by PBG including and specifically the monthly project reports which do not support Mr Cook’s submissions. Mr Cook failed to establish that he raised the safety issues nor did he articulate the safety issues which are allegedly in breach of work health and safety law. Mr Cook did not establish that he had a workplace right and exercised it.

[42] PGB deny any adverse action and rely on the performance and conduct of Mr Cook for his termination of employment. The evidence submitted by PBG disputes the allegation that Mr Cook had a workplace right and exercised it, particularly because Mr Cook relied heavily on the reports of June and July to advance his position, yet he did not challenge the reports submitted, nor other PBG evidence (other than the witness statement of Mr Richardson). While I am not satisfied that this consideration weighs in Mr Cook’s favour, at best, given the contested positions this consideration may be deemed as being neutral.

Fairness between the person and other persons in a like position

[43] Mr Cook submits that granting an extension is “harmonious with common sense and is consistent with the functions of the Commission” 27.

[44] PBG does not make submissions in regard to this consideration except to raise the cases it had already referenced as guidelines for this matter.

[45] The Commission should not encourage late applications and in considering an extension of time, a departure from considered decisions is unwise. Relevant is the consideration of people in similar situations to Mr Cook. Considering the reasons for the delay and action not taken to dispute the dismissal when compared to like persons in like positions this consideration does not weigh in Mr Cook’s favour.

Conclusion

[46] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar.

[47] I have considered the evidence and submissions against each of the factors set out in s.366(2), and I am not satisfied that there are exceptional circumstances against each of the considerations warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Mr David Potts for the Applicant

Mr Hamish Proctor for the Respondent

Hearing details:

2020
Melbourne
12 February

Printed by authority of the Commonwealth Government Printer

<PR719207>

 1 Exhibit A2 at [3] & [4].

 2 Ibid at [7].

 3 Ibid [8].

 4 Ibid at [10] & [11].

 5 Ibid at [12].

 6 Ibid at [13] & [16].

 7   Applicant’s F8 application form at Q3.1.

 8   Opcit at [14], [15], [19],[20],[21] & [22] and attachment termination of employment letter.

 9   Opcit at Q3.1, 3.2 & 3.3.

 10   Respondent’s Form 8A at Q5.1.

 11   Exhibit R1- attachment letter of termination.

 12 Ibid at [8].

 13   [2011] FWAFB 975.

 14 Ibid at [13].

 15   Exhibit A1.

 16 Exhibit R1 at [6].

 17 Ibid at [8] & [9].

 18   [2018] FWC 6694 at [29].

 19 Exhibit A3 at [30].

 20   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd trading as Richmond Oysters [2018] FWCFB 901 at [13].

 21 Exhibit R1 at [20].

 22 Brodie-Hanns v MTV Publishing Limited [1995] 67 IR 298.

 23   [2014] FWC 5324 at [69].

 24 Exhibit A1 at [5].

 25   Exhibit A3.

 26 Exhibit R1 at [26].

 27 Exhibit A1 at [6].