Ivan Pehar v Ventia Pty Ltd T/A Ventia

[2019] FWC 1429

[2019] FWC 1429

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ivan Pehar
v
Ventia Pty Ltd T/A Ventia
(C2018/7482)

DEPUTY PRESIDENT LAKE BRISBANE, 5 MARCH 2019

Application to deal with contraventions involving dismissal – application made out of time – request for an extension of time

INTRODUCTION

[1] Mr Ivan Pehar (the Applicant) lodged an Application (Application) pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) alleging that he was dismissed by Ventia Pty Ltd T/A Ventia (the Respondent) in contravention of the Act’s general protections provisions.

[2] Section 366(1) of the Act provides that an Application made pursuant to section 365 of the Act must be lodged within 21 days after the dismissal took effect. The 21 day period commences on the day following the date of dismissal.

[3] The Applicant states in his Application that his dismissal took effect on 6 December 2018. The Application was lodged on 28 December 2018 at 2:23pm AEST. The Applicant’s Application was therefore made 15 hours outside of the statutory 21 day period.

[4] The Fair Work Commission (FWC) may allow a further period for exceptional circumstances under section 366(2) of the Act.

BACKGROUND

[5] The Applicant commenced employment with the Respondent on 1 November 2018 as a Payroll Compliance Specialist on a fixed term contract.

[6] The Applicant’s contract of employment is dated 23 October 2018 (the Contract). The Contract specified that the Applicant’s employment would terminate on 8 February 2019 and that he would be subject to a 3 month probationary period. Therefore based on the length of the Applicant’s employment period and the length of the Applicant’s probationary period specified within the Contract, the period of the Applicant’s employment was almost entirely contained within a probationary period save for one week.

[7] On 6 December 2018, the Respondent terminated the Applicant’s employment at a meeting with Ms Wade (Group Payroll Manager) and Ms Martin (Group People and Capability Business Partner) of the Respondent (Termination Meeting).

[8] In a letter of termination signed by Ms Wade and dated the same date (and provided to the Applicant at the Termination Meeting), the Respondent stated that:

“a review [had] recently been undertaken of [the Applicant’s] appointment and unfortunately [the Applicant did] not have the requisite qualifications or necessary experience for [the] position.”

[9] The Applicant was paid one week’s wages in lieu of a one week notice period. Whilst this is not a matter for the FWC to determine in this instance, one week of notice does appear to be at odds with the ‘Notice period’ terms of the Contract.

[10] Notwithstanding the letter of termination being conveyed on 6 December 2018, the Applicant lodged his Application with the FWC at 2:23pm AEST on 28 December 2018.

[11] The correspondence on the FWC’s file indicates that on 8January 2019 the FWC General Protections Team (GPT) advised the Applicant and the Respondent that the Applicant had filed his Application outside of the legislated timeframe, being 21 days.

[12] The GPT sought the consent of the Respondent to progress the matter to a conciliation teleconference to hear the Applicant’s Application. As it was entitled to do, Venetia did not consent. Accordingly, a Jurisdictional Objection Hearing (extension of time) (Hearing) was therefore listed before me on 4 February 2019. The Applicant was represented in at the Hearing by his partner, Ms Simone Dixon (Ms Dixon). The Respondent was represented by Ms Skinner (an employment lawyer at the Respondent), Ms Wade (Group Payroll Manager), Mr Mollison (Employee Services Manager), and Ms Martin (Group People and Capability Business Partner).

[13] Directions requiring the filing of materials in the Hearing were issued to the parties on 14 January 2019.

[14] By no later than 4:00pm on 22 January the Applicant was directed to file in the FWC and serve on the Respondent a statement setting out the basis with which he sought a further period to make his application. By no later than 4:00pm on 29 January 2019 the Respondent was directed to file in the FWC and serve on the Applicant, a statement setting out the basis with which he sought a further period to make his application. Both parties complied with these directions.

[15] In determining whether the FWC is satisfied that there are exceptional circumstances to allow a further period of time, it refers to the relevant statutory provisions and to matters of precedent before the courts and the FWC to determine whether there are exceptional circumstances in the Applicant’s case.

RELEVANT STATUTORY PROVISIONS

[16] Section 366(1) of the Act provides that an application under section 365 (a general protections 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).”

[17] Section 366(2) of the Act sets out the circumstances in which the FWC may grant an extension of time as follows:

“(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.”

[18] The Full Bench of the then Fair Work Australia in the matter of Nulty v Blue Star Group considered the meaning of exceptional circumstances as follows:

“[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…

…

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.” 1

[19] The test of exceptional circumstances establishes a ‘high hurdle’ for an applicant to overcome for an extension to be granted. 2

[20] A decision to extend time under section 366(2) involves the exercise of discretion by the FWC. 3

[21] Whether exceptional circumstances exist requires consideration of all the relevant circumstances. 4 I will consider each of these matters in turn.

