Jarrod McDonald v Wiradjuri Condobolin Corporation Pty Ltd

[2016] FWC 3449

[2016] FWC 3449

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Jarrod McDonald
v
Wiradjuri Condobolin Corporation Pty Ltd
(C2016/3597)

COMMISSIONER WILSON DARWIN, 9 MAY 2016

Application to deal with contraventions involving dismissal; whether extension of time should be granted.

Background

[1] Jarrod McDonald lodged an application with the Fair Work Commission to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Mr McDonald’s application relates to the termination of his employment on or around 12 January 2016, and was received by the Commission on 28 April 2016 (the April General Protections Application).

[2] With the consent of the parties, an Order was issued by me on 27 May 2016 amending the name of the Respondent to Wiradjuri Condobolin Corporation Pty Ltd (WCC). The application had originally identified an entity named as RegenR8 as the Respondent. While connected with WCC, the parties accept that RegenR8 does not employ anyone and that Mr McDonald was never employed by that entity, but was instead employed by WCC. WCC is based in Wagga Wagga.

[3] Having been dismissed on 12 January 2016, for Mr McDonald’s application to have been made within the time allowed by s.366(2) of the Act, it would have had to have been lodged no later than 2 February 2016. Since the April General Protections Application was lodged on 28 April 2016, it is 86 days out of time.

[4] Mr McDonald was first employed by WCC on 4 November 2015 as a Junior Field Technician to work on a community language program being undertaken by WCC. Mr McDonald’s role with WCC was to assist in the recording and documenting of indigenous people and their languages. His employment required him to work closely with another, more senior, employee, who was also a personal friend, (referred to by me in this decision as the Person Named) however the submissions of the Respondent indicate that his supervision line was to another person (the Supervisor).

[5] The Applicant alleges serious personal misconduct against him by the Person Named in December 2015 on work premises outside business hours and submits that the nature of the misconduct was such that he made a complaint to the police at some stage after the start of 2016. He is imprecise about when the report was made to the police. The Respondent, and through them the Person Named, vehemently deny that the alleged misconduct took place, or that either the Person Named or Mr McDonald were on work premises at the time.

[6] It is however common ground that in early January 2016 Mr McDonald began to be absent from the workplace. Despite that common ground, Mr McDonald argues that his absence was connected with the incident of alleged misconduct, while WCC argue that the reasons for his absence were connected with his own out-of-work behaviour.

[7] Both parties agree that following the absences in early January 2016, there had been communication by text message about Mr McDonald’s absence and what might be happening to him. Both refer to the communication being both from the Person Named as well as his Supervisor. Initially the tenor of the communication appears to have been about where Mr McDonald was and what might be going on. However by 6 January 2016 its tone had changed markedly with the Person Named sending a text “which said, inter alia: "Jarrod, I need a reply from you by this afternoon or or (sic) my next message will be officially dismissing you from the project".” 1

[8] The Respondent’s material indicates that Mr McDonald replied he was not in Wagga and that he was upset with the Person Named, but would not say why. 2

[9] Mr McDonald was eventually dismissed by text message sent by the Person Named on 12 January 2016. 3 The reason now put forward for Mr McDonald’s dismissal is for his failure to attend work or to communicate with the WCC as to his absence. By the time Mr McDonald had been dismissed he had been due to work, but had failed to attend, on Monday, 4 January 2016 and the days between 5 – 12 January 2016. WCC put forward and I accept as a reasonable explanation, that text messaging by them with Mr McDonald was the only method of communication available to the WCC at that time.

[10] Also common ground between the parties is that following his dismissal, Mr McDonald met with the Person Named in a coffee shop. The Applicant puts forward that the purpose of this was to “negotiate internally with the intention of reinstatement” 4. While not resisting that a discussion of this nature took place, the Respondent notes that this was essentially only a single discussion on a date shortly after 12 January 2016. The Respondent’s submissions also put forward that it was in the course of this conversation between Mr McDonald and the Person Named that the allegations of misconduct were first raised by Mr McDonald; however it distinguishes between the allegations made in the coffee shop meeting, which were serious enough, and more extensive and more serious allegations included within the April General Protections Application eventually filed by Mr McDonald with the Fair Work Commission on 28 April 2016.

[11] Despite the matter being discussed, there was no agreement reached in the coffee shop meeting for Mr McDonald’s reinstatement.

[12] From that point the Applicant approached the Fair Work Ombudsman office in Wagga Wagga for assistance about his situation.

[13] Mr McDonald says that he had several discussions with staff in that office who gave him certain advice as to what could be done. Amongst other things they advised him to make an application to the Fair Work Commission alleging general protections contraventions of the Act.

[14] Mr McDonald’s evidence is that based upon their advice he completed an application form which he posted to a Fair Work Commission address in Wollongong. Mr McDonald’s evidence about when he did so is imprecise, however it appears to have been at some point between 3 February 2016, which is to a date referred to within his April General Protections Application, and a few weeks later, perhaps as late as 15 February 2016, which is a date referred to in submissions to the Commission on 30 May 2016. Mr McDonald conceded in evidence that he knew there was a deadline associated with the making of an application.

