Gregory Disselkoen v PFP (Aust) Pty Ltd T/A PFP Australia

[2017] FWC 3142

[2017] FWC 3142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Gregory Disselkoen
v
PFP (Aust) Pty Ltd T/A PFP Australia
(C2017/2164)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 JUNE 2017

Application to deal with contraventions involving dismissal.

[1] Mr Gregory Disselkoen alleged that the termination of his employment by PFP (Aust) Pty Ltd was in breach of the general protections provisions of the Fair Work Act 2009. PFP denies the allegation.

[2] At the hearing I granted permission for PFP to be legally represented. Whilst extensions of time are not particularly complex there is some complexity in this matter due to the lack of clarity about the nature of Mr Disselkoen’s claim and the existence of a Deed of Release signed by Mr Disselkoen. Mr Disselkoen did not oppose permission being granted.

[3] Given his dismissal took effect on 31 March 2017, Mr Disselkoen’s general protections application lodged on 24 April 2017 was not made within 21 days of the date the dismissal took effect.

[4] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances, can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[6] Mr Disselkoen gave evidence that after his dismissal he sought to resolve his dispute with PFP however that was not successful. On 20 April 2017, he became aware of the 21 day time limit for making an application. On 21 April 2017, he attempted to lodge his application outside of business hours electronically however he was unsuccessful and he received an email from the Commission to that effect on 21 April 2017. He then successfully lodged his application on 24 April 2017.

[7] Mr Disselkoen did not make his application on 20 April 2017 as he did not have internet access at home. He did not attempt to make an application after his attempt was unsuccessful because, whilst knowing he was now late in filing, he didn’t think the additional days would make a difference. Further, he thought that if he waited until a business day if something went wrong he could contact the Commission by phone.

[8] Mr Disselkoen also relied on a medical certificate which advised that Mr Disselkoen was suffering a medical condition.

[9] That Mr Disselkoen was unaware of the time limit until 20 April 2017 is not unusual.

[10] I am not satisfied that Mr Disselkoen’s medical condition provided him with a reasonable explanation for the delay. His certificate did not indicate that Mr Disselkoen’s condition prevented him from lodging this application.

[11] During the time after his dismissal, Mr Disselkoen was able to engage in lengthy email communications with PFP and as early as 5 April 2017 he made reference to receiving independent advice. In that email Mr Disselkoen stated that there was a potential adverse action claim and sought to settle that claim without the need for litigation.

[12] The real reason for the delay was that he was attempting to resolve the matter without the need to make this application. While direct negotiation is to be encouraged, the Parliament has set a limited time for employees to make these applications. As a consequence Mr Disselkoen, by not attempting to lodge his application until after hours on the day it was due, took the risk that something might go wrong in the process. While I accept that Mr Disselkoen did not have internet access at home, his explanation that he thought the additional days would not make a difference, is not a reasonable explanation for not attempting to re-lodge the application as soon as possible. Further, a lack of internet access would not have prevented Mr Disselkoen from faxing his application or from emailing his application and facilities for doing this are available at post offices and libraries.

[13] I am not satisfied that Mr Disselkoen has provided a reasonable explanation for the delay.

(b) any action taken by the person to dispute the dismissal;

[14] At the hearing Mr Disselkoen said he did not dispute the dismissal. Yet from 5 April 2017 he sought to resolve his dispute with PFP. In addition to the various emails, he made telephone calls to see if it could be resolved.

[15] PFP submitted that in none of these emails did Mr Disselkoen challenge his termination. I do not accept this submission. In his email of 5 April 2017, Mr Disselkoen said that this dispute could potentially be an adverse action claim.

[16] I am therefore satisfied that Mr Disselkoen did dispute the dismissal and this weighs in favour of a finding that there are exceptional circumstances.

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

[17] PFP submitted that it would be prejudiced if an extension of time was granted but called no evidence to support this submission. A lack of prejudice to the employer of itself does not support a finding of exceptional circumstances however a lack of prejudice weighs in favour of such a finding.

(e) the merits of the application;

[18] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."  3

[19] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 4 

[20] In his application Mr Disselkoen relied upon s.343 of the Fair Work Act 2009.

[21] S.343 provides as follows:

“A person must not organize or take, or threaten to organize or take, any action against another person with the intent to coerce the other person, or a third person to:

(a) exercise or not exercise, or propose to exercise, a workplace right; or
(b) exercise, or propose to exercise a workplace right in a particular way.”

[22] The only workplace right identified by Mr Disselkoen was the right to work. Mr Disselkoen was not able to explain how he says that there is an arguable case that this provision of the Act has any application to his circumstances. Also I am not satisfied that s.343 is relevant to a s.365 application.

[23] S.365 permits an employee who alleges adverse action in contravention of Part 3-1 of the Act to make an application to the Commission to deal with the dispute. In this case, Mr Disselkoen says he was dismissed. PFP denies dismissing Mr Disselkoen and says the employment ended by mutual agreement.

[24] It may be that Mr Disselkoen is saying he was dismissed because he exercised a workplace right or because he complained about the management of the business.

[25] Mr Disselkoen submitted that PFP falsely advised him that the business was to be sold and as a consequence he agreed to the termination of his employment. He said he did so because he thought it was likely that he would be dismissed by the new owners.

[26] Mr Disselkoen complains that he was dismissed prematurely because of differing views with his manager about the sale process. It is not clear how Mr Disselkoen says that this would be a breach of the general protections provisions.

[27] On 30 March 2017, Mr Disselkoen signed a Deed of Release which provided for the cessation of his employment. It included a term which released PFP from any further claims. The Deed further contained a clause in which Mr Disselkoen warranted that he entered the Deed without duress and that he did not enter the Deed as a result of any promises, representations or inducements. He further warranted that he had an opportunity to obtain legal advice.

[28] Mr Disselkoen said that he signed the Deed under duress but does not deny signing it. He said he was not expecting to have his employment end when he met with Mr Mohan Mohanachandran. During those discussions he was told the sale was going through. Mr Disselkoen in his email of 5 April 2017 described this conversation. He said that Mr Mohanachandran asked him what he wanted to do. Mr Disselkoen said that if the sale was a definite he would not give the CEO of IPP the pleasure of sacking him. Mr Mohanachandran asked him what he wanted to do to avoid this and Mr Disselkoen asked that he be terminated. Mr Mohanachandran asked him if he would resign but Mr Disselkoen said that he would not resign but would need to be terminated. Mr Mohanachandran said that given their relationship, he would terminate him effective close of business on 31 March 2017.

[29] Mr Disselkoen and Mr Mohanachandran returned to the office where Mr Mohanachandran asked for the termination documentation to be drawn up. Mr Disselkoen was then called into the Boardroom with Mr Mohanachandran to await the documentation. Mr Disselkoen said he commenced reading the Deed but because Mr Mohanachandran was looking over his shoulder he felt uncomfortable. Mr Mohanachandran then left the room to get others to witness the documentation. Mr Disselkoen said he felt pressure to sign and did not seek advice before he did so.

[30] Mr Disselkoen faces a number of hurdles with his application. He will need to establish that he was dismissed and that his employment did not end as a result of a mutual agreement. Further he will need to convince the Court that the Deed was entered into under duress or as a result of misrepresentation such that is not a barrier to his claim. Further he will need to establish that he exercised a workplace right. Mr Disselkoen did not submit that any other provision of the Act was relevant, i.e. s.340 or s.351 or s.352

[31] Based on the limited evidence before me, I am not satisfied that Mr Disselkoen has made out an arguable case that he was dismissed in breach of the general protections provisions of the Act. In addition, based on the evidence before me, I am not satisfied that a Court would find that the Deed was of no effect.

[32] I am therefore not satisfied that the merits of the claim weigh in favour of a finding of exceptional circumstances.

(e) fairness as between the person and other persons in a similar position.

[33] There were no submissions that there were any persons in a similar position.

Conclusion

[34] I am not satisfied that there are exceptional circumstances. Mr Disselkoen has not provided a reasonable explanation for the delay and has not established an arguable case on merits. Merely disputing the dismissal during the 21 day time period is not sufficient to establish that there are exceptional circumstances. Mr Disselkoen’s application for an extension of time is therefore dismissed and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

G. Disselkoen on his own behalf.

A. McKay for the Respondent.

Hearing details:

2017.

Melbourne, by telephone:

7 June.

 1   [2011] FWAFB 975.

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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