David Lill v Rocab (Kingsway) Pty Ltd T/A Richmond Oysters Glen Waverley
[2016] FWC 7765
•31 OCTOBER 2016
| [2016] FWC 7765 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
David Lill
v
Rocab (Kingsway) Pty Ltd T/A Richmond Oysters Glen Waverley
(C2016/5405)
DEPUTY PRESIDENT DEAN | SYDNEY, 31 OCTOBER 2016 |
Application to deal with contraventions involving dismissal – extension of time.
[1] Mr David Lill (the Applicant) was employed by Rocab (Kingsway) Pty Ltd T/A Richmond Oysters Glen Waverley (the Respondent) until his employment was terminated on 17 August 2016. He alleged that the termination of his employment by the Respondent was in breach of the general protections provisions of the Fair Work Act 2009 (the Act). The Respondent denies the allegations, and alleges that the Applicant’s employment ended after a 3 month trial period.
[2] Given the Applicant’s dismissal took effect on 17 August 2016, his general protections application lodged on 8 September 2016 was made 1 day outside the 21 day period prescribed by the Act.
[3] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.
[4] Section 366 of the Act provides:
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.
[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:
“[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.”
[6] I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
[7] The Applicant submitted that he ‘knew almost nothing of the legal system’ and did not intend to pursue this matter until about two weeks after his dismissal when he obtained legal advice from Legal Aid Victoria and another organisation.
[8] The Applicant gave evidence that he sent the application by express post on 7 September (being day 21) and was of the impression that this would be acceptable. His written outline of argument says the following:
“I was under my impression that I had sent it within the 21 days … Surely I wasn’t expected to put mailing time into consideration”.
[9] During the hearing, the Applicant confirmed that he had viewed the Fair Work Commission website, and was aware that there were various means by which he could lodge his application, including by email and by phone.
[10] The Applicant said that another reason of the delay was due to his hesitation in pursuing the matter.
[11] Clearly, the Applicant was aware of the statutory time limit, but did not ensure that his application was lodged within time.
[12] This weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[13] The Applicant conceded that he did not take any specific action to dispute his dismissal.
[14] This weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[15] There was no evidence that the Respondent would suffer prejudice if the extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[16] The Applicant submitted that his dismissal was because of his family obligations. He disputes that his dismissal was within a probationary period.
[17] The Respondent submitted that the dismissal was within the probationary period, and was for reasons relating to the Applicant’s performance, not because of his family obligations.
[18] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[19] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 2 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’3
[20] There were no submissions or evidence that there were any persons in a similar position and I find it to be a neutral consideration.
Conclusion
[21] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
[22] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
D Lill on his own behalf.
M Di Luca for the Respondent.
Hearing details:
2016.
Sydney (by telephone):
October 28.
1 [2011] FWAFB 975.
2 [2015] FWC 8885.
3 Ibid at [29].
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