George Mackintosh v Skilled Group Limited

[2016] FWC 2304

[2016] FWC 2304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

George Mackintosh
v
Skilled Group Limited
(U2015/13751)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 12 APRIL 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr George Mackintosh (the Applicant) made an application on 21 October 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Skilled Group Limited (Skilled – the Respondent) on 28 September 2015 was unfair.

[2] On 23 October 2015 the Fair Work Commission (the Commission) wrote to Mr Mackintosh indicating that his application appeared to have been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was received two days outside the 21 day statutory timeframe.

[3] The Commission subsequently issued Directions on 12 November 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Amended Directions were issued by the Commission on 2 December 2015.

[4] The extension of time issue was the subject of a telephone hearing on 22 December 2015. At the telephone hearing, Mr Mackintosh appeared on his own behalf, while Ms Michaela Lihou appeared for Skilled.

[5] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, Mr Mackintosh’s application cannot proceed and will be dismissed.

Background

[6] Mr Mackintosh commenced employment with Skilled as a casual employee on 3 March 2008 to provide services to Skilled’s clients through an on-hire arrangement. Mr Mackintosh was assigned to Telstra as a contact centre operator for the entire period of his employment with Skilled.

[7] Telstra advised Skilled on 28 September 2015 that it no longer wished to engage Mr Mackintosh on their site following the discovery of alcohol cans in his drawers on 25 September 2015. Mr Mackintosh was advised of this on the same day.

[8] As previously noted, Mr Mackintosh’s application was received by the Commission on 21 October 2015, two days outside the 21 day statutory timeframe.

The Relevant Legislation

[9] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(2) 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 (3).

394(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the first person became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”

Whether to allow a further period for the application to be made under s.394(2)

[10] 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.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] Mr Mackintosh stated in his application that he had had some severe problems with anxiety and depression, adding that these conditions can, at times, hinder and have a debilitating effect on a person’s motivation and ability to perform basic social tasks. Mr Mackintosh also stated in his application that he had been pursuing other legal matters against his former partner and that while he initially intended to seek legal advice from Legal Aid he chose not to as he thought doing so may impact on either those matters and his application given that his former partner’s mother is a senior member of the Canberra Law Society.

[12] In both his written and oral submissions, Mr Mackintosh contended that about one week after his dismissal he began experiencing seizures for unknown reasons, adding that he was awaiting a number of specialist appointments in January 2016 to diagnose the cause of the seizures.

[13] At the telephone hearing, Mr Mackintosh submitted that he “went off the chart” after his dismissal, adding that his medical condition impacted on his motivation which made everything hard to do. Mr Mackintosh also submitted that he was not aware of the 21 day period until about nineteen days after his dismissal and that he contacted the Commission at about the same time, adding that at the time of his dismissal he was not even aware of the Commission’s existence. Further, Mr Mackintosh contended that after contacting the Commission he could not get the information needed to complete his application until about the twenty second or twenty third day after his dismissal. When asked by the Commission what information he needed to complete his application, Mr Mackintosh was unable to elaborate.

[14] Skilled submitted that Mr Mackintosh had not provided any mitigating or exceptional circumstances that would provide any valid reason for the delay in lodging his application. Skilled referred to Mr Mackintosh’s submission that he had intended seeking legal advice from Legal Aid but for personal reasons thought that this may have impacted on his case, noting that a failure to obtain legal advice was not an exceptional circumstance. Skilled also relied on the Full Bench decision in Shaw v Australia and New Zealand Banking Group T/A ANZ Bank 1.

[15] At the telephone hearing, Skilled submitted that Mr Mackintosh had provided limited medical evidence regarding the severity of his medical condition. Skilled also highlighted that shortly after contacting the Commission, Mr Mackintosh’s application was completed without the need for legal assistance.

[16] Mr Mackintosh provided no medical evidence to support his submissions that his medical condition impacted on his ability to lodge his application within the statutory timeframe. Indeed, based on the material before the Commission, it appears as though Mr Mackintosh was able to contact the Commission within the 21 day timeframe and also pursue other legal matters against his former partner. I note also Mr Mackintosh’s submission that he could not complete his application until after the 21 day period had expired as he could not get the information he needed to do so, yet he could not advise the Commission, even in general terms, what that information was. As to the issue of Mr Mackintosh obtaining legal advice, it is worth observing that many applicants do not have the capacity to obtain legal advice yet still manage to submit their applications within the statutory timeframe.

