David Nowland v Cabezo Holdings Pty Ltd T/A Golf Mart

[2018] FWC 1844

[2018] FWC 1844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

David Nowland
v
Cabezo Holdings Pty Ltd T/A Golf Mart
(C2018/463)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 28 MARCH 2018

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

[1] On 29 January 2018 Mr David Nowland (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 Cabezo Holdings Pty Ltd T/A Golf Mart (Respondent)(Golf Mart).

[2] Mr Nowland commenced employment with the Respondent on 7 November 2017. He was a Future Team Leader. He says that he was dismissed on 4 December 2017 and the dismissal took effect on that day.

[3] The application therefore was lodged 35 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.

Preliminary Matter

[5] Mr Nowland named the Respondent to this application as ‘Golf World (Qld) Pty Ltd T/A Golf World and Golf Mart Always Slices the Price’. During the hearing, Golf Mart submitted that the correct name of the entity should be ‘Cabezo Holdings Pty Ltd T/A Golf Mart’. Mr Nowland did not dispute this submission and confirmed that his employment contract listed ‘Golf Mart’ as his employer.

[6] On the evidence before me, I am satisfied that the name of the Respondent in this matter is Cabezo Holdings Pty Ltd T/A Golf Mart. I have utilised the discretion in s.586 of the Act to amend the application accordingly.

Alleged Contravention

[7] The Applicant submitted that he was dismissed because he made an enquiry regarding his remuneration. 1 He further submitted that he had made a complaint regarding his manager’s behaviour.2 A breach of sections 340, 343, 344 and 345 is alleged.

Respondent’s Submissions

[8] The Respondent submitted that the Applicant was dismissed during his probation period as he was not a good fit for the business. They submitted that he was unable to work at either the Artarmon or Brookvale stores as his relationships with the managers of these stores were unsustainable and he declined to move to their Sans Souci store due to increased travel time and costs. 3

Legislative scheme

[9] 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).

[10] 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.

[11] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 4where 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)

[12] 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

[13] 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. 5

[14] 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 6 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.”

Background

[15] On 31 January 2018, 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 witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 16 February 2018.

[16] The Applicant was self-represented. Mr Damon Flood, HR Manager, appeared on behalf of the Respondent

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

[17] 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

[18] For this consideration there must be an acceptable reason for the delay. 7 Mr Nowland was dismissed on 4 December 2017 in a face to face meeting with the Respondent’s NSW Area Leader.8

[19] The Applicant submitted that he was waiting to receive a termination letter from the Respondent and did not receive one. Accordingly, he made contact with a lawyer on 18 December 2017 to seek advice and assistance regarding his application. Mr Nowland submitted that it was his understanding that his lawyer would lodge the application before the close of business on 21 December 2017. 9

[20] He submitted that the law firm was closed from 22 December 2017 until 15 January 2018. Mr Nowland subsequently made contact with the firm and was advised to lodge his application. He submitted that he lodged it via post on 18 January 2018 and it was received by the Commission on 29 January 2018. 10 Mr Nowland’s application however is dated as having been signed on 21 January 201811 and the envelope in which it was sent is postmarked 28 January 201812.

[21] Mr Nowland was given permission to file additional materials after the hearing relating to his correspondence with his lawyer. The correspondence can be summarised as follows:

• 18 December 2017:

o An email from Mr Nowland’s lawyer in response to his enquiry regarding legal services. The signature on this email provides that the lawyer’s office will be closed on Thursday 21 December and re-open at 8am on Monday 8 January.

o An email from Mr Nowland to his lawyer providing documents and information about his claim.

• 19 December 2017:

o An email from Mr Nowland’s lawyer requesting that Mr Nowland sign his costs disclosure documents.

• 20 December 2017:

o An email from Mr Nowland’s lawyer providing a draft copy of his application form and annexures. This email states “I finish up this week so we need to finish this and file it tomorrow”.

• 21 December 2017:

o An email from Mr Nowland to his lawyer seeking to call him to discuss costs and “possibly just filing the application form”.

o An email from Mr Nowland’s lawyer advising him to contact him that day.

o An email from Mr Nowland regarding further information he had received from his employer.

o An email from Mr Nowland’s lawyer acknowledging receipt of this.

o An email from Mr Nowland providing a revised version of the draft annexures.

• 22 December 2017:

o An email from Mr Nowland’s lawyer regarding this revised document and providing Mr Nowland with extracts of the relevant legislation and revised versions of the application form and annexures.

o An email from Mr Nowland advising “ok I will leave as advised thanks for the heads up appreciate it best”.

• 16 January 2018:

o An email from Mr Nowland to his lawyer “to see how application for FWC is going”.

o An email from Mr Nowland’s lawyer advising that “I sent it to you before Christmas for you to file”.

• 23 January 2018:

o An email from Mr Nowland’s lawyer with no text again attaching a copy of the application form.

[22] In Davidson v Aboriginal & Islander Child Care Agency 13, the Full Bench of the Commission summarised the general propositions to be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay flowing from an earlier decision of the Australian Industrial Relations Commission14 as follows:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay is occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether an out of time application should be accepted.”

