Dirk Jordaan v Tote Systems Australia

[2019] FWC 7406

[2019] FWC 7406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Dirk Jordaan
v
Tote Systems Australia
(C2019/4960)

COMMISSIONER YILMAZ MELBOURNE, 30 OCTOBER 2019

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

[1] On 12 August 2019, Mr Dirk Jordaan (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Tote Systems Australia Pty Ltd (the Respondent). On 19 July 2019, Mr Jordaan’s employment was terminated for the reason of redundancy. He alleges that the reason for his termination of employment was not redundancy but a termination in breach of his workplace rights.

[2] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 3 days after the 21-day statutory time limit.

[3] Counsel for the Respondent sought leave to appear. The Applicant did not object to the request for representation, and following consideration of the arguments, I permitted the representation.

Applicant’s submissions

[4] Mr Jordaan submits that on 15 July 2019, he queried with the Director his job description and role, raised health and safety issues and raised an alleged criminal investigation. He submits the meeting concluded with the Director indicating that the issues required a week to respond. Mr Jordaan submits the issues were not responded to and his employment was terminated shortly before the close of business on Friday 19 July 2019. Mr Jordaan contends that the contraventions of the Act by the Respondent relates to:

•  s.340 protection of workplace rights 1

[5] Mr Jordaan alleges the health and safety concerns he raised related to the lack of material safety data sheets (MSDS). He alleges the material he sourced from the internet indicated procedures and personal protective equipment (PPE) were not complied with by the employer. He also alleges as the factory manager and employee that he is entitled to raise such concerns and expect a safe and healthy working environment. In relation to his job description and duties, he submits that the employer unilaterally altered his duties and he performed work inconsistent with his job description. He submits an investigation by Queensland Police, and action by the employer resulted in the loss of a contract which adversely affected his job security and of other staff. 2

Respondent’s submissions

[6] The Respondent denies the termination is due to a contravention of workplace rights. Tote Systems submits that in the 15 July 2019 meeting, Mr Jordaan advised that he had suffered nose bleeds and diarrhoea and provided a medical certificate for two days of personal leave. The medical certificate did not specify a reason. While Mr Jordaan indicated he would need to take time off work for further tests, the time off work was not taken. Tote Systems also submit that the investigation by Queensland Police was mentioned, but not as described in the Applicant’s submissions and Form F8. It is denied that the health and safety of staff was raised by Mr Jordaan.

[7] In relation to allegations concerning health and safety, Tote Systems denies MSDSs and PPE were not provided, and further denies Mr Jordaan raised health and safety concerns. Evidence of a toolbox meeting held with staff was tendered. This record of meeting reports on work health and safety items and states that “suitable PPE is in stock” and reinforces the requirement to use PPE when grinding armour plates. 3

[8] Tote Systems also denies that Mr Jordaan raised concerns regarding his position description and duties, and it further denies that it unilaterally changed his position. Lastly, Tote Systems denies the contract with Queensland Police was lost, rather, it submits an operational downturn occurred due to the change of services required.

[9] The Respondent raised the jurisdictional objection on the basis that the application was lodged outside the statutory time limit.

Consideration

[10] On 3 October 2019, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

[11] General protections applications involving dismissal must be made within 21 days.

[12] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

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

[13] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 4 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 5

[14] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[15] The general protection involving dismissal application was lodged with the Commission on 12 August 2019.

[16] Mr Jordaan contends in his submissions that his application was one day late, 6 but in fact, the application was three days late. There is no contention regarding the day of termination of employment on 19 July 2019.

[17] Mr Jordaan submits his termination due to redundancy was a shock as it was unexpected, particularly as he received a pay rise 7 the week prior to his termination of employment.

[18] He initially had an appointment with a law firm on 25 July, which was pushed out to 30 July 2019. During the hearing Mr Jordaan stated that the initial appointment was scheduled for 21 July, 2019. 8 Mr Jordaan confirmed that he met with his legal representative on 30 July 2019, who advised him that it was not their area of expertise.

[19] He then submits that following a medical appointment on 29 July 2019, he went into hospital on 1 August 2019 unexpectedly suffering abdominal pain. He was discharged on 3 August 2019 following a procedure relating to a kidney stone. He submits his application was delayed as he was bedridden, in pain and subsequently suffered a bladder infection.

[20] In support of his application, Mr Jordaan submitted a backdated medical certificate (dated 19 August) confirming he was a patient at the Gold Coast Hospital from 1 August to 3 August 2019. 9 Mr Jordaan also submitted a medical statement issued by Dr Coleclough, dated 10 September 2019 relating to an appointment he had with Dr Bartlett on 12 July 2019. This statement refers to the symptoms he presented with, and it records his prior background in diverticular disease. This appointment predates his termination of employment, but in his submission relates to his contention that his medical condition may have been related to conditions in the workplace.