[15] On 18 April 2016 an FWC staff member had a telephone call from Mr McDonald in which he said he had lodged a general protections application by post in late February, with him saying to her that he had mailed the document to the Fair Work Commission in Wollongong (referred to as the February General Protections Application). The staff member identified to Mr McDonald that the Commission had no record of having received an application from him. Another FWC staff member records in a file note that she discussed the matter with a staff member in the Wollongong registry of the Industrial Relations Commission of New South Wales, which acts on behalf of the FWC in some applications such as this. That latter staff member “advised they had problems receiving applications previously if they were addressed to the street address as Australia Post does not deliver to multi storey buildings”.

[16] Apparently acting upon the information provided to him by the FWC staff members, Mr McDonald then completed and mailed the April General Protections Application to the Fair Work Commission. That application was received at the Wollongong office referred to above on 28 April 2016. The document is signed and dated 22 April 2016.

Legislative scheme

[17] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act;

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.

[18] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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”.  5

Consideration

[19] I turn to consider each of the criteria set out in s.366(2) of the Act.

The reason for the delay

[20] It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters, as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 6 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.7 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.8

[21] There are potentially three reasons for the delay in Mr McDonald filing a general protections application.

[22] The first is that, having been dismissed, he chose to discuss with the Person Named the capacity for him to be re-employed. That process took some time, however it appears to have been concluded soon after the date on which he was dismissed, 12 January 2016. Even allowing for the possibility of both people needing some time to consider the matters that had been discussed, there is nothing within that reason which would indicate the period took longer than the 21 day time period allowed for the making of a general protections application.

[23] The second reason is that having realised that he had lost his job and connecting it with the misconduct allegations he puts forward, Mr McDonald sought advice, and reasonably so, from the Fair Work Ombudsman. That process involved not only ascertaining his rights, but also determining how he would advance them.

[24] On one analysis, being that set out within the April General Protections Application, the process of gathering advice had been completed by 3 February 2016, which is a period that is one day outside the 21 day time period for making a general protections application, which otherwise finished on 2 February 2016. The alternative date, put forward in Mr McDonald’s correspondence to the Commission dated 30 May 2016, is that he mailed the February General Protections Application to the Commission on or around 15 February 2016. On that analysis, the application would have been 13 days out of time.

[25] The third potential reason is the mailing difficulty which Mr McDonald puts forward, and which only became known to him on 18 April 2016.

[26] The question in this matter is whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application. Given that termination of employment occurred on 12 January 2016, that period expired on 2 February 2016.

[27] The allegations made in respect of the Person Named by Mr McDonald are very serious and potentially of a criminal nature. They relate to conduct alleged to have taken place on Thursday, 17 December 2015. It is plausible that such misconduct would reasonably lead to an employee then having difficulty, to the point of impossibility, in working with the person who had committed the misconduct. Such potentially explains a person such as Mr McDonald absenting themselves from the workplace in early January 2016 and then being unable or unwilling to explain why they might be absent or to have difficulties in attending for work.

[28] Against this construct however is what occurred following the dismissal.

[29] Shortly after being dismissed Mr McDonald met with the Person Named in order to negotiate for his reinstatement even though his dismissal had come about from absences arising from the Person Named’s conduct which in turn had led him “to feel progressively more afraid and endangered, losing sleep, motivation and friends in isolated fear it would happen again”. 9 Although he put his complaints about misconduct to the Person Named, he took no steps to advise WCC formally of those complaints, whether through his direct Supervisor, its Chief Executive Officer or its human resource staff. The complaints themselves were unknown to WCC, at least in a corporate sense, until service of the April General Protections Application.

[30] The misconduct allegations made by Mr McDonald are clearly in an exceptional category. An employee faced with such conduct against them would reasonably have difficulty with what had occurred and how it affected their employment. There is not a clear answer before me as to why, within that context, it was considered a good idea to negotiate for reemployment. However that was what Mr McDonald did. I make no criticism of him for that; he plainly thought at that time that, despite everything, the employment relationship remained viable and he wished to explore the extent to which it could be re-established. Perhaps the fact that the Person Named had been a friend was an influencing factor.

[31] In forming my view about the first reason for delay, I take into account the nature of Mr McDonald’s employment and the seriousness of the allegations he made. Ordinarily those matters would weigh heavily in the Applicant’s favour.

[32] However, those factors largely pertain to the first reason for the delay put forward by Mr McDonald; with him wanting to test his capacity to be reinstated. On any account that possibility had ended before, or no longer than, the expiry date of the prescribed 21 day period for lodging an application. Accordingly, the first reason advanced by Mr McDonald is not, on its own, an exceptional factor that would leave me satisfied the time period for making an application should be extended.

[33] I turn to consider the other matters relevant to the question of whether there is an acceptable reason for the delay in making a general protections application.

