Geoffrey Gibson v Toll Energy Logistics Pty Ltd

[2015] FWC 1310

[2015] FWC 1310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Geoffrey Gibson
v
Toll Energy Logistics Pty Ltd
(C2014/7587)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 2 MARCH 2015

Application to deal with alleged contraventions involving dismissal - extension of time.

[1] Mr Geoffrey Gibson (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 3 November 2014 under s.365 of the Fair Work Act 2009 (the Act) alleging that his dismissal on 9 April 2014 by Toll Energy Logistics Pty Ltd (the Respondent) was in contravention of the general protections provisions of the Act. As the application was lodged more than six months outside the 21 day statutory timeframe for lodgement specified in s.366(1) of the Act, the Commission wrote to both the Applicant and the Respondent advising that a decision was required on whether or not there were exceptional circumstances warranting the Commission allowing a further period time for the application to be made.

[2] Directions were issued requiring the Applicant and the Respondent to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Those directions invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with its directions. Neither party asked to be heard on the matter.

[3] In addition to both parties lodging outlines of submissions, the Applicant filed a witness statement, while the Respondent sought to rely on the evidence of its Human Resource Manager Ms Helen Ford who also filed a witness statement, Ms Carla Vinciullo acted on behalf of the Respondent. The Applicant also provided a brief response to Ms Ford’s witness statement.

[4] The Commission convened a brief telephone hearing on 27 February 2015 to enable it to ask the Applicant a number of questions intended to clarify aspects of his written submission and witness statement.

[5] For the reasons set out below I have found that there are not exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application cannot proceed and is therefore dismissed.

Background

[6] The Respondent was contracted to perform transport and logistics work on Barrow Island as part of the construction phase of the Gorgon project for the Kellogg Joint Venture Gorgon (KJVG). The contract with KJVG is due to come to an end in late 2015.

[7] The Applicant commenced employment with the Respondent in March 2013 working as a Supply Base Operator Level 2.

[8] In late 2013 and early 2014 the Respondent informed employees that as the construction phase of the Gorgon project was winding down, the number of employees was required to be reduced.

[9] On 9 April 2014, the Applicant was one of thirty three employees made redundant by the Respondent. The Applicant subsequently wrote to the Respondent on a number of occasions, the first of which was 16 April 2014, raising a number of concerns regarding his dismissal. The Applicant also sought advice from his union shortly after his dismissal and in June and October 2014 sought legal advice about challenging the dismissal.

[10] The Commission received the Applicant’s general protections application on 3 November 2014, 187 days outside the 21 day statutory timeframe for making such an application.

The Relevant Legislation

[11] 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.”

Whether to allow a further period for the application to be made

[12] 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

[13] The Applicant submitted that following his dismissal and within the 21 day statutory time frame he had liaised with his union regarding his dismissal. However, his union did not advise him that he could make a general protections application. The Applicant contends that this placed him at a legal and competitive disadvantage.

[14] Beyond continuing to correspond with the Respondent regarding his dismissal, the Applicant did not take any further action until 12 June 2014 when he contacted MDC Legal by email about challenging his redundancy. The Applicant stated at the hearing on 27 February 2015 that his discussion with MDC Legal concerned the possibility of him lodging an unfair dismissal application, with no mention made of the possibility of making a general protections application. The Applicant attests that MDC Legal did not wish to proceed given that any application would be outside the 21 day statutory timeframe.

[15] In subsequent developments, the Applicant met with MDC Legal on 28 October 2014 where he was advised that he could make a general protections application himself and if an extension of time was granted by the Commission he could again seek MDC Legal’s assistance. This was the first time that the Applicant became aware of the possibility of making a general protections application. As previously mentioned, the Applicant’s application was received by the Commission on 3 November 2014.

[16] The Respondent submitted that the Applicant had provided insufficient explanation of the reasons for the delay in lodging his application.

[17] As noted above, the Applicant did not become aware of the possibility of making a general protections application until his meeting with MDC Legal on 28 October 2014. Further, the Applicant stated at the hearing on 27 February 2015 that only contacted MDC Legal again when he became aware that the Respondent was recruiting staff to work on Barrow Island and that he did not contact the Commission to discuss his situation prior to lodging his application. In short, the Applicant is arguing that the key reason for the delay in lodging his application was his lack of knowledge that he could make a general protections application.

[18] The above analysis supports a finding that the reasons for the delay do not involve exceptional circumstances.

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

[19] The Applicant first wrote to the Respondent on 16 April 2014, one week after his dismissal, raising a number of issues regarding his dismissal. That email was the first of a number of emails between the parties regarding the Applicant’s concerns.

[20] The Respondent does not dispute that the Applicant took steps to dispute his dismissal on 16 April 2014.

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

[21] The Respondent submitted that it had already spent a substantial amount of time and money on defending the application, and that it should not be put to the extra cost of defending an application lacking in merit. In the alternative, the Respondent submitted that the mere absence of prejudice does not of itself justify the Commission allowing a further period for the making of an application.

[22] The Applicant did not address this issue.

(e) The merits of the application

[23] In his application the Applicant cites several of the general protections provisions of the Act which he contends have been contravened by the Respondent, namely sections 340, 344, 345, 346, 349, 351 and 355 of the Act. However, neither the application or the Applicant’s submissions and witness statement elaborate on precisely how those provisions of the Act have been contravened other than asserting the he was made redundant after he had been asked to submit a victimisation complaint by a senior manager and had provided feedback on what he considered to be the Respondent’s unethical business dealings.

[24] The Respondent contends that the application is without merit.

[25] An analysis of the material before the Commission supports a finding that the merits of the application are not compelling.

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

[26] The Respondent submitted that, given the delay in lodging the application, there would be no unfairness between the Applicant and other persons in a similar position if the application were dismissed. The Respondent further submitted that were an extension of time granted, it would constitute a degree of latitude contrary to the prevailing legislative and precedential standard.

[27] The Applicant did not address this issue.

Conclusion

[28] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[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.

[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...” [Underlining added]

[29] Drawing on Nulty, ignorance of the ability to make a general protections application does not constitute an exceptional circumstance. While the Applicant did seek assistance from his union shortly after his dismissal in April, when it declined to take on the matter he did not seek alternative advice until mid-June 2014. Further, at no stage did the Applicant contact the Commission to discuss his situation. The Applicant’s submissions, witness statement and his responses to the Commission’s questions at the hearing of 27 February 2015, do not set out any exceptional circumstances causing this delay.

[30] Following the approach in Nulty and having considered all of the factors set out in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365. Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be separately issued.

 1   [2011] FWAFB 975

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