Derek Storey v Aristocrat Technologies Australia Pty Limited

[2016] FWC 8464

[2016] FWC 8464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Derek Storey
v
Aristocrat Technologies Australia Pty Limited
(C2016/5240)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 25 NOVEMBER 2016

Application to deal with contraventions involving dismissal.

[1] On 1 September 2016, Mr Derek Storey (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Aristocrat Technologies Australia Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 26 March 2012. He held the position of Global Strategic Sourcing Manager at the time of his dismissal. He says that he was dismissed on 28 July 2016 and the dismissal took effect on that day.

[3] The Applicant was paid 30 days’ pay in lieu of notice. The application was therefore lodged some 13 days out of time.

Alleged Contravention

[4] The Applicant submits that the Respondent terminated him after he lodged a formal grievance. The grievance related to the Respondent’s failure to promote the Applicant to a more senior position. The Applicant says that his dismissal was not a genuine redundancy. He also submits that the dismissal resulted from the Respondent discriminating against him because of his mental disability.

[5] Breaches of s.340 and s351, in respect of mental disability, are alleged.

Respondent’s Submissions

[6] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[7] The Respondent states that the Applicant was dismissed because of a genuine redundancy.

Relevant Legislation

[8] 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.”

Approach of the Commission

[9] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[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.”

Commission Proceedings

[12] On 8 September 2016, the parties were advised by the Fair Work Commission (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 2 November 2016.

[13] The Applicant was self-represented. The Respondent was represented by Mr D. Gardner, solicitor.

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

[14] 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

[15] The Applicant’s main explanation for the delay in lodging the application was his medical condition. Medical certificates and details of doctors’ appointments and medication were provided by the Applicant. However, no evidence is provided of incapacity or hospitalisation. Indeed, the WorkCover certificates tendered state that the Applicant was “fit for pre-injury duties”.

[16] The Respondent notes that the Applicant lodged a claim with the Anti-Discrimination Board of New South Wales during the lodgement period. The Respondent submits that pursuant to s.725 of the Act, the Applicant is statutorily barred from making this application.

[17] In the circumstances, I do not need to deal with this additional objection. However, it is evidence of the Applicant’s ability to file the claim. In addition, he filed a Workers’ Compensation claim during this period.

[18] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

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

[19] As noted, the Applicant did lodge other proceedings challenging his dismissal.

[20] However, I am not satisfied that this is a matter of significance in the circumstances of this case.

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

[21] I consider that this factor is neutral in this case.

(d) Merits of the application

[22] The Applicant alleges that the redundancy payment to him was a device to terminate him. The Respondent says that the decision to make the Applicant’s role redundant was made prior to the Applicant making his formal complaint on 28 July 2016. The Respondent says that it was a genuine redundancy and that redeployment options were not practical.

[23] There was clearly a history of disagreement between the Applicant and the Respondent about his position and performance. It may be that redundancy was felt by the Respondent to be an “easy way out”. Argument about the genuineness of the redundancy does not mean, however, that the Respondent would not be able to show that the operative reasons for the dismissal were not in breach of ss.340 and 351.

[24] On balance, I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

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

[25] This factor was not addressed and has not been taken into account.

Conclusion and Order

[26] 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.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Derek Storey under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

D. Storey, Applicant;

D. Gardner, solicitor with J. Birch for the Respondent.

Hearing details:

2016

November 2 (Telephone Hearing).

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