[34] The second reason for the delay in making an application relates to Mr McDonald’s consultations with the Fair Work Ombudsman; however, he is imprecise as to when those consultations concluded. Upon any analysis they were completed after the expiry of the 21 day time limit for the making of a general protections application. He concedes that he knew that there was a 21 day time limit for the making of an application such as this.

[35] The seeking of advice from the Fair Work Ombudsman or indeed from any other advisor is not in itself exceptional and must be regarded as an ordinary factor. Many dismissed people seek advice about their situation and thousands find their way each year to make an application to the FWC seeking recourse within the prescribed time limits.

[36] Mr McDonald’s third reason for the delay in making an application is that his February General Protections Application was lost in the mail. His evidence is that having established that the application may not have been received by the Commission, he made a phone call to a Commission staff member. That is consistent with a note on the Commission’s file, which records he was advised on Monday, 18 April 2016 that the Commission had no record of having received an application from him. The application he eventually made was then not received in the Fair Work Commission until 10 days later on Thursday, 28 April 2016. The document itself is signed and dated Friday, 22 April 2016, a full four days after having learned that the original application had not been received.

[37] Were there to be evidence before me about the definite nature of a February General Protections Application having been made by Mr McDonald, I may be persuaded that it was an exceptional factor weighing in his favour, whether or not combined with the other circumstances of the matter.

[38] However in this case a copy of the February General Protections Application has not been provided to me; neither have I been provided with any evidence or statement from a third-party advisor, such as a Fair Work Inspector, saying that they assisted Mr McDonald to complete the first application on a particular date. I also do not have any evidence that would definitively show there had been a first application mailed to the Commission.

[39] Mr McDonald gave his evidence clearly, cogently and persuasively. He is obviously intelligent and a good communicator who is not fazed by processes such as this. He plainly knows how to research solutions to problems and act upon that research.

[40] Because of those features, I find it unlikely that a person such as he would not have kept a copy of the application so that they could refer to it at a later time, such as in a conference or hearing. There was no evidence from Mr McDonald to the effect that he had a copy of the first application, which might corroborate his claims.

[41] Further, it is somewhat un-reconcilable with ordinary behaviour that having learned in late April that an application posted at least two months earlier had never been received by the tribunal, it then took a further four days just for a fresh application to be completed and mailed to the Commission. One would expect in such circumstance that having learned that the original application had not been received that all efforts would have been made by an applicant to ensure a fresh application was with the tribunal on the same or next working day. That did not occur, and there was no endeavour by Mr McDonald to email or electronically lodge a fresh application. Instead a fresh application was completed and mailed at the end of the week and that document was not received by the tribunal until the following week. I therefore find it unlikely that there was such a first application.

[42] Drawing these matters together, I am un-persuaded that Mr McDonald has established there is an acceptable reason for his late application, whether because of one of the reasons he advanced, or a combination of them. Consideration of this criterion therefore resolves against an extension of time be granted to him.

Any action taken by the person to dispute the dismissal

[43] On Mr McDonald’s evidence, he disputed the dismissal by endeavouring to reach agreement with the Person Named that he be re-employed. However, if he was unaccepting of the result of those discussions, there is no evidence that once that process had concluded that Mr McDonald took any conclusive steps to dispute his dismissal. He neither approached his direct Supervisor or WCC’s Chief Executive Officer on the subject. While he appears to have approached the Fair Work Ombudsman about his rights, that process did not seem to have been attended with urgency on his part and in any event did not result in any direct actions other than the making of this application.

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

[44] The delay in the filing of the application is 86 days.

[45] The Respondent submits I take into account that were the matter to proceed, it potentially may be prejudiced for reason that it has taken steps to replace Mr McDonald in its organisation, with that process commencing prior to the making of his application.

[46] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. In this case further proceedings would require extensive preparation by both parties, and much of the evidential contest would likely surround interactions known only to Mr McDonald and the Person Named.

[47] It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 10

[48] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

The merits of the application

[49] Were the matter to proceed, it would likely have at least an acceptable level of merit, subject of course to Mr McDonald’s evidence being accepted as truthful.

[50] Against that proposition, there may well be difficulties for Mr McDonald’s case to be successful; not least for reason that the key question for determination by a Court or the Commission would be why the adverse action of dismissal was taken. Given the particular facts of this matter, it is not impossible that findings of misconduct by the Person Named could be made, while at the same time findings were also made that Mr McDonald’s dismissal was not because he had exercised a workplace right or was otherwise entitled to a protection afforded by the Act’s Chapter 3, Part 3-1.

[51] In this regard I note that the Respondent argues that Mr McDonald has not identified what workplace right is relied upon by him in making the general protections application and that he has also not demonstrated that such a workplace right was the reason for his termination.

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

[52] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past. 11 On balance, I consider this to be a neutral consideration in Mr McDonald’s case.

[53] For these reasons, and principally because I am unpersuaded that Mr McