David McVernon v Nevmat Australia T/A Nevmat Australia Pty Ltd

[2017] FWC 3379

[2017] FWC 3379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

David McVernon
v
Nevmat Australia T/A Nevmat Australia Pty Ltd
(C2017/1960)

COMMISSIONER CIRKOVIC MELBOURNE, 22 JUNE 2017

Application to deal with contraventions involving dismissal– whether to extend time for lodging the application.

[1] On 11 April 2017 Mr David McVernon (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Nevmat Australia T/A Nevmat Australia Pty Ltd (Respondent) (Nevmat Australia).

[2] The Applicant commenced employment with the Respondent on 1 July 2014. During the hearing, he sought to amend the date he submitted that he was notified of the dismissal and the date the dismissal took effect to 17 March 2017.

[3] The application therefore was lodged 4 days out of time.

[4] 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.

Alleged Contravention

[5] A breach of s.340 and 343 are alleged.

Legislative scheme

[6] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) The application 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).

[7] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[8] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where 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.

[Endnotes not reproduced]

[9] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[10] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[11] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.” [Endnotes not reproduced]

Background

[12] On 20 April 2017, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of an outline of argument: extension of time. The matter was listed for hearing on 3 May 2017.

[13] The Applicant was self-represented. Permission to appear on behalf of the Respondent was sought by and granted to Mr Chris Frazis of Hancock, Alldiss & Roskov.

[14] Mr McVernon gave evidence on his own behalf.

Matters to be taken into account pursuant to s.366(2)

[15] 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

[16] The Applicant says the dismissal took place a week after he returned from a work conference in China. The Applicant submits that he has struggled since the dismissal, has had to make some ‘significant personal changes in his life’, including moving in with his parents to help support his young family. The Applicant submits that as a result pursuing his application has not been ‘at the forefront’. The Applicant further submits that he had assumed that the 21 days were based on ‘working days not calendar days’. 2 The Applicant submits that he does not have the means for legal representation.

[17] The Applicant confirmed that he had accessed the Commission website, in particular material on the website regarding the making of this type of application.

[18] The Respondent submits that the reasons provided by the Applicant do not amount to exceptional circumstances. The Respondent submits on 23 March 2017 the Applicant was able to give a lengthy and articulate response to the termination letter, and that this illustrates the Applicant had the time to research the law and consider his position.

[19] The above analysis does not point to the existence of exceptional circumstances.

[20] For this consideration there must be an acceptable reason for the delay 3 and this must be for the whole period that the application was delayed.4 I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

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

[21] In the Applicant’s Outline of Argument: Extension of Time, in response to question 1e ‘When you became aware of the dismissal, did you question or argue against the dismissal after you became aware of it?’, the Applicant stated that he was unable to contact any members of staff or management. 5

[22] He does not make any further submissions about any attempt to dispute the dismissal.

[23] This factor is neutral in considering whether to exercise the discretion to allow a further period for the Applicant lodge his application.

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

[24] The Applicant submits that the Respondent has not been prejudiced by the delay. 6

[25] The Respondent does not submit it has been prejudiced by the delay. 7

[26] Absent of any evidence of any real or actual prejudice to the employer, I am satisfied that such absence favours the Applicant.

(d) Merits of the application

[27] The Applicant submits that when he returned from a work conference a week prior to the dismissal a consultation was organised with a human resources consultant and an accountant. The Applicant submits that when he asked for a written agenda the meeting was postponed until he was dismissed without consultation. 8

[28] The Respondent submits that the application is ‘devoid of any merit, insofar as it seeks to rely on sections 340 and 343 and insofar as the remedies sought’.

[29] The Commission notes that, for the purpose of determining whether to grant an extension of time to the Applicant to file her application, it “should not embark on a detailed consideration of the substantive case.” 9

[30] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 10 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.11 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

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

[31] The Applicant submits that this situation has not occurred in his former workplace before. 12

[32] The Respondent submits that the Applicant has not been treated any differently to any other employee in his position. The Respondent submits that it has not terminated an employee previously on grounds justifying summary dismissal. 13

[33] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 14 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion neutral.

Conclusion

[34] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[35] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 15

[36] Having considered all of the factors set out in s.366(2), 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). Accordingly, the application is dismissed.

[37]An order 16 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

David McVernon, Applicant;

Chris Frazis of Hancock, Alldiss and Roskov, for the Respondent.

Hearing details:

2016

3 May (Telephone hearing).

 1   [2011] FWAFB 975.

 2   Applicant’s Outline of Argument, 1 May 2017, answer to question1d.

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 4   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409.

 5   Applicant’s Outline of Argument, 1 May 2017, answer to question 1e.

 6   Applicant’s Outline of Argument, 1 May 2017, answer to question 1f.

 7   Respondent’s Outline of Argument, 27 April 2017, answer to question 1g.

 8   Applicant’s Outline of Argument, 1 May 2017, answer to question 1h.

 9   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 10   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 11   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 12   Applicant’s Outline of Argument, 1 May 2017, answer to question 1i.

 13   Respondent’s Outline of Argument, 27 April 2017, answer to question 1f.

 14   Wilson v Woolworths [2010] FWA 2480, [24]-[29].

 15   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

 16   PR594027.

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