Gary Kelly v David Simpson

[2017] FWC 1031

[2017] FWC 1031

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Gary Kelly
v
David Simpson; e-Volve Corporate Technology Pty Ltd T/A e-Volve Corporate Technology
(C2017/132)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 23 FEBRUARY 2017

Application to deal with contraventions involving dismissal.

[1] On 9 January 2016 Mr Gary Kelly (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 e-Volve Corporate Technology Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 31 August 2015. He was an Opportunity Manager in the Respondent’s Information Technology business in Alexandria in Sydney. The Applicant says that he was dismissed on 16 December 2016 and the dismissal took effect on that day.

[3] The application was lodged three days out of time.

Alleged Contravention

[4] The Applicant submits that he was dismissed because he had taken personal leave for a couple of days for treatment of a medical injury and illness. He says that he was given no other reason for his termination by the Respondent.

[5] A breach of s.340 is alleged because the Applicant submits that he was seeking to exercise a workplace right to take personal leave. The Applicant also alleges a breach of s.351 (on the ground of physical disability) and s.352 because the dismissal arose from his absence because of his back injury.

[6] The Applicant was employed on a salaried contract of employment with an annual salary of $140,000 per annum.

Respondent’s Submissions

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

[8] It did not however, provide an F8A form on the basis that it wanted the out of time objection determined first. It is apparent from the submission filed in response to the Commission’s direction that the decline in sales figures was the reason relied upon for the dismissal.

Relevant Legislation

[9] 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

[10] 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.”

[11] 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).

[12] 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

[13] On 17 January 2017, 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 31 January 2017.

[14] The Applicant was self-represented. The Respondent was represented by Mr D. Simpson and Ms J Briggs.

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

[15] 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

[16] The main reason for the delay in lodging given by the Applicant related to the Christmas – New Year holiday period with the Commission being closed for the public holidays and the difficulty of getting access to lawyers. He also had a visit from his overseas domiciled children over the holiday period.

[17] Although it is clear (see Nulty) that a combination of factors, which separately would not be sufficient, may comprise exceptional circumstances, I consider that this case falls short. The Commission’s offices are only closed for a couple of days and, in any event, this did not present the application from being lodged on line, as it was. It appears that the application was lodged by the Applicant without apparent legal assistance, so there is no reason why that could have not have been done within the 21 day time limit. While I have some sympathy for the Applicant, I do not think the distractions of the Christmas holiday period are sufficient to weigh in favour of there being exceptional circumstances.

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

[18] The Applicant sent a couple of emails contesting his dismissal to the Respondent following his dismissal.

[19] This factor therefore weighs in the Applicant’s favour.

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

[20] This factor is neutral in this case.

(d) Merits of the application

[21] The Applicant alleges that he was dismissed because of his medical condition and the reasonably brief leave that he took as a result of this.

[22] The Respondent says that the reasons for the dismissal was the financial position of the business, which was a small business, and the performance of the sales team of three employees, which included the Applicant. It is submitted that the Applicant was well aware of the Respondent’s difficulties.

[23] More evidence would be required to determine whether the operative reason for the dismissal related to the illness of the Applicant or the financial position of the Respondent. Accordingly I consider the merits of the application to be a neutral factor.

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

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

Conclusion and Order

[25] 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 Gary Kelly under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

G. Kelly, Self-Applicant;

D. Simpson with J. Briggs for the Respondent.

Hearing details:

2017

January 31 (Telephone Hearing).

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