Higelin v Anglican Retirement Villages Diocese of Sydney

[2016] FWC 1514

[2016] FWC 1514

DECISION

Fair Work Act 2009

s.365—General protections

Axel Higelin

v

Anglican Retirement Villages Diocese of Sydney T/A Anglican Retirement

Villages

(C2016/2231)

DEPUTY PRESIDENT KOVACIC CANBERRA, 9 MARCH 2016

Application to deal with contraventions involving dismissal – extension of time – no

exceptional circumstances warranting allowing a further period for the making of an

application – application dismissed.

[1]        Mr Axel Higelin (the Applicant) made an application which was received by the Fair

Work Commission (the Commission) on 13 January 2016 under s.365 of the Fair Work Act

2009 (the Act) alleging that he had been dismissed by Anglican Retirement Villages Diocese

of Sydney T/A Anglican Retirement Villages (ARV – the Respondent) on 18 December 2015

in contravention of the general protections provisions in the Act.

[2]        As the application had been lodged five days outside the statutory timeframe for

lodgement, the Commission issued Directions on 28 January 2016 requiring the parties to file

an outline of submissions and any evidentiary material they intended to rely on regarding the

extension of time issue.

[3]        The extension of time issue was the subject of a telephone hearing on 8 March 2015.

At the telephone hearing, Mr Higelin appeared on his own behalf, while Mr Matthew Bond

appeared for ARV.

[4]        For the reasons set out below I have concluded that I am not satisfied that there were

exceptional circumstances warranting the granting of a further period for the making of an

application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5]        Mr Higelin commenced employment with ARV as an Occupational Therapist on

23 November 2015, though prior to that he had been working full time as a contractor at

Elizabeth Lodge, one of the Anglican Retirement Villages, since 9 June 2015.

[6] Mr Higelin was effectively stood down when he was placed on paid leave on

14 December 2015 following allegations of inappropriate behaviour towards another staff
[2016] FWC 1514

member and pending an investigation of those allegations. On 16 December 2015, ARV

wrote to Mr Higelin setting out a number of allegations and inviting him to attend a meeting

on 18 December 2015 to respond to the allegations. Mr Higelin acknowledged that he was

advised of his dismissal on 18 December 2015 but contended that he had been told that his

dismissal was because he “did not fit in with ARV’s Christian values.” Mr Higelin was

advised that he could bring a support person to that meeting.

[7]        Mr Higelin was dismissed following that meeting, with his dismissal taking effect

immediately. ARV submitted that Mr Higelin was verbally advised of the reasons for his

dismissal on 18 December 2015 and that it wrote to Mr Higelin on 4 January 2016 (by

Express Post) confirming the decision to terminate his employment. Mr Higelin received that

letter on 6 January 2016.

[8]        In other developments, Mr Higelin’s solicitors wrote to ARV on 24 December 2015

foreshadowing a general protections application and proposed a settlement to resolve the

dispute.

[9]        As previously noted, Mr Higelin’s general protections application was received by the

Commission on 13 January 2016, five days outside the 21-day statutory timeframe for

lodgement specified in s.366(1)(a) of the Act. In his application, Mr Higelin alleges that he

was dismissed in contravention of s.340 of the Act which deals with protection concerning the

exercise or otherwise of a workplace right.

The Relevant Legislation

[10]      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

[11]      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.

[2016] FWC 1514

(a) The reason for the delay

[12]      Mr Higelin stated in his application that the reason for the delay was that he was

waiting for formal written communication from ARV outlining the reasons for his dismissal,

adding that he did not receive that letter until 6 January 2016 which only gave him two days

to lodge his application. Mr Higelin further submitted that as English was not his first

language it took him some time to understand the law and requirements for an application and

to prepare his application. At the telephone hearing, Mr Higelin contended that his dismissal

had triggered depression and that he had found it difficult to function since his dismissal. Also

at the hearing, Mr Higelin, in response to a question from the Commission, stated that he did

not commence preparing his general protections application until after he had received the

termination letter on 6 January 2016 as it was only after he had received that letter that he had

some sense of what was required.

