Graham Armstrong v Westside Bus Company Pty Ltd

[2015] FWC 7570

[2015] FWC 7570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Graham Armstrong
v
Westside Bus Company Pty Ltd
(C2015/6070)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 6 NOVEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 14 September 2015 Mr Grahame Armstrong (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 Westside Bus Company Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 26 January 2011. He was a bus driver for the Respondent in Brisbane. He says that he was forced to resign on 26 June 2015 and the dismissal took effect on that day.

Alleged Contravention

[3] The Applicant submits that he had no choice but to resign because the Respondent had not adequately responded to instances of harassment and intimidation. Although, in his application s.344 was nominated as the relevant section that had been breached, it is apparent that a breach of s.340 is alleged. The Applicant claims that he was prevented from exercising his right to a safe workplace.

Respondent’s submissions

[4] The Respondent denies that it forced the Applicant to resign. It further denies that there has been a breach of the General Protections provisions of the Act.

[5] The Respondent states that it never received a proper complaint from the Applicant in respect of any harassment issues. In any event, the Applicant resigned of his own free will.

Relevant Legislation

[6] 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

[7] 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.”

[8] On 21 September 2015, 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 set down for hearing by telephone on 2 November 2015.

[9] The Applicant was self-represented. The Respondent was represented by Mr J. Muir, its Human Resources Manager.

Matters to be taken into account pursuant to s.366(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.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] The Applicant’s explanation for lodging over 2½ months out of time was mainly based on his lack of understanding of the process for contesting the issue. It is apparent from his evidence that he had been in contact with Queensland Health and Safety authorities with respect to his harassment claim. There is evidence of contact with the Commission in early September. The application was finally filed with the assistance of Commission staff. There is no evidence of any contribution to the delay by inadequate advice from the Commission.

[12] The reasons for delay cited by the Applicant fall well short of establishing exceptional circumstances.

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

[13] The Applicant clearly challenged the result of the Respondent’s investigation into the allegation that he had been harassed.

[14] The lack of evidence of the Applicant taking action to challenge the “dismissal” supports a finding that there were not exceptional circumstances.

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

[15] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) The merits of the application

[16] The Applicant alleges that he was forced to resign because the Respondent had not taken appropriate action to protect him from harassment from the public and employees.

[17] The Respondent asserts that an appropriate investigation and action took place. In any event, it submits that there is no link between this matter and the Applicant’s resignation.

[18] The need for the Applicant to establish that there was a constructive dismissal means that he would have an additional “hurdle” to get over to be successful.

[19] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

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

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

Conclusion and Order

[21] 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 Graham Terry Armstrong under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

G. Armstrong, Applicant.

J. Muir for the Respondent.

Hearing details:

2015

Telephone Hearing:

November 2.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR573576>