Greg Jean v Yara-Burrup Fertilisers

[2014] FWC 1384

[2014] FWC 1384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Greg Jean
v
Yara-Burrup Fertilisers
(C2013/7786)

COMMISSIONER WILLIAMS PERTH, 28 FEBRUARY 2014

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

[1] This matter concerns an application made by Mr Greg Jean (Mr Jean or the applicant) under section 365 of the Fair Work Act 2009 (the Act).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“366 Time for application

(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).

(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.”

[3] Mr Jean’s application states that he was dismissed on 5 August 2013. His application was made on 19 December 2013. The application was made after the 21 day time limit had passed. The respondent objects to the application on the ground that it is made out of time.

[4] Consequently I wrote to Mr Jean explaining to him the requirements of section 366 of the Act and inviting him to provide any relevant evidence and submission to assist the Commission in determining whether there were exceptional circumstances in this case.

[5] Mr Jean has provided a written submission as has the respondent in reply and this decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Background

[6] Prior to making this application the applicant made an application under section 394 of the Act for unfair dismissal remedy. This application was the subject of a decision by Commissioner Cloghan issued on 3 December 2013 [[2013] FWC 9448]. That decision found that Mr Jean had not completed the six-month minimum period of employment as required by section 382 of the Act and so was not a person protected from unfair dismissal. Consequently Mr Jean’s unfair dismissal remedy application was dismissed.

[7] That decision indicates that the applicant made written submissions to the Commission on 14 October 2013 and 6 November 2013.

Are there are exceptional circumstances?

The reason for the delay

[8] In his application and in his further submissions Mr Jean explains the reason for the delay in making this general protection application was in part that he understood he was unable to launch this application at the same time as he had lodged his unfair dismissal remedy. Mr Jean explains he understood that he could not pursue two applications with the Commission at any one time. The unfair dismissal remedy application having been finalised he then in his words made this application in a timely manner considering the impediments to his health.

[9] The applicant also explains that the reason for the delay in making this application was his poor health and medical condition which meant he was unable to fulfil any commitments and obligations including that of meeting the time requirements for filing this application. The applicant explains that he was variously medically unable to become involved in any facet of work or any external issue unrelated to work that might aggravate his medical condition. The applicant appended to his application a medical report dated 30 August 2013 from Dr Stephen McNally.

[10] Considering firstly the fact that the applicant had made a prior unfair dismissal remedy application, as the respondent has submitted the Commission has previously considered circumstances where applicants have made a second application after a prior application has been dealt with by the Commission and argued that these circumstances explain the delay in making the second application.

[11] In George Przedpelski v Trustee of Czapp Pty Ltd t/a Airport Doors Pty Ltd [[2012] FWAFB 8577] the Full Bench considered the reverse situation where an unfair dismissal remedy application was made after an applicant had filed, and the Commission had dealt with, a prior general protections application:

“[11] Nevertheless, the ultimate question that the Deputy President needed to determine was whether there were exceptional circumstances that warranted an extension of time being granted with respect to the period from the date of termination to the date of making the application - a period of approximately five months.

[12] The Deputy President noted at paragraph [10] of the decision (and perhaps again not recording accurately) that the application was made over three months outside the 14 days from dismissal provided by s.394 of the Act. The Deputy President also said in paragraph [24] of the decision that the application was made more than 14 days from the issue of a certificate, even if he was to ignore the earlier period of delay.

[13] In our view it is clear that the earlier period of delay is relevant to the question of whether to extend time. The fact that another application was made under s.365 of the Act, in our view, is not an exceptional circumstance that warrants an extension of time. In all of the circumstances we are of the view that the Deputy President was correct in concluding that there were no exceptional circumstances warranting an extension of time. We come to that view while acknowledging the error he made in recording the date of the actual application.” (Underlining added)

[12] The respondent also relies on the case of Zhan Gao v Department of Human Services [[2011] FWA 8072] decided by Commissioner Bissett which is analogous to the circumstances in this matter. Commissioner Bisset decided as follows:

“[41] It does appear that Mr Gao has lodged this application, at least in part, because there was no more he could do to prosecute his unfair dismissal application after it was rejected by the Full Bench. It is not unusual that an individual may not be able to proceed with an unfair dismissal claim for jurisdictional reasons - in this case that it was lodged out of time. This does not, of itself, create an exceptional circumstance when a general protections application is lodged out of time with respect to the same matter.” (Reference omitted)

[13] In this case Mr Jean similarly was not able to proceed with his unfair dismissal claim for jurisdictional reasons. I agree with Commissioner Bissett that this does not of itself create an exceptional circumstance warranting an extension of time being granted allowing the applicant to make a later general protections application with respect to the same dismissal.

[14] Turning to consider then the applicant’s state of health, the onus is on the applicant to provide sufficient evidence to the Commission that supports the conclusion that there was an acceptable reason for the delay in making the application.

[15] The applicant’s assertion that his health was so poor that he was unable to make this application within the required time is inconsistent with the fact that he was actively engaged with the Commission when it was dealing with his earlier unfair dismissal remedy and is also inconsistent with the fact that by his own admission he has since being dismissed and prior to making this general protection been dealing with a separate workers compensation claim.

[16] The medical report provided by the applicant in summary confirms that the applicant has been treated for work-related stress since May 2013. He has been suffering from depression and anxiety. Has at some point been admitted to hospital although for what period and in what circumstances are not specified. The report concludes that it is doubtful he will return to his previous employment and he may never be able to deal with the same amount of stress again.

[17] This medical report whilst identifying clearly that the applicant has real health problems does not provide any evidence that between the date of his dismissal and the date of making this application that these health problems meant Mr Jean was unable to make this application. The medical report was dated 30 August 2013 and consequently does not provide any information to the Commission as to Mr Jean’s health between that date and the date this application was made on 19 December 2013.

[18] The applicant has not provided evidence to the Commission that amounts to an acceptable explanation for the delay in making this application. It cannot be said that the applicant’s health problems is a credible reason for the whole period of the delay in this case.

Any action taken by the person to dispute the dismissal

[19] As explained above prior to making this application the applicant had contested his dismissal through the making of an unfair dismissal remedy application.

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

[20] There was a lengthy delay in this matter however there is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[21] Whilst the respondent submits that it is open to the Commission to form a preliminary view that the substantive general protections application has no reasonable prospect of success, having considered the materials provided in the application and the respondent’s response it is clear that there will be a real contest regarding many of the facts leading up to the dismissal of the applicant and much argument as to what inferences can be drawn from them.

[22] In the circumstances then it is not clear what the strength of the applicant’s case is at this preliminary stage. Consequently the merits of the application will be a neutral consideration in the determination of the applicant’s application to extend time.

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

[23] There is no information regarding fairness between the applicant and other persons in a similar position.

Conclusion

[24] The onus is on the applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the applicant and the relevant factors. In this case the merit of the substantive application is a neutral consideration however the applicant has separately contested his dismissal in the form of a prior unfair dismissal remedy application. I do not accept that there is an acceptable reason for the delay in making this application. Considering all these matters I am not satisfied that this case involves exceptional circumstances.

[25] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and is dismissed.

[26] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 15 January 2014

Respondent, 6 February 2014

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