David Lang v Get Qualified Pty Ltd T/A Get Qualified

[2015] FWC 7718

[2015] FWC 7718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

David Lang
v
Get Qualified Pty Ltd T/A Get Qualified
(C2015/5179)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 10 NOVEMBER 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 David Lang (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 21 August 2015. Mr Lang resigned from his employment with Get Qualified Pty Ltd T/A Get Qualified (GQ - the Respondent) on 30 July 2015 after seeking legal advice and in his application contends that he was constructively dismissed by GQ in contravention of the general protections provisions of the Act. As the application had been lodged one day outside the statutory timeframe for lodgement, the Commission issued Directions on 11 September 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 heard on 2 November 2015. At the hearing, Ms Caroline Pellow appeared with permission on behalf of GQ. Mr Lang represented himself at the hearing.

[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] Mr Lang commenced employment with GQ on 23 February 2015 in the role of Learning and Development Manager. In his application Mr Lang contends that the role was offered to him on the basis that it was a full-time ongoing role. However once he commenced in the role the contract of employment provided to him stated that the position was a fixed term position for a period of three months. Mr Lang further contends in his application that throughout his period of employment with GQ he was regularly asked to perform tasks that were outside the scope of his role. This together with the uncertainty associated with the nature of his employment led to tensions between Mr Lang and, among others, Mr Adam Wadi, the Managing Director of GQ. Mr Lang also stated in his application that this situation was stressful for him and was compounded by the disrespectful, dismissive and at times aggressive way in which Mr Wadi spoke to him.

[5] On 30 July 2015 Mr Lang spoke with his lawyer who advised him that he should resign immediately and commence with his application for “constructive dismissal”.

[6] As previously noted, the Mr Lang’s general protections application was received by the Commission on 21 August 2015, one day outside the 21 day statutory timeframe for lodgement specified in s.366(1)(a) of the Act.

The Relevant Legislation

[7] 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

[8] 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

[9] Mr Lang cited the following as the reasons for the delay in lodging his application:

• the considerable amount of professional and personal stress which he endured in the lead up to him ceasing his employment with GQ;



• the complexity of his general protections application against GQ;



• the amount of research and time required to prepare his application;



• his lack of legal experience in preparing such an application;



• a series of highly stressful and personally challenging events, including having to attend family funerals and deal with a family illness as well as his father’s dementia;



• the commencement of a new full-time job that required considerable focus and attention; and



• the difficulties which he encountered in lodging his application with the Commission via its eFiling online application lodgement service.

[10] Mr Lang also pointed to the toxic culture he faced and the highly unprofessional treatment he received while working with GQ. Against that background, Mr Lang submitted that he “constantly dealt with insecurity at the highest levels of management, which didn’t allow for proper democratic processes and constitutional arrangements to work, causing endless confusion and constant reorganisation” which left him completely frustrated and demoralised 1. Mr Lang stated that he felt this incredibly unfair and entirely unjustified.

[11] GQ submitted, among other things, that:

• it must be expected that preparing a general protections application will require some time;



• the fact that Mr Lang lacks legal experience or did not have legal representation does not constitute exceptional circumstances as it is not out of the ordinary for an applicant to represent themself before the Commission;



• it is not uncommon for an employee who has been dismissed or who has resigned their employment to spend time looking for a new job or, alternatively, to commence a new job;



• Mr Lang had failed to produce any medical evidence to support his claim that he suffered stress and anxiety as a result of the cessation of his employment and has also failed to demonstrate how this stress and anxiety impacted on his ability to lodge his general protections application within the 21 day time period; and



• Mr Lang attended a family funeral two weeks prior to the date of lodging his submissions with the Commission which is after he had filed his application on 21 August 2015 – as such the funeral cannot be considered as a reason for the delay in lodging his application.

[12] In summary, GQ not only disputed the reasons for the delay relied upon by Mr Lang but also submitted that the reasons were unsubstantiated and do not constitute exceptional circumstances.

[13] Many of the factors cited by Mr Lang as reasons for the delay in lodging his general protections application go to the practical difficulties he encountered in completing his application due in part to the fact that he is not legally trained. As alluded to by GQ in its submissions, many persons who lodge general protections applications with the Commission do so without legal assistance yet still manage to lodge their applications within the 21 day timeframe. Further, while Mr Lang did file a detailed application, his circumstances appear no more complex than many of the general protections applications which come before the Commission. These factors do not point to the existence of exceptional circumstances.

[14] Similarly, there is nothing exceptional about the demands associated with a former employee either looking for a new job or having to come to grips with a new job in the aftermath of having resigned or been terminated from their former employment. Again, this does not point to the existence of exceptional circumstances in this case.

[15] As to the stress which Mr Lang submitted he was under prior to his resignation and which continued to affect him after his resignation, Mr Lang provided no evidence regarding how and to what extent he was incapacitated from completing his application as a result of that stress. Further, I would observe that it is not unusual for someone who has just left or lost their job to feel anxious or stressed about their circumstances. Mr Lang submitted that his situation was compounded by a number of family issues such as the death of his girlfriend’s uncle and his uncle being diagnosed with acute cancer. However, the funeral for his girlfriend’s uncle was, based on Mr Lang’s submission, held in early September 2015, i.e. after he had already lodged his general protections application. It cannot therefore be relied upon as a reason for the delay in Mr Lang lodging his application. In respect of Mr Lang’s father, Mr Lang did not elaborate on how this precluded him from lodging his application within the statutory timeframe. While not doubting the distress which Mr Lang felt leading up to and after his resignation and as a result of the various family issues which arose, based on the material before the Commission I am not satisfied that he was incapacitated to such an extent that he was unable to complete his application with the 21 day timeframe.

[16] With regard to the issue of the alleged difficulties which Mr Lang encountered in attempting to electronically lodge his application with the Commission, Mr Lang attached to his written submissions a copy of a screen dump from his computer which refers to FWA eFiling in several places. Unfortunately the material provided by Mr Lang is of no assistance in substantiating Mr Lang’s claim that he encountered difficulties logging onto the eFiling service as it does not specify the dates and times of his attempts to log onto the service. However, an examination of the Commission’s electronic records indicates that Mr Lang first logged onto the Commission’s eFiling service at 12.54 am on 21 August 2015 and that he successfully submitted his application at 1.12 am on that day. In other words, Mr Lang did not log onto the Commission’s eFiling service until after the 21 day period had expired. The Commission’s records do not indicate any attempts by Mr Lang to log onto the service before 12.54 am. This does not point to the existence of exceptional circumstances.

[17] Taken together the factors relied upon by Mr Lang as the reasons for the delay do not support a finding of the existence of exceptional circumstances.

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

[18] Mr Lang did not explicitly address this factor in his written submissions. In response to a question from the Commission at the hearing Mr Lang pointed to a number of steps he took to raise his concerns about his employment situation prior to him resigning from his employment. However, Mr Lang did not mention any action he took following his resignation and prior to his application being lodged with the Commission to raise his concerns with GQ.

[19] GQ submitted that Mr Lang took no action to dispute the cessation of his employment prior to lodging his general protections application with the Commission.

[20] Based on the material before the Commission it is clear that Mr Lang took no action following his resignation to dispute the cessation of his employment. This weighs against a finding of the existence of exceptional circumstances.

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

[21] Mr Lang submitted that GQ would not be prejudiced were an extension of time to be granted.

[22] GQ submitted that were an extension of time to be granted to Mr Lang that it would suffer significant prejudice. More particularly, GQ submitted that it had been required to expend substantial time and money in order to defend the application and that it would be prejudiced by having to further defend the matter should Mr Lang be granted extension of time.

[23] While I note GQ’s submissions, I would also point out that it is not unusual for an employer to expend resources in defending a general protections application. However, having to do so does not of itself constitute prejudice.

[24] I therefore consider this factor to be a neutral consideration.

(d) The merits of the application

[25] Mr Lang did not address this factor in his written submissions. At the hearing Mr Lang did not dispute that he had resigned from his employment with GQ. In his application Mr Lang contended that GQ had contravened sections 340 and 344 of the Act which deal respectively with protection relating to workplace rights and undue influence or pressure in relation to a decision by an employee to exercise or not exercise certain workplace rights. However at the hearing, in response to questions from the Commission Mr Lang was unable to elaborate on the nature of GQ’s general protections contraventions.

[26] GQ highlighted that Mr Lang resigned from his employment and was not dismissed. Further, GQ disputed that Mr Lang was constructively dismissed, submitting that he was aware of his role from the outset and accepted the offer of employment on that basis. GQ also submitted that it had not engaged in conduct, or taken action which indicated that it intended to bring the employment relationship to an end. As such, GQ contended that the application is without merit.

[27] Based on the material before the Commission, the merits of Mr Lang’s application appear less than compelling. While I acknowledge that Mr Lang’s employment with GQ was not a positive experience and that he is understandably disappointed with aspects of his treatment while employed by GQ, this does not necessarily mean that GQ contravened the general protections provisions of the Act.

[28] The less than compelling merits of Mr Lang’s application do not support a finding of exceptional circumstances.

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

[29] Mr Lang made no submissions on this factor.

[30] GQ submitted that should Mr Lang be granted an extension of time that he would be significantly advantaged in relation to other persons in a similar position.

[31] I consider this factor to be a neutral consideration.

Conclusion

[32] 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 (Nulty) 2in 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.”

[33] 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).

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

Appearances:

D. Lang on his own behalf.

C. Pellow with A. Sella for Get Qualified Pty Ltd T/A Get Qualified.

Hearing details:

2015.

Melbourne and Sydney (telephone):

November 2.

 1   Mr Lang’s submissions at page 3

 2   [2011] FWAFB 975

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