[21] He submits that on 12 August 2019, his partner who works in a barrister’s office informed him that there was a time limit on applications, and he submits he took immediate steps to lodge his application with some difficulty on that same day.

[22] Mr Jordaan did not provide any medical evidence in support his submission that he was so ill that he could not lodge his application within the required time.

[23] In response, Tote Systems disputed that the explanation satisfied exceptional circumstances, and provided material to show that Mr Jordaan’s twitter account was active on 4 August 2019.

[24] Despite the medical evidence presented, there is no evidence in the period following the discharge from hospital, until the date of lodgement of the application in support of Mr Jordaan’s contention that he was prevented from filing on time.

[25] Having regard to the submissions and evidence, I am not satisfied that the Applicant demonstrated exceptional circumstances regarding this consideration. I do not consider the reasons given for the delay weigh in the Applicant’s favour.

Steps taken to dispute the termination

[26] Mr Jordaan did not take steps to challenge his termination of employment until he lodged the application on 12 August 2019.

[27] The lack of any action by Mr Jordaan prior to lodging his application does not weigh in his favour.

Prejudice to the employer

[28] Mr Jordaan asserts that granting an extension of time will not cause the Respondent disadvantage or unfairness. The Respondent submitted medical evidence concerning the age and health of both Directors of the business which indicates an extension of time will cause disadvantage.

[29] I note the Respondent’s medical evidence. While I accept that an extension will be an inconvenience, this does not constitute an unfair disadvantage caused by the delay. In line with established precedent, even the mere absence of prejudice is an insufficient basis to grant an extension. In this matter I am swayed by the balance of all of the considerations required pursuant to s.366(2) and I find this consideration is not in Mr Jordaan’s favour.

Merits of the application

[30] Mr Jordaan contends that the reason for his termination of employment was not due to redundancy, rather, because he raised his workplace rights on Monday 15 July 2019. In support of his contention he submits he went to the doctor complaining of nose bleeds and abdominal pain.

[31] The medical evidence he relies on is dated 10 September 2019 by Dr Coleclough for an attendance he had with Dr Bartlett on 12 July 2019. The medical evidence does not support his contention that he suffered nose bleeds, as the evidence refers to congestion, coughing and diarrhoea. The evidence notes his suggestion that his abdominal discomfort may be related to either boron carbide or silicon carbide. The evidence also states that he may have a viral illness and he has a background of diverticular disease. This evidence was not seen by the Respondent until his Outline of Submissions was filed in September 2019.

[32] Tote Systems in their submissions referred to a loss of tendered contracts over 2018 to overseas manufacturers and that this led to a downturn in staffing. It was submitted that a factory manager was not required for a small business with three permanent staff and two Directors. In relation to the pay rise, Tote Systems submits that the adjustment was the customary annual adjustment.

[33] Tote Systems disputes the allegations that they do not comply with health and safety requirements. In evidence, Tote submitted the MSDS for boron carbide, silicon carbide and boron carbide dressing stick, including a copy of their March 2019 international certification assessment report compliant with ISO 9001:2015. An additional toxicological assessment abstract report concerning the risks associated with nanoparticles was submitted. 10 The evidence did not raise sufficient doubt to support the contentions raised by Mr Jordaan.

[34] Health and safety procedures are an important element to the Respondent to achieve ISO 9001:2015 compliance. The materials, rather than supporting the contentions raised by Mr Jordaan, conflict with them. There is no evidence to dispute the reason of redundancy, and while the evidence was not sufficiently tested, the likelihood of Mr Jordaan succeeding on merit is low. Therefore, I find this consideration to not weigh in favour of the Applicant.

Fairness between the person and other persons in a like position

[35] Both the Applicant and Respondent did not consider this to be a relevant consideration. Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[36] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

[37] On balance of all the considerations, I am not persuaded that the Applicant has substantiated exceptional circumstances for an extension of time.

[38] Having considered all of the evidence and submissions against each 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.

COMMISSIONER

Appearances:

Mr D Jordaan on his own behalf

Mr D Chen for the Respondent

Hearing details:

2019

Melbourne

3 October 2019 (via telephone)

Printed by authority of the Commonwealth Government Printer

<PR713743>

 1   Applicant’s Form F8 and oral submissions.

 2   Applicant’s Form F8 at 3.3.

 3   Respondent’s Outline of Argument, Attachment F – Tote Toolbox Meeting Report held on 4 June 2019.

 4   [2011] FWAFB 975.

 5 Ibid at [13].

 6   Applicant’s Outline of Argument at 1d.

 7   Attachment to Applicant’s Outline of Submissions – DPJ1 – Letter from Tote Systems dated 10 July 2019.

 8   Oral submissions, 3 October 2019.

 9   Attachment to Applicant’s Putline of Submissions – DJP3.

 10   Attachments to the Respondent’s Outline of Submissions.