CONSIDERATION

s.366(2)(a) – The reason for the delay

[22] As the Applicant’s dismissal took effect on 6 December 2018. He was therefore required to lodge his Application on or by 27 December 2018.

[23] The Applicant stated that:

“…having almost finalized (sic) the details of [his] claim on 25 December [2018] [he] “found [he] needed to clarify “two of the questions in the application.” 5

[24] The Applicant further stated that:

“the 21 days to file [his] claim, coincided with the FWC being closed for an extended period for the festive season.” 6

[25] The Applicant further stated that:

“…he “had not anticipated…the [FWC] being closed on …27 December [2018].” He stated further that “the additional day of closure on 27 December [2018], on top of the two public holidays (25 and 26 December) meant [he] was unable to contact the [FWC] on the 27 [December 2018] to clarify these two questions [to] hence finalize (sic) [his] application.” 7

[26] The Applicant further stated that “[he] contacted the [FWC] on 28 December [2018], clarified the questions and submitted the application on 28 December [2018].”

[27] At the Hearing, Ms Dixon submitted that the Applicant had asked him assist with the preparation of the documentation in filing his Application. Ms Dixon assisted with the preparation of the documentation, but then had to travel to see her sick father from 20 December 2018 until the 27 December 2018.

[28] Further at the Hearing, Mr Dixon submitted that either she or the Applicant contacted the FWC for assistance on 27 December 2018 to lodge the Applicant’s Application. However, the FWC was closed as it had a Concessional Day.

[29] The prima facie position in general protections claims, as well as in unfair dismissal matters, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend. 8

[30] The period of the delay needs to be considered in its entirety in determining whether there was a credible reason for the delay. 9

[31] The particular circumstances in the Applicant’s case have similarly been considered before by the Full Bench of the FWC (FWCFB) in Kristina Cahill v Bstore Pty Ltd (Cahill). 10

[32] In Cahill, at first instance, the FWC found that the appellant (Miss Cahill) had lodged an unfair dismissal application outside of the 21 day time limit specified in section 394 of the Act and that an extension of time should be not granted. Miss Cahill appealed the decision to the FWCFB on the basis that the termination of her employment occurred on a weekend (being either Saturday 13 September or Sunday 14 September 2014) and consequently, depending on the date the termination took effect, the 21^st day either fell on either Saturday 4 October or Sunday 5 October 2014. Miss Cahill lodged her application on Monday 6 October 2014.

[33] Miss Cahill asserted that the FWC erred in its decision because the Act should be applied consistent with section 36 of the Acts Interpretation Act 1901 (Cth) which states:

“Calculating time

(2) If:

(a) an Act requires or allows a thing to be done; and

(b) the last day for doing the thing is a Saturday, a Sunday or a holiday (emphasis added);

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday (emphasis added).

Example: If a person has until 31 March to make an application and 31 March is Saturday, the application may be made on Monday 2 April.

(3) In this section:

‘holiday’, in relation to the time for doing a thing, means:

(a) a day that is a public holiday in the place in which the thing is to be or may be done; and

(b) if the thing is to be or may be done at a particular office or other place – a day on which the place or office is closed for the whole day (emphasis added).”

[34] In Cahill, the Respondent consented to the appeal being allowed on the basis that Miss Cahill’s application was made within 21 days after the dismissal took effect by virtue of operation of the Acts Interpretation Act 1901 (Cth).

[35] Notwithstanding the Respondent’s consent, the FWCFB were satisfied that Miss Cahill’s unfair dismissal application should be taken to have been lodged within 21 days consistent with the requirements of the Acts Interpretation Act 1901 (Cth). 11

[36] On the material, the circumstances are sufficiently comparable to these considered by the FWCFB as set out. The clear meaning of the Acts Interpretation Act 1901 (Cth), suggests that if a statute requires or allows an act to be done (section 36(2)(a)) and the last day for such falls on a Saturday, a Sunday or a holiday(section 36(2)(b)) then then the act may be done on the next day that is not a Saturday, a Sunday or a holiday (emphasis added).

[37] Therefore the last day for lodging the section 365 Application for the Applicant was 27 December 2018 and this was a holiday (Concessional Day) for the FWC. Prior to this date was of course 25 December 2018 and 26 December 2018, Christmas Day and Boxing Day. Two other holidays.

[38] On the clear meaning of section 36 of the Acts Interpretation Act 1901 (Cth), the Act pursuant to section 365 required that the Applicant’s lodgment occur 21 days after his dismissal took effect. The last day for filing the Applicant’s Application was a holiday (Concessional Day). As the lodging of the Applicant’s Application may have been done in person at the Brisbane Registry of the FWC (or indeed in person at any other registry of the FWC) which was closed on that day, I take the view that the 27 December 2018 was a ‘holiday’ for the purposes of section 36 of the Acts Interpretation Act 1901 (Cth).