[23] There is nothing in the correspondence lodged by Mr Nowland which would lead me to believe that he gave clear instructions to his representative to lodge an application. However, even if I were to accept that Mr Nowland gave clear instructions to his lawyer to lodge the application, I would not consider representative error to be an acceptable explanation for the delay.

[24] Mr Nowland was advised on 16 January 2018 that his application had not been filed by his legal representative. This was 43 days after his dismissal took effect and 22 days after the time limit for lodging an application. The Commission did not receive Mr Nowland’s application until 13 days later on 29 January 2018.

[25] Mr Nowland’s oral evidence was that he commenced filling out the application form at this time and completed it on 21 January 2018. He submitted that he found the form to be confusing and difficult and as such it took him a number of days to complete. He subsequently posted the form on 25 January 2018, which I note was the Thursday before the Australia Day long weekend. When asked why it had taken him four days to post the completed form, Mr Nowland advised that he did not have an answer.

[26] Mr Nowland further submitted that his casual work, which he had completed in the period following the Christmas holidays, also contributed to the delay. He also provided a letter from his psychologist, dated 30 December 2017, concerning the effects of the dismissal on his mental health. He submitted that the uncertainty of the situation and the stress it caused him was a factor contributing to exceptional circumstances. 15

[27] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances. 16

[28] I am not satisfied that reasons provided by Mr Nowland constitute an acceptable reason for the delay. This weighs against a finding of exceptional circumstances.

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

[29] The Applicant submitted that he requested a termination letter the day after being dismissed and was told by his employer that he had resigned. He submitted that they advised him that they would send him correspondence stating that he had been terminated but would need to seek advice from their HR department. 17

[30] The Respondent submitted that Mr Nowland had contacted them to discuss his dismissal and was advised that, due to his continued personality clashes with store managers and difficulty taking direction he had been dismissed from the business. 18

[31] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 19 I am not satisfied that the attempt made by the Applicant to discuss his termination favours the granting of an extension of time. This factor weighs against a finding of exceptional circumstances.

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

[32] Prejudice to the employer will go against the granting of an extension of time. 20

[33] The Respondent submitted that there had been no disadvantage to their business with regards to the lateness of the application. 21

[34] The Applicant submitted that there had been no prejudice caused to the employer by the lateness of his application. 22

[35] Absent 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

[36] The Applicant submitted that on 4 December 2017 he was advised that his position at the Artarmon store was no longer available, and that if he wished to remain employed he would need to move without notice or consideration to the Sans Souci store. The Applicant requested a Fair Work Information Statement, his employment contract and a clear job description. He submitted that he had previously requested his employment contract as he believed he was being paid $10,000 less per annum than his original salary however this had not been provided. Upon returning to the Artarmon store his employment was immediately terminated. 23

[37] The Applicant submitted that he had also experienced bullying and harassment from his store manager and had complained about this to the NSW Area Leader one week prior to his dismissal. 24

[38] The Applicant also submitted that the Respondent had breached s.345 of the Act by making false and misleading representations to him regarding where he would be working. He submitted that the original employment offer was to work at either the Artarmon or Brookvale stores which he relied on in accepting the offer. He further submitted that the Respondent had breached s.344 of the Act by pressuring him to accept a guarantee of annual earnings that was $10,000 less than the original amount proposed. 25

[39] The Respondent denied Mr Nowland’s allegations and submitted that he was dismissed as he was not the correct fit for their business. They submitted that he was given the opportunity to work at two of their retail stores and that neither manager could work with Mr Nowland. 26

[40] They acknowledged that Mr Nowland had previous experience running businesses in the past however was not employed in a management role and was unable to take direction from those above him. 27

[41] They further submitted that he had been offered the opportunity to work at a third store however declined due to increased travel time and associated tolls. 28

[42] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 29 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.30 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

[43] The Applicant submitted that his situation was fair when considering the stress of finding himself unemployed just before Christmas and the unfair circumstances in which his dismissal occurred. 31

[44] The Respondent submitted that they have previously dismissed employees who were not the correct fit for their business within their probation periods. 32

[45] 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. 33 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion to be neutral.

Conclusion

[46] 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.

[47] 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. 34

[48] 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.

[49] An order 35 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

D. Nowland, for the Applicant;

D. Flood for the Respondent.

Hearing details:

2018

16 February (Telephone hearing).

<PR601591>

 1   Form F8 Application

 2   Exhibit A1

 3   Form F8A Response

 4   [2011] FWAFB 975.

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

 6   [2016] FWCFB 349

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

 8   Exhibit A1; Exhibit R1

 9   Exhibit A1

 10   Ibid.

 11   Form F8 Application

 12   Exhibit A3

 13   Print Q0784, 12 May 1998

 14   Clark v Ringwood Private Hospital (1997) 74 IR 413

 15   Exhibit A2

 16   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [45]

 17   Exhibit A1

 18   Exhibit R1

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

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

 21   Exhibit R1

 22   Exhibit A1

 23   Form F8 Application

 24   Exhibit A1

 25   Ibid.

 26   Exhibit R1

 27   Ibid.

 28   Ibid.

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

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

 31   Exhibit A1

 32   Exhibit R1

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

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

 35   PR601593

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