James Seddon v DKSH Healthcare Australia Pty Limited

[2023] FWC 1278

[2023] FWC 1278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

James Seddon
v

DKSH Healthcare Australia Pty Limited

(C2023/2410)

COMMISSIONER YILMAZ MELBOURNE, 31 MAY 2023

Application to deal with contraventions involving dismissal – extension of time – exceptional circumstances – application granted

1. This decision was made ex tempore on transcript on 30 May 2023. In making my decision on transcript, I reserved the right to add to or amend my published reasons for decision. An Order giving effect to this decision was published on 31 May 2023 in PR762662.

1. On 27 April 2023, Mr James Seddon lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against the Respondent, DKSH Healthcare Australia Pty Limited (DKSH). In his application, Mr Seddon cites a breach of s.352 temporary absence- illness or injury alleging his termination of employment was due to his taking a period of sick leave.  

1. DKSH objects to the application noting that the application is outside the statutory timeframe and disputes any contravention of the general protections provisions.  

1. Both parties were represented. Mr Seddon by Ms Eve Limboro of Unfair Dismissal Experts (UDE) and DKSH by Ms Tamara Stevanovic of Streeterlaw. Ms Abir Matri, HR Manager appeared for DKSH.  

1. Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

1. Mr Seddon contends that the Commission should grant the application for an extension of time as the delay was due to representative error.

Consideration

1. General protections applications involving dismissal must be made within 21 days. However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

‘(a)        The reason for the delay; and

(b)       Steps taken to dispute the termination; and
(c)       Prejudice to the employer; and
(d)       Merits of the application; and
(e)       Fairness between the person and other persons in a like position’

1. The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[1] where it was held that:

“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 regular 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.”[2]

1. I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

1. In terms of the reason for the delay, Mr Seddon contends that upon his termination of employment he contacted UDE and provided a statement for the purpose of lodging an application. In addition, as he did not hear from UDE he made contact with another organisation, A Whole New Approach (AWNA) and provided a statement to them. He submits that he was aware that AWNA filed an application on 21 March 2023 (C2023/1585). However, he also submits that at the time that AWNA filed an application, he was unaware that UDE filed an application earlier on 20 March 2023 (C2023/1583). When AWNA filed the application they also filed a notice of discontinuance on 24 March 2023 for matter C2023/1583.

1. Later that day Mr Seddon became aware of the notice of discontinuance. He immediately contacted the Fair Work Commission advising that he did not instruct AWNA to discontinue his application in C2023/1583. During that call, he informed the Commission that he had approached two organisations but chose to proceed with UDE.

1. Following Mr Seddon’s phone call, the Commission created a new matter, C2023/1588, with UDE listed as the Mr Seddon’s representative and including the original filing date of 20 March 2023.

1. It is noted that C2023/1585 was not served on the employer.

1. A conciliation conference was scheduled for 2 May 2023. A week prior to this, Mr Seddon sent a text message to UDE as he had not received correspondence from them for a while. However, on 26 April 2023 he received notification from the Commission that UDE filed a notice of discontinuance earlier that day. Again, Mr Seddon was aggrieved by the actions of his representative and therefore contacted UDE and advised the Commission that he did not instruct UDE to file the notice of discontinuance. The Commission informed the parties that the file was closed and the conciliation conference was cancelled. UDE submit their administrator incorrectly assumed Mr Seddon personally discontinued his application in C2023/1583. They submit, their administrator misread the case numbers and believing the Commission had not properly received the notice of discontinuance, on 26 April 2023 they mistakenly filed a notice of discontinuance in C2023/1588.

1. After communicating with Mr Seddon on 27 April 2023 regarding his application UDE attempted to recall the notice of discontinuance filed by its office. The Commission advised that the matter was closed and UDE filed a new application on 27 April 2023.

1. DKSH accepts that the reasons for delay was due to the actions of UDE and not attributable to the actions of Mr Seddon.

1. Relevant to this consideration is the role of Mr Seddon and whether the representative error is grounds for an extension of time. The Applicant in this application is blameless for the carelessness and /or poor judgement of his representatives. Firstly, by the actions of AWNA who discontinued an application by another representative without advising Mr Seddon or seeking his instruction. Secondly, by the actions of UDE for its failure to check case numbers carefully and allowing an administrator to file a notice of discontinuance, also before obtaining instructions from its client. However, this poor conduct by representatives should not be a reason to disadvantage the applicant when he is blameless. Having considered the submissions, I do consider this consideration to weigh in favour of Mr Seddon. 

