Ian Ronald Sherrett v Joondalup Smash Repairs Pty Ltd

[2017] FWC 3637

[2017] FWC 3637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ian Ronald Sherrett
v
Joondalup Smash Repairs Pty Ltd
(C2017/2281)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 10 JULY 2017

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.

[1] On 28 April 2017 Mr Ian Ronald Sherrett (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Joondalup Smash Repairs Pty Ltd (Respondent) (JSR).

[2] Mr Sherrett commenced employment with JSR on 12 January 2016. He was a Spray-painting Tradesman. He says that he was dismissed on 1 August 2016 and the dismissal took effect on that day. 1

[3] The application therefore was lodged 249 days out of time.

[4] JSR submits that Mr Sherrett’s employment came to an end when the business was sold, being 1 October 2016. The application would then be 188 days out of time. 2

[5] 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.

Alleged Contravention

[6] Mr Sherrett submits that he was dismissed due to a workplace injury that caused him to lose all hearing and require the use of a hearing aid in his left ear. A breach of s.340 is alleged. 3

Respondent’s Submissions

[7] JSR submit that Mr Sherrett was not dismissed, however the business was sold on 1 October 2016 whereby Mr Sherrett’s employment was not transferred. 4

[8] They submit their insurers took over responsibility for Mr Sherrett’s workers compensation payments at this time. 5

Legislative scheme

[9] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) The application 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).

[10] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[11] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 6where 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]

[12] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[13] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 7

[14] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 8 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

Background

[15] The parties were advised by 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 listed for hearing on 7 July 2017.

[16] Mr Sherrett was self-represented. JSR was represented by Mr Ron Ballucci of the Motor Trade Association WA pursuant to section 596(4) of the Act.

Matters to be taken into account pursuant to s.366(2)

[17] 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

[18] Mr Sherrett’s reason for the delay in lodging his application was that he was unaware that he had been dismissed from his employment until sometime in March 2017.

[19] JSR strongly contested Mr Sherrett’s submission, providing that Mr Sherrett was advised on 2 September 2016 that the business was being sold and that the new owners were taking over on 1 October 2016. 9

[20] They submit Mr Sherrett was aware that his employment would not continue and that their insurers would make payments to him directly.  10

[21] Further, they provided copies of text messages from Mr Sherrett to his supervisor from 6 September 2016 requesting that his annual leave be paid out. They submit that Mr Sherrett’s entitlements were fully paid out on 8 September 2016. 11

[22] JSR submit that this application has only been made as their insurers ceased payments to Mr Sherrett in March 2017 as he had failed to comply with their directions. They submit there are no extenuating circumstances and that the application should be dismissed. 12

[23] Mr Sherrett made a number of inconsistent submissions and his oral evidence at times contradicted his application and original submission. In his Form F8 application, Mr Sherrett submitted that he was unsure of the date he had been dismissed by JSR 13, however in his original submission he stated that he had been dismissed on 1 August 2016 during a meeting with his WorkCover provider and had no further contact with the employer.14 Mr Sherrett’s oral evidence was that he was not aware that he had been dismissed by the employer at the time the business was sold.

[24] Mr Sherrett submits that he was not aware that the Respondent had sold the business until he was informed by another employee via Facebook communication. Mr Sherrett was unsure of when this communication took place, originally giving evidence that the communication took place only a month or so before he lodged his application, then later advising that it occurred only a week prior to lodging his application, then subsequently stating that it had occurred sometime prior to Christmas in 2016.

[25] Mr Sherrett also gave evidence that JSR ceased paying his wages sometime prior to Christmas in 2016. He also advised that he had attended a meeting with the insurer sometime between November and December 2016 during which he was informed that JSR would no longer be paying him directly and he would continue to receive payment from the insurer.

[26] Mr Sherrett gave further evidence that in November 2016 he met with Freshstart Injury Management, who worked with Mr Sherrett to assist in finding new employment between November 2016 and January 2017. Freshstart made a number of applications on Mr Sherrett’s behalf for positions advertised with other prospective employers. They had secured an interview with Autobarn however Mr Sherrett declined to attend the interview as he did not want to work for Autobarn. Mr Sherrett’s evidence was that he told Freshstart he would find his own avenue for obtaining new employment.

