David Connolly v WaterWorld Pure Drinking Water Pty Ltd T/A WaterWorld Pure Drinking Water Pty Ltd
[2018] FWC 4070
•9 JULY 2018
| [2018] FWC 4070 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
David Connolly
v
WaterWorld Pure Drinking Water Pty Ltd T/A WaterWorld Pure Drinking Water Pty Ltd
(C2018/2546)
COMMISSIONER PLATT | ADELAIDE, 9 JULY 2018 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed.
Summary
[1] Mr David Connolly has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by WaterWorld Pure Drinking Water Pty Ltd T/A WaterWorld Pure Drinking Water Pty Ltd (Waterworld) on 16 April 2018 in contravention of the general protections provisions of the Act.
[2] This application was lodged on 11 May 2018.
[3] Mr Connolly’s application did not identify that it was made beyond 21 days from the date of dismissal. However, in his application he does make reference to not being aware of the 21 day timeframe and provides the following explanation:
• He had been corresponding with his employer in relation to his separation certificate;
• That he had made the application as quickly as possible; and
• He had been attending his Doctor to discuss the situation which he had found extremely stressful.
[4] Waterworld did not file a form F8A Employer Response and the jurisdictional issue in relation to the application being made out of time was raised with the parties by the Commission.
[5] On 25 June 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a Hearing by telephone conference on 9 July 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties who were directed to provide an outline of argument of their respective positions.
Submissions
[6] Mr Connolly provided written submissions which are relevantly summarised as follows:
• The application was only filed a “couple of days outside the required 21 days”;
• It was not the first thing he thought to do as he had to notify Centrelink immediately;
• He contacted his Doctor on 19 April 2018 in relation to stress related to work and his resignation (medical certificate provided);
• He contacted Waterworld by email to request a separation certificate with his start and end date of employment; and
• The lateness of the application would not disadvantage the employer.
[7] Waterworld provided written submissions and various attachments which were largely directed at the merits of the application, however, in relation to the extension of time issue those submissions can be relevantly summarised as follows:
• Mr Connolly resigned from his position on his own accord and the application is without merit; and
• That the claim and accompanying statements by Mr Connolly “seem dubious and are untrue”.
[8] A Hearing was conducted by way of telephone on 9 July 2018. A sound file record of the hearing was kept. The Applicant was represented by himself and Mr Con Koumoulas, Managing Director of Waterworld, represented the Respondent.
[9] The Applicant reiterated the information contained in his submissions and further advised:
• The breach of s.340 and s.351 arose as a result of him being asked to work more than 59 hours per fortnight (at which point his employment would have an adverse effect on his Centrelink benefits). In some fortnights he was asked to work up to 74 hours; and
• It was his decision to resign but that this was as a result of being required to work additional hours.
[10] The Respondent reiterated its submissions and (in effect) contended that the claim had no merit and no exceptional circumstances existed. In support of this, Mr Koumoulas contended:
• That Mr Connolly had resigned on a number of previous occasions and within a short time had resumed employment;
• He gave Mr Connolly work when it was available;
• He rejected any allegation of bullying Mr Connolly; and
• In his view, Mr Connolly resigned of his own free will.
[11] Mr Koumoulas submitted statements from Douglas Scutts, Cullen Simpson, Nick Klas and Alex Tanoff – these statements went to the merits of the claim. In light of the fact that the persons making the statements were not available for cross examination and that the information contained in the statements went to the merits and not the jurisdictional issue before me, I have not relied on the information contained in those statements in reaching my decision in this matter.
[12] Mr Koumoulas also submitted a number of text message exchanges between himself and Mr Connolly – a review of the contents support the position that Mr Connolly resigned and had done so previously.
Applicable Law
[13] Section 366 of the Act relevantly states:
“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.”
[14] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd1 which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
Consideration
[15] This general protections application by Mr Connolly was made 4 days outside of the 21 day time limit and therefore can only be pursued if this time limit is extended.
[16] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
[17] Ignorance of the timeframe does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time: Rose v BMD Constructions Pty Ltd.2
[18] Mr Connolly has submitted that the delay was short and he was focussed on things other than on the pursuit of this claim.
[19] Mr Connolly also contended that he was suffering from depression at the time, however, the letter from Dr Charan Jeet dated 2 July 2018 states that on 19 April 2018 Mr Connolly reported “stress related to work and his resignation”. The letter does not provide a diagnosis of depression and does not provide any basis which would explain why Mr Connolly lodged his claim late. It is common for employees to suffer shock and trauma as a result of dismissal from employment: Rose v BMD Constructions Pty Ltd.3
[20] If Mr Connolly has failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters. 4
[21] Based on the material before me Mr Connolly has not satisfactorily explained any of the delay.
Any action taken by the person to dispute the dismissal
[22] Whilst Mr Connolly corresponded with Waterworld after 16 April 2018, the communication related to him seeking to obtain a separation certificate. In my view, the communication did not contest the dismissal.
Prejudice to the employer (including prejudice caused by the delay)
[23] There is no submission that the granting of an extension of time represents prejudice to Waterworld.
The merits of the application
[24] In terms of the merits of the application, my preliminary view is that Mr Connolly resigned and that there does not appear to be a sound basis for a complaint that Waterworld has breached either s.351 or s.340 of the Act. It appears to me that Mr Connolly’s key complaint was that the working of the hours offered by Waterworld would negatively impact on his Centrelink benefits and that he voluntarily resigned. Accordingly, I have regarded the merits as a factor which weighs against the extension of time.
Fairness as between the person and other persons in a similar position
[25] Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
[26] For the reasons I have set out above, I am not satisfied that Mr Connolly’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order5 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
D Connolly on behalf of the Applicant.
C Koumoulas on behalf of the Respondent.
Hearing details:
2018.
Adelaide:
July 9.
1 [2011] FWAFB 975.
2 [2011] FWA 673.
3 [2011] FWA 673.
4 [2018] FWCFB 901.
5 PR608868.
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