Edward Mponda v My Practical Support Services Pty Ltd

[2016] FWC 5434

[2016] FWC 5434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Edward Mponda
v
My Practical Support Services Pty Ltd
(C2016/4277)

DEPUTY PRESIDENT DEAN SYDNEY, 5 AUGUST 2016

Application to deal with contraventions involving dismissal.

[1] Mr Edward Mponda (the Applicant) was employed by My Practical Support Services Pty Ltd (the Respondent) as its Public Relations and Brand Marketing Manager. His employment ended during the minimum employment period. 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 due to resignation.

[2] At the hearing I granted permission for the Respondent to be legally represented. I accepted the Respondent’s submission that it would enable the matter to be dealt with more efficiently and the Respondent was unable to represent itself effectively. I also note that no objection was taken by the Applicant.

[3] Given the Applicant’s dismissal took effect on 23 May 2016, his general protections application lodged on 27 June 2016 was not made within 21 days of the date the dismissal took effect.

[4] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[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] 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) of the Act. 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.”

[7] I will deal with each of those matters separately.

Reason for the delay

[8] The Applicant gave evidence that:

“When I was dismissed on 23rd May 2016, and having undergone the ordeal including my seeking assistance from Lifeline and the subsequent appointment with my GP … I needed peace of mind and avoided anything to do with the employer.

After sometime (about 2 weeks) I started talking about the events and circumstances surrounding my dismissal. It was only then that it occurred to me that I had been harassed and abused into leaving my job. It is also then that I started trying to understanding the labour environment in Australia and started researching avenues to access redress on the matter….

… being a refugee on a bridging visa, and also this being my first full time job, I had very limited idea of how and where I can get assistance …” 2

[9] The Applicant also gave evidence that he contacted the Respondent by email on 7 June 2016 to ascertain when he would be paid his termination payment, and subsequently met with the Respondent on 13 June 2016 to discuss the components of his termination payment.

[10] The Applicant was questioned by the Respondent’s representative regarding his education, which included a Bachelor’s degree in his home country of Malawi, a science degree undertaken by correspondence with a UK university, and most recently a Masters of Communication in Public Relations and Professional Communication from the University of Queensland (completed in 2014).

[11] The Respondent submitted that the evidence of the Applicant regarding the reason for the delay did not demonstrate exceptional circumstances because:

a. The Applicant was able to make contact with the Respondent to query his termination payment;

b. It is not out of the ordinary when a person leaves their workplace ‘on unhappy circumstances’ to be distressed, but these people can still get an application filed within the time limit;

c. He was well educated; and

d. Was able to research the difference between an unfair dismissal application (which was not available to him due to the short length of his employment) and a general protections application.

[12] I note that there was no medical evidence submitted by the Applicant to support his explanation for the delay in filing his application.

[13] I accept the submission made by the Respondent that the reasons provided by the Applicant do not demonstrate exceptional circumstances.

[14] This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[15] The Applicant conceded that he did not take any specific action to dispute the cessation of his employment, although he did query his termination payment.

[16] This weighs against a finding that there are exceptional circumstances.

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

[17] 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

[18] In the matter of Kornicki v Telstra-Network Technology Group 3 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 4

[19] For the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’ 5

[20] The Respondent strongly denies the allegations made by the Applicant and submits that the Applicant voluntarily resigned. 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

[21] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 6 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.’7

[22] 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

[23] 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.

[24] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

E Mponda on his own behalf.

L Waters for the Respondent.

Hearing details:

2016.

Brisbane and Canberra (by telephone):

August 3

 1   [2011] FWAFB 975.

 2   Exhibit 1 – Applicant’s Outline of Submissions.

 3   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 4   Ibid.

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

 6   [2015] FWC 8885.

 7 Ibid at [29].

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