Steps taken to dispute the termination

1. Mr Seddon confirms that he did not take any action to dispute his dismissal with the DKSH following his dismissal. Consequently, I do not consider that this consideration weighs in his favour.

Prejudice to the employer

1. While DKSH raised its concern about inconvenience and the potential to be subject to four separate applications it did not argue prejudice. Mr Seddon also submits that the error did not inconvenience DKSH. Noting an absence of prejudice, I consider this factor to be neutral.

Merits of the application

1. Mr Seddon contends that his absence on a period of sick leave was a “substantive and operative reason” for his dismissal and he further contends this constitutes adverse action.

1. DKSH dispute the dismissal was due to the taking of a period of sick leave. They submit that Mr Seddon’s termination was due to him being intoxicated while on the first week of training in Sydney, and him being unreasonably outspoken requiring senior managers to speak to him. Further on the morning of 17 February 2023 the hotel alerted the respondent to prank phone calls made by Mr Seddon and another work colleague. These calls resulted in fire, police and ambulance being called. The hotel room door to Mr Seddon’s room was broke into by emergency services to check on his welfare after Mr Seddon did not respond. The damage to the hotel caused by the break in, was incurred by DKSH. Mr Seddon was subsequently given a first and final warning ahead of the second week of training in Sydney to commence on 21 February 2023. DKSH submit that Mr Seddon’s conduct remained a concern due to excessive drinking and turning up late without reasonable cause. DKSH determined to terminate Mr Seddon’s employment during the period of probation. Termination of employment did not occur until 6 March 2023 when Mr Seddon returned to work after his absence on sick leave.

1. Mr Seddon disputed the submissions of DKSH. The facts are contentious and both parties submit they have extensive evidence in support of their respective positions. While Mr Seddon will have difficulty demonstrating the causal relationship given the facts are likely to be supported by the hotel and senior management, I nevertheless cannot make any assessment of the merits. For these reasons I consider this consideration neutral.

Fairness between the person and other persons in a like position

1. Both parties did not make submissions in relation to this consideration. I note that the s.366 of the Act requires applications to be filed within 21 days and that an extension of time may be granted in exceptional circumstances as specified in s.366(2). In other general protections matters, the bar is considered quite high in order for an extension of time to be granted.

1. However, as per Dean-Villalobos v QGC Limited T/A QGC[3] it is generally considered an exceptional circumstance where an application is lodged out of time due to the error of a representative. Having said that, I must take into account any action that Mr Seddon has taken on his own part to ensure his application was properly dealt with.

1. As stated above, Mr Seddon took action to contact the Commission each time he was informed that one of his applications was discontinued by one of his representatives. He also took steps to engage with UDE by text, prior to them discontinuing his application in C2023/1588.

1. Upon consideration of Mr Seddon’s actions, I am satisfied he did not contribute to the directly to the lateness of his application and that the delay was caused by an error on the part of UDE. Consequently, I consider this consideration to weigh in Mr Seddon’s favour.

Conclusion

1. In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

1. On balance of all the considerations, I am persuaded that the error for the delay is solely attributable to the two representative organisations engaged by Mr Seddon. While I do not find any other consideration to weigh in favour excepting for fairness, and the balance of considerations being neutral, the reason for delay does favour an extension of time.

1. Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am 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 extension of time is granted. 

1. Prior to the extension of time hearing, effort was made to conciliate the application without a successful outcome. For this reason it is not necessary to refer the matter to a further conference and instead a certificate will be issued pursuant to s.368(3)(a) as I am satisfied that all reasonable attempts to resolve the dispute have been unsuccessful.

COMMISSIONER

Appearances:

Ms E. Limboro for the Applicant
Ms T. Stevanovic for the Respondent

Hearing details:

30 May 2023
Melbourne (By Video using Microsoft Teams)

[1] [2011] FWAFB 975.

[2] Ibid at [13].

[3] [2013] FWC 1537.

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