[39] It therefore follows that the lodging may be done on the next day that is not a holiday, being 28 December 2018. This is the date in which the Applicant filed his application.

[40] The facts of this matter in relation to ‘the reason for the delay’ provide a strong ground in favour of allowing the Applicant an extension of time for the purposes of filing his Application.

s.366(2)(b) – Any action taken by the person to dispute the dismissal

[41] Action taken by an applicant to contest the termination, other than by virtue of the Application, will be relevant and may weight in favour of granting an extension of time. 12

[42] According to the Applicant’s evidence at the Hearing, the Applicant stated that he did object to his dismissal at the Termination Meeting.

[43] However, this does appear to be the only action taken by the Applicant to dispute his dismissal with the Respondent, other than through the filing of the Application.

[44] In these circumstances and on balance the facts indicate on this criterion that the Applicant should not be allowed an extension of time.

s.366(2)(c) – Prejudice to the employer (including prejudice caused by the delay)

[45] Prejudice to the employer will go against the granting of an extension of time. Mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 13

[46] The delay in filing the application was 15 hours.

[47] On this factor, the Respondent submitted that “time and resources will need to be committed to dispute resolution processes” due to the Applicant’s Application being late. Due to the less than one day delay in filing his Application, the Applicant’s delay should not have otherwise impacted the normal timeline for the progress of his Application.

[48] Whilst it is in within the Respondent’s entitlement to not consent to participate in the conciliation of the matter, their election to proceed to the Hearing cannot be viewed as prejudicial towards the Respondent, on the part of the Applicant.

[49] In relation to this matter, there is not sufficient evidence before me that there would be undue prejudice to the Respondent should I be of the mind to allow an extension of time.

s.366(2)(d) – The merits of the application

[50] With respect to the merits of an application for an extension of time, the FWC is not generally in a position to make findings of fact on a contested factual matrix and where evidence from both parties is yet to be fully adduced.

[51] The Applicant submitted that adverse action was taken against him by the Respondent “by altering his position” and that he was dismissed on the “[basis] of this alteration.” 14 He further submitted that he believed that the Respondent did this on the basis of him “exercise[ing] a workplace right by participating in a process or proceedings under a workplace law.” The Respondent denied these submissions.15

[52] The Applicant’s submissions regarding how the Respondent acted in contravention of the Act were vague and imprecise. However, the Respondent’s response to the Applicant’s submissions were similarly lacking in precision.

[53] On balance therefore and without the possibility at this stage of closer examination as to the exact allegations of the Applicant and the response of the Respondent to those allegations, this is considered a neutral factor.

s.366(2)(e) – Fairness as between the person and other persons in a like position

[54] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. 16

[55] Both parties did not provide positive evidence one way or another on this criterion. There are of course matters where in cases of short delays, extensions have not been granted. The contrary is also true.

[56] In the current matter, no reference was made to persons in a like position. This matter is considered to be neutral.

Conclusion

[57] The Applicant has provided an explanation for the approximate 15 hour delay in filing his Application. The material presents a combination of circumstances there were out of the ordinary course of events.

[58] In reaching this conclusion I have considered the illness of Ms Dixon’s father and the Christmas holiday period and the Concessional Day for the FWC on 27 December 2018.

[59] While these are not unique or unusual events by themselves, when they are combined with the explanation of the Applicant or Ms Dixon attempting to contact the FWC on 27 December 2018 to make enquiries regarding the Applicant’s Application only to realise that it was closed for a Concessional Day, do render these circumstances exceptional.

[60] Finally, the FWCFB considered a similar matter to this in the past and I do not intend to depart from its considered view. I am therefore satisfied that there are exceptional circumstances warranting the Applicant an extension of time to lodge his Application. I shall exercise my discretion to allow the Applicant lodge his Application until 28 December 2018.

[61] Pursuant to section 366(2) of the Act, the extension of time is granted. The Applicant’s Application will be progressed by way of a conference at a time and date to be advised. I Order accordingly.

DEPUTY PRESIDENT

 1   Nulty v Blue Star Group[2011] FWAFB 975

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 3   Halls v McCardle and Ors [2014] FCCA 316

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [38].

 5   Applicant’s Outline of argument: Extension of time at [1d.]

 6   Ibid.

 7   Ibid.

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299-300].

 9   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 403, [408-409].

 10   Kristia Cahill v Bstore Pty Ltd[2015] FWCFB 103, citing Acts Interpretation Act 1901 (Cth) ss.36(1), (2) and (3).

 11   Ibid at [6]

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [300].

 13   Ibid.

 14   Applicant’s Outline of argument: Extension of time at [1h.].

 15   Ibid.

 16   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

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