Eric van Staden v Stbaus Pty Ltd or STBQLD Pty Limited ACN 16 764 609 T/A Sky Dive the beach and beyond

[2018] FWC 3125

[2018] FWC 3125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Eric van Staden
v
STBAUS Pty Ltd or STBQLD Pty Limited ACN 16 764 609 T/A Sky Dive the beach and beyond
(C2018/1182)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 31 MAY 2018

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

[1] On 5 March 2018 Mr Eric van Staden (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 STBAUS Pty Ltd or STBQLD Pty Limited ACN 16 764 609 T/A Sky Dive the beach and beyond (Respondent).

[2] The Applicant commenced employment with the Respondent in April of 2014. He was a skydiving instructor. He says that he was dismissed on 18 September 2017 and the dismissal took effect on that day.

[3] The application was therefore lodged 147 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] The Applicant submits that he was dismissed due to a significant difference of opinion about a safety matter that he had with the Operations Manager, Mr Max Motzo. A breach of s.340, s.343, s.344 and s.358 is alleged. 1

[6] The Respondent submitted that the Applicant was an independent contractor and that their decision to terminate his services was not based on any unlawful grounds but was instead due to a personality clash between the Applicant and Mr Motzo. 2

Procedural background

[7] On 14 March 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 20 April 2018.

[8] The Applicant was represented by Mr Adrian Nippress of Collaborative Employment Solutions. The Respondent was represented by Kristy Peacock-Smith of Bird & Bird.

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 3where 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] 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. The onus of establishing exceptional circumstances is on the Applicant.

[14] In the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 4 the Full Bench made the following statement which, although concerned with the unfair dismissal application, 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.”

[15] I will now deal with each of the matters to be taken into account pursuant to s.366(2) separately.

(a) The reason for the delay

[16] The Applicant submitted that two weeks after his dismissal he was contacted by senior management of the Respondent who offered him roles at other locations in Brisbane and interstate. The Applicant submitted that he raised his concerns regarding his relationship with Mr Motzo and was told that the Respondent would get back to him, however they did not. Accordingly he decided not to take them up on the offer of other roles and his dismissal ‘stood’. 5

[17] The Applicant submitted he had been misled by the Respondent into believing that he was an independent contractor and as such had no remedy for the termination of his employment. 6

[18] The Applicant gave evidence that he had to explore opportunities for employment elsewhere resulting in an interstate relocation. Once he had settled in Adelaide, the Applicant sought legal advice in November 2017 as to what remedies would be available to him. He submitted that he only received advice in February 2018 that he was in fact an employee and should have been engaged as such by the Respondent, leading him to lodge his application. 7

[19] The Applicant’s oral evidence was that as a consequence of his dismissal he suffered emotionally, was sleepless and was not in a good mental state. He felt belittled and doubted his abilities to do the job. The Applicant submitted he felt angry and his confidence had broken down and that his mental state contributed to the delay.

[20] The Applicant gave further evidence that he did not think he was entitled to an unfair dismissal application and wasn’t aware of the general protections application until he sought legal advice in November 2017. He was advised that he was a contractor and was told he should contact Mr Nippress for further advice. The Applicant contacted Mr Nippress on or around 5 December 2017.

[21] The Applicant advised that it took some time to work through the details of his dismissal and further legal advice was sought, which he says he received sometime in early to mid-February 2018. Upon receiving the advice he thought heavily about the potential implications of lodging an application. The Applicant submitted that the safety of the public was of greater importance than the potential implications to his career and therefore he decided to lodge this application.

[22] The Respondent submitted that the Applicant has not established any exceptional circumstances which would warrant the Commission granting an extension. 8

[23] They submitted that the Applicant’s submissions were inconsistent in that he contended he had only just received advice that he should file an application but also submitted that he received legal advice in November of 2017. 9

[24] For this consideration there must be an acceptable reason for the delay. 10

[25] 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. 11

[26] The Applicant relies on number of factors that contributed to his delay in making an application. One of those was his mental state post the dismissal. Although I empathise with the Applicant, it is not uncommon for employees who have been dismissed to experience a degree of emotional and sometimes physical discomfort. The Applicant did not seek medical advice during this time nor did he provide any evidence in support of the proposition that his mental capacity had the effect of preventing him from pursuing a course of action against the Respondent.

[27] I accept that the Applicant had made a number of inquiries with legal representatives seeking to obtain advice about his dismissal and that he delayed taking any action as he was concerned of the possible ramifications that any action taken would have on his future prospects of employment. However this is a practical issue faced by many employees and, whilst it is a circumstance I empathise with, it is neither uncommon nor exceptional.

[28] I accept the Applicant’s evidence that he waited a month for the Respondent to contact him after agreeing to look into his concerns, however this at no time precluded him from seeking legal advice or from pursing action against the Respondent.

[29] I also accept that the Applicant’s priority was to obtain employment and, given the nature of the industry in which he was employed, this consequently involved an interstate relocation. However, whether considered in isolation or collectively, I do not consider any of the reasons provided by the Applicant are out of the ordinary course, unusual, special or uncommon.

[30] The Applicant has not provided an acceptable reason for any part of the period for which his Application was delayed. This weighs against a finding of exceptional circumstances.

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

[31] The Applicant submitted that following his termination he needed to carefully analyse the implications for his career if he were to legally challenge his dismissal as the Respondent owns a majority of the large skydiving operations in Australia and New Zealand. 12

[32] He further submitted that he was contacted by senior management a few weeks after his dismissal and was offered positions in the Respondent’s other locations, however requested that they look into his concerns as a way of resolving the issues in the workplace and to allow him to recommence at his original location. He submitted that he did not hear back in relation to this and after a month passed with no contact he moved interstate. 13

[33] The Respondent submitted that the Applicant took no steps to dispute his dismissal. 14

[34] 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. 15

[35] I am not satisfied that the Applicant made any attempt to dispute his dismissal other than in the filing of this application. This weighs against a finding of exceptional circumstances.