[27] On the evidence before me I am satisfied that Mr Sherrett was aware that he was no longer employed by JSR on or around October 2016. Mr Sherrett provided no other reasons for the delay in making his application.

[28] For this consideration there must be an acceptable reason for the delay 15 and this must be for the whole period that the application was delayed.16 I am not satisfied that Mr Sherrett has provided a reasonable explanation for the delay. This weighs against a finding of exceptional circumstances.

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

[29] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.¹⁷

[30] Mr Sherrett submits that he had sent JSR an email advising them that he wanted to attend the premises and ‘sort it out’. He submits that JSR advised him to take his concerns to the insurer and did not speak to him any further. Mr Sherrett did not advise when this email was sent. 18

[31] JSR submits that Mr Sherrett has taken no steps to dispute his dismissal as he has not been in contact with them since early August 2016. 19

[32] I am not satisfied that the attempt made by Mr Sherrett to dispute his dismissal favours the granting of an extension of time. This factor weighs against granting a further period for Mr Sherrett to lodge his application.

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

[33] Prejudice to the employer will go against the granting of an extension of time. 20

[34] JSR submit that there has been no prejudice to the employer as the business that engaged and employed Mr Sherrett is no longer in operation. 21

[35] Mr Sherrett submits that there has been no prejudice to the employer as they refused to contact him to resolve his issues, and as such he was unsure of whether the business had been sold, shut down or was still in operation. 22

[36] I consider this factor to be a neutral consideration.

(d) Merits of the application

[37] There are a number of facts in dispute regarding this application.

[38] The parties agree that Mr Sherrett was injured in the workplace and subsequently was in receipt of workers’ compensation payments.

[39] Mr Sherrett submits that he had wanted to keep his job but was told he was not allowed to attend work from early August 2016 as JSR no longer required him. 23 He submits that this was done as his employer did not like him taking time off work to attend his medical appointments.24

[40] He submits that when the business was sold he discovered that all of the other staff members stayed on, however he was not offered a role or taken into consideration due to his workers’ compensation claim. 25

[41] JSR submit that after Mr Sherrett’s injury a short term administration position was created for him as they recognised he could not tolerate workshop noises, however the business deemed it unviable to continue with the arrangement. 26

[42] They submit that Mr Sherrett attended a meeting on 1 August 2016 with representatives from JSR, the insurer and the return to work provider. Mr Sherrett abruptly left this meeting and failed to respond to attempts by JSR to contact him.

[43] JSR submit Mr Sherrett remained employed by them until the sale of the business, however had been liaising with their insurers and workplace assessors since 1 August 2016 as he had refused to discuss the matter or attend further meetings with the Respondent. 27

[44] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 28 However, the Commission cannot make any findings on contested matters without hearing evidence.

[45] Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application. 29 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

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

[46] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 30 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion neutral.

Conclusion

[47] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[48] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 31

[49] 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.

[50] An order 32 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

I. Sherrett for the Applicant;

R. Ballucci for the Respondent.

Hearing details:

2017

07 July (Telephone hearing).

 1   Exhibit A2

 2   Exhibit R1

 3   Exhibit A2

 4   Exhibit R2

 5   Ibid

 6   [2011] FWAFB 975

 7   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

 8   [2016] FWCFB 349

 9   Exhibit R2

 10   Ibid

 11   Ibid

 12   Exhibit R1

 13   Exhibit A2

 14   Exhibit A1

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 16   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409

17 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 18   Exhibit A1

 19   Exhibit R1

 20   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 21   Exhibit R1

 22   Exhibit A1

 23   Ibid

 24   Ibid

 25   Ibid

 26   Exhibit R2

 27   Ibid

 28   Haining v Deputy President Drake (1998) 87 FCR 248, 250

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

 30   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 31   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 32   PR594435

Printed by authority of the Commonwealth Government Printer

<Price code C, PR594434>