[17] Further, with regard to Mr Mackintosh’s submission that he was not aware of the 21 day timeframe for making his application until about nineteen days after his dismissal, I note that in Cheyne Leanne Nulty v Blue Star Group (Nulty) 2a Full Bench of the then Fair Work Australia determined that:

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

[18] By way of background, the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in similar terms to s.394(2)(a) of the Act.

[19] Taken together, the above considerations do not point to the existence of exceptional circumstances.

(b) Whether the person became aware of the dismissal after it had taken effect

[20] It was not disputed that Mr Mackintosh was aware that his employment ceased on 28 September 2015.

[21] I therefore consider this factor to be a neutral consideration.

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

[22] Mr Mackintosh submitted that there was no particular action that he took to dispute his dismissal, adding that he did not see Skilled on site and that Telstra contacted him directly regarding his shifts.

[23] Skilled submitted that Mr Mackintosh did not dispute his dismissal.

[24] Based on the material before the Commission, it appears that Mr Mackintosh took no action to dispute his dismissal prior to lodging his application. This does not point to the existence of exceptional circumstances.

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

[25] Mr Mackintosh submitted that he did not consider that any advantage or disadvantage arose from the delay in lodging his application.

[26] Skilled did not directly address this factor in its submissions.

[27] Against that background, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[28] Mr Mackintosh contended that he had a strong case. Mr Mackintosh stated in his application that his former partner was in an acting role as his team manager and conducted a spring clean during which his desk drawers were searched and empty cider cans were discovered. Mr Mackintosh also stated in his application that he had been complaining to his manager for some time of being over worked and stressed, contending that the contact centre had been constantly understaffed and overworked and that he felt forced and bullied into regularly working 16 to 24 hour shifts.

[29] At the telephone hearing, Mr Mackintosh contended that his dismissal was “pretty suspect” given that his former partner was his manager and that the two had previously had drinks at the workplace. In response to a question from the Commission, Mr Mackintosh stated that his former partner was employed by Telstra. Mr Mackintosh submitted that if he had been dismissed for drinking at work, he had done so because he was overly stressed from working too many shifts. Mr Mackintosh contended that he was undertaking the workload of three people.

[30] In its Form F3 – Employer Response to Unfair Dismissal Application, Skilled stated that:

• it was advised by Telstra on 25 September 2015 that empty alcohol cans had been found in Mr Mackintosh’s desk drawer;



• it subsequently discussed the matter with Mr Mackintosh who advised that he drank the cans on a night shift;



• drinking on duty was in breach of both Telstra’s and Skilled’s policies;



• Telstra advised it on 28 September 2015 that it no longer wished to engage Mr Mackintosh on their site; and



• as a result, no further assignments were offered to Mr Mackintosh.

[31] In circumstances where Mr Mackintosh admitted to drinking alcohol on night shift, the merits of his application do not appear particularly compelling. While Skilled did not provide much detail of its policies in this regard, it is difficult to envisage those policies condoning the consumption of alcohol while at work. As to Mr Mackintosh’s conspiracy theory regarding his former partner, I note that this is not something Skilled could have orchestrated given that she was employed by Telstra. While the four time sheets which Mr Mackintosh appended to his submissions indicated that he worked long shifts on one day of three of the four weeks for which he provided time sheets, nothing much can be drawn from those time sheets as they relate to one week in each of January and April 2015 and two weeks in June 2015. In other words, no pattern can be drawn from the time sheets given the time gap between most of them.

[32] The above analysis does not point to the existence of exceptional circumstances.

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

[33] Mr Mackintosh submitted that he did not consider there would be many others in a similar position to his.

[34] Skilled submitted that the circumstances in this matter are not exceptional and occur on a regular basis. Skilled also observed that the Commission had seen many out of time applications involving mental health issues, adding that in some cases the Commission had determined to grant an extension of time while in others it had decided against granting an extension of time.

[35] I consider this factor to be a neutral consideration.

Conclusion

[36] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of 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.”

[37] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.

[38] Accordingly, Mr Mackintosh’s application will be dismissed. An order to that effect will be issued in due course.

Appearances:

G. Mackintosh on his own behalf.

M. Lihou for Skilled Group Limited.

Hearing details:

2015.

Canberra and Melbourne (telephone hearing):

December 22.

 1   [2015] FWCFB 287

 2 (2011) 203 IR 1

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