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

[36] Prejudice to the employer will go against the granting of an extension of time. 16

[37] The Applicant submitted that as he was not seeking reinstatement and his application would not have the effect of delaying or impacting on any of the Respondent’s operational matters. He also submitted that there would be no prejudice to the Respondent’s ability to investigate his concerns as he had raised them with senior management and there was an acknowledgement of the issues at that time. 17

[38] The Applicant further submitted that the delay was comparatively short and compounded by delays of the Christmas and New Year period when legal firms were closed and he was unable to obtain legal advice. 18

[39] The Respondent submitted that they are a company with no in-house legal counsel or sophisticated HR department. They submitted that, having regard to the time and cost to the Respondent in defending an application in circumstances where it has been made some 6 months out of time, the Commission should be satisfied that the interests of justice do not dictate the granting of any extension of time. 19

[40] The Respondent further submitted that due to the significant delay, the recollections of the people involved will be adversely impacted. 20

[41] While I note the Respondent’s submission, the time and cost of defending a claim goes more to the issue of inconvenience and not prejudice. I accept that the delay may have adversely impacted the recollections of the individuals involved. I consider this criterion to be neutral.

(d) Merits of the application

[42] The Applicant submitted that his engagement with the Respondent was structured in a way that avoided his employer providing him with lawful entitlements such as leave, superannuation and a grievance process. He submitted that this was in contravention of s.357 of the Act. 21

[43] He submitted that there was regular tension after Mr Motzo took on the role of Chief Instructor. He submitted that safety issues lead to the two of them having a difference of opinion. 22

[44] The Applicant submitted that he raised genuine safety concerns as instructors were encouraged to break the Australian Parachute Federation rules by being required to complete their jumps during poor weather conditions. 23

[45] He submitted that the day prior to his dismissal, when working as Drop Zone Safety Officer for the day in Airlie Beach, he decided that the winds were above the legal limit and put the day’s operations on hold. He submitted that Mr Motzo contacted him and berated him for suspending parachute jumps, before calling him into a meeting and dismissing him the following day. 24

[46] The Applicant further alleged that he had requested a pay rise in January of 2017 as he believed he was effectively doing Mr Motzo’s job, however was then told that Mr Motzo would be taking over the Applicant’s role of Operations Manager instead. 25

[47] The Respondent denied that the Applicant’s termination was due to differences of opinion regarding safety issues. 26

[48] The Respondent submitted that Mr Motzo was relocated to Cairns to take up the role as Chief Instructor for Airlie Beach and Cairns drop zones. The Respondent submitted that they had decided that Mr Motzo would become the Operations Manager for both Airlie Beach and Cairns however would first need approximately a year on the ground to gain a better understanding of the Respondent’s operations before assuming that position. 27

[49] They submitted that when it came time for Mr Motzo to take over the Operations Manager role it became evident that there was a significant personality clash between Mr Motzo and the Applicant that they believed would inhibit the future growth of the business. Accordingly, they determined that they would terminate their services agreement with the Applicant. 28

[50] In relation to the Applicant’s submissions regarding his request for a pay rise, the Respondent submitted that the request was made at the same time as announcements were being prepared to notify staff about Mr Motzo’s new role as Operations Manager, and that the timing of the request and the termination of the Applicant’s services was merely coincidental. 29

[51] In relation to the Applicant’s submissions that he was dismissed the day after suspending operations due to adverse weather, the Respondent again submitted that their operational plan was for Mr Motzo to take over the Operations Manager role and that the Applicant was not terminated on the basis of his suspending operations. 30

[52] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 31 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.32 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

[53] The Applicant submitted that if he had not been employed in a manner that suggested he was an independent contractor he would have had immediate access to unfair dismissal rights as part of the National Employment Standards. 33

[54] The Respondent submitted that the Applicant was not an employee and had been treated in the same manner as other contractors of the Respondent whose services were also terminated. 34

[55] 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. 35 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

[56] 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.

[57] 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. 36

[58] 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.

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

COMMISSIONER

Appearances:

A. Nippress for the Applicant;

K. Peacock-Smith for the Respondent.

Hearing details:

2018

20 April 2018 (Telephone hearing).

Printed by authority of the Commonwealth Government Printer

<PR607640>

 1   Form F8 – General protections application involving dismissal

 2   Form F8A – Response to general protections application

 3   [2011] FWAFB 975.

 4   [2016] FWCFB 349

 5   Exhibit A1, 1c

 6   Ibid. 1d

 7   Ibid. 1d

 8   Form F8A – Response to general protections application

 9   Ibid.

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

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

 12   Exhibit A1, 1d

 13   Ibid. 1d

 14   Ibid. 1e

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

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

 17   Exhibit A1, 1f

 18   Ibid. 1f

 19   Exhibit R1, 1g

 20   Ibid. 1g

 21   Exhibit A1, 1h

 22   Ibid. 1h

 23   Ibid.

 24   Ibid.

 25   Form F8 – General protections application involving dismissal

 26   Form F8A – Response to general protections application

 27   Exhibit R1, 1h

 28   Ibid. 1h

 29   Form F8A – Response to general protections application

 30   Ibid.

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

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

 33   Exhibit A1, 1i

 34   Exhibit R1, 1f

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

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

 37   PR607641