Iain Alexander Ferguson v B & E Poultry/Young 8 Pty Ltd T/A B & E Foods

[2018] FWC 1403

[2018] FWC 1403

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Iain Alexander Ferguson
v
B & E Poultry/Young 8 Pty Ltd T/A B & E Foods
(C2017/7094)

COMMISSIONER SIMPSON BRISBANE, 20 MARCH 2018

Application to deal with contraventions involving dismissal.

[1] This application concerns an application made in accordance with section 365 of the Fair Work Act 2009 (the Act) by Mr Iain Ferguson who alleges his employment was terminated by B & E Poultry/Young 8 Pty Ltd T/A B & E Foods (the Employer) in contravention of the general protections provisions of the Act. The Employer denies it was in contravention of the Act, and contends Mr Ferguson was dismissed for poor performance.

[2] It was not disputed by the parties that Mr Ferguson was terminated on 13 November 2017. The last day in which the application could have been filed within time was Monday 4 December 2017. Mr Ferguson’s general protections application was lodged on 21 December 2017, and was therefore made 15 days outside the 21 day period prescribed by the Act. The application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).

[3] The Act provides that a person who has been dismissed and applies to the Commission for it to deal with a general protections application pursuant to s.365 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.

[4] Section 366 of the Act provides:

“Section 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.”

Background

[5] On 21 December 2017 the Commission received a “Form F8 – Application” from Mr Ferguson. Part 1.4 of the Application contains a question, ‘Are you making this application within 21 calendar days of your dismissal taking effect?’ Mr Ferguson provided in his application:

“I was dealing with the Human Resources division who indicated they wanted an outcome, but needed to do an internal investigation. They were given until COB Friday 15 December 2017.”

[6] On 9 February 2018 the parties were invited to make submissions in relation to the extension of time issue. The matter was listed for hearing on 8 March 2018 by telephone to determine whether an extension of time should be granted. At the hearing, Mr Ferguson represented himself. The Employer was represented by Mr Bill Wang, General Manager and Mr Nick Smith.

Section 366(2)(a) – reason for the delay

[7] Mr Ferguson submitted the reason for the delay was due to being in settlement discussions with the Employer that lasted for three weeks. He submitted the Employer indicated to him that it wanted to reach a settlement outside of Fair Work.

[8] Mr Ferguson submitted communications with the Employer regarding settlement ceased on Friday 15 December 2017. He submitted he had received an email from Mr Alex Wang from the Employer on 14 December 2017 asking for further information. Mr Ferguson said he sent through the information, but did not receive a response after that.

[9] I questioned Mr Ferguson why he did not file his application on 15 December, or on any day before 21 December. Mr Ferguson said he wanted to speak to his solicitor before filing his application, and that it took three days to organise this meeting. Mr Ferguson submitted he had a meeting with his solicitor on Wednesday 19 December 2017.

[10] I then questioned Mr Ferguson why he did not then file his application on the 19 December after the meeting with his solicitor, or the next day on 20 December 2017. Mr Ferguson did not appear to provide a plausible explanation for this further delay.

[11] Mr Ferguson continued to press the reason for the delay was due to settlement discussions between himself and the Employer.

[12] I gave the Employer an opportunity to respond to Mr Ferguson’s evidence on this point, though it did not provide any specific submissions.

[13] I am not inclined to accept Mr Ferguson’s evidence as providing a sufficient reason for the delay in filing his application. The fact Mr Ferguson had entered settlement negotiations with the Employer was not in itself a factor that prevented him from filing an application within the time frame. There is no plausible reason why Mr Ferguson could not have filed the application with the Commission by the deadline 4 December 2017, and continued to have settlement discussions with the Employer.

[14] Mr Ferguson said the last day he received communication from the Employer regarding settlement negotiations was 14 December 2017. Even if I were to accept the delay between 4 December and 14 December, Mr Ferguson did not provide a sufficient explanation to explain the delay between 14 December and 21 December.

[15] I am not satisfied it was necessary for Mr Ferguson to wait for advice from his solicitor before submitting the application form on 15 December. By this stage the application was already some 11 days out of time, and he ought to have filed as soon as possible. Even if I were to accept this further delay, Mr Ferguson did not provide a reasonable explanation for why he did not file the application on 19 December 2017 after speaking with his solicitor.

[16] Mr Ferguson gave evidence that he had been admitted to hospital following medical issues, and provided a report from his doctor. However, the dates of these admissions preceded the date of his termination, and therefore cannot be considered as a reason for the delay in filing his application.

[17] The reason for delay does not tend to support the case for the granting of an extension.

Section 366(2)(b) – any action taken by the person to dispute the dismissal

[18] Mr Ferguson said that from 14 November, the day after he was dismissed, he attempted to engage with his Employer to enter settlement discussions regarding the dismissal.

[19] The Employer provided in its written submissions that Mr Ferguson did not take any steps to dispute the dismissal. During the course of the Hearing Mr Tse, the Human Resources Recruiter, gave evidence that on 15 November, after the Employer had paid Mr Ferguson his notice and entitlements, it received an email from Mr Ferguson advising he had spoken to a solicitor. Mr Tse said that the issues raised by Mr Ferguson in this email were in relation to a personal matter he had with Mr Bill Wang, rather than his dismissal.

[20] Mr Ferguson said he did raise issues in relation to bullying and intimidation he experienced whilst he was employed.

[21] I am satisfied Mr Ferguson took steps to dispute his dismissal. I accept he took action almost immediately after his termination when he sought to enter settlement discussions with his employer. His action tends to support the case for the granting of an extension.

Section 366 (2)(c) - prejudice to the employer

[22] The parties did not give specific evidence on this point. While it is possible the delay in filing could present a slight inconvenience to the Employer, it would not be sufficient enough to weigh in favour of not granting an extension.

Section 366 (2)(d) - the merits of the application

[23] Mr Ferguson submitted that he was expecting a review on 23 November 2017, however was dismissed on 13 November 2017. Mr Ferguson submitted on the morning of 13 November he arrived at work where Mr Wang said to Mr Ferguson that he had not seen him at work the previous Wednesday to Friday. Mr Ferguson submitted he told Mr Wang that he had been present at work, and that he had been busy and had been in early. He submitted Mr Wang then said to him “fine, you’re terminated” and that there was no explanation or reason.

[24] Mr Ferguson submitted he was subject to intimidation and bullying throughout his employment that resulted in him being hospitalised. I questioned Mr Ferguson what he thought was the reason behind this alleged intimidation and bullying. Mr Ferguson said the reason for this bullying and intimidation was that this was Mr Wang’s way of pushing staff to make more sales.

[25] The Employer disputed Mr Ferguson’s claims entirely. It submitted there were multiple sales meetings that involved Mr Ferguson where he was advised sales targets needed to be met and he was lacking in performance. It disputed this amounted to bullying. Further the Employer submitted when Mr Ferguson was terminated, the reason given to him was poor performance. The Employer submitted after Mr Ferguson was terminated he stormed out of the office and said he was keeping the fuel card.

[26] In cases where there are factual disputes, the merits of the application would usually be a neutral consideration when determining whether to extend time. However, in this particular case, it appears that Mr Ferguson has not been able to provide any explanation as to why he says his termination was unlawful. Mr Ferguson made submissions that dismissal was unfair for a range of reasons, though this is not enough to demonstrate the termination was in contravention of the general protections provisions of the Act.

[27] With the absence of any explanation as to why his termination was unlawful, it appears the chances of Mr Ferguson’s application succeeding would be slim. The merits of the application do not tend to support the case for the granting of an extension.

Section 366 (2)(e) - fairness as between the person and other persons in a like position

[28] The parties did not make submissions on this point and this does not appear to be a relevant matter is this case. I am satisfied that it is appropriate to regard the consideration under s 266(2)(d) as a neutral matter.

Conclusion

[29] I have taken into account each of the elements of s.366(2) of the Act. This matter does not give rise to exceptional circumstances that would warrant the granting an extension of time beyond the 21 day time limit. On that basis the application for an extension of time is dismissed.

COMMISSIONER

Appearances:

Mr I Ferguson appearing on his own behalf

Mr B. Wang and Mr C. Tse for the Respondent

Hearing details:

2018,

Brisbane:

March 8

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