[13]      ARV submitted that Mr Higelin had been verbally informed at the conclusion of the

meeting on 18 December 2015 that he had been dismissed and the reasons for his dismissal.

At the telephone hearing, ARV reiterated that Mr Higelin had been advised of the reasons for

his dismissal on 18 December 2015 and disputed that he had been told that his dismissal was

because he “did not fit in with ARV’s Christian values.” ARV also acknowledged that the

delay in providing the termination letter to Mr Higelin was not ideal.

[14]      As mentioned above, Mr Higelin’s solicitors wrote to ARV on 24 December 2015.

Among other things that letter stated that “No grounds for the termination of Mr Higelin by

Anglican Retirement Villages have been formally conveyed to Mr Higelin” (underlining

added). Further, I note that Mr Higelin’s solicitors foreshadowed a general protections

application in that correspondence, suggesting that Mr Higelin would have been provided

with advice at to the basis of any such application. While it is disputed as to whether or not

Mr Higelin was advised of the reasons for his dismissal on 18 December 2015, I am inclined

to the view that Mr Higelin was advised. In those circumstances, it is not clear why

Mr Higelin could not have commenced the research and preparation of his general protections

application prior to receiving the termination letter on 6 January 2016.

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

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

[16]      It was not disputed that Mr Higelin’s solicitors wrote to ARV on 24 December 2015

foreshadowing a general protections application and proposing a basis for resolving the

dispute. However, I note that the letter was sent shortly after Mr Higelin’s dismissal and well

inside the 21 day timeframe, leaving sufficient time for him to lodge a general protections

application within time. I therefore consider this factor to be a neutral consideration.

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

[17]      Neither party directly addressed this factor in their submissions, though ARV

submitted that were an extension of time granted it may be required to engage external legal

assistance to defend the matter and as a result have to divert resources which could otherwise

be put towards its core business of caring for the elderly.

[18]      Against that background, I consider this factor to be a neutral consideration.

[2016] FWC 1514

(d) The merits of the application

[19]      Mr Higelin submitted that part of his general protections under the Act included the

right to be given a warning prior to dismissal, adding that no warning was provided by ARV

in the course of his employment. Mr Higelin also submitted that it was his workplace right to

ensure that his job was not changed to his disadvantage and cited as a further contravention of

the Act that he had not been provided with a Separation Certificate.

[20]      ARV submitted that there was no connection between the action taken by it in

dismissing Mr Higelin and Mr Higelin either having or having exercised a workplace right

under s.340 of the Act. ARV further submitted that it was not clear how it had contravened

either a workplace right under s.341 or the protections in ss.346 or 351 of the Act.

[21]      Mr Higelin was unable to point to any link between a workplace right that he had or

had not exercised and his dismissal. In those circumstances, the merits of his application do

not appear particularly compelling. This does not point to the existence of exceptional

circumstances.

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

[22]      Mr Higelin pointed to, among other things, the practical difficulty of obtaining legal

advice in the lead up to and over the Christmas/New Year period.

[23]      ARV reiterated that Mr Higelin had been verbally advised on 18 December 2015 that

his employment was terminated and provided reasons for that decision, adding that the

correspondence from Mr Higelin’s solicitors indicated that he understood that his

employment had been terminated on 18 December 2015. More specifically, ARV contended

that Mr Higelin had significant opportunity to submit his general protections application from

18 December 2015.

[24]      As neither party directly addressed this factor in their submissions, I consider it to be a

neutral consideration.

Conclusion

[25]      The question of exceptional circumstances was dealt with by a Full Bench of the then

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Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group	(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,
[2016] FWC 1514

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.”

[26]      Having considered all of the factors set out in s.366(2) and drawing on Nulty, 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).

[27]      Accordingly, the application will be dismissed. An order to that effect will be issued

with this decision.

Appearances:

A. Higelin on his own behalf.

M. Bond for the Respondent.

Hearing details:

2016.

Canberra and Sydney (telephone hearing):

March 8.

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[2011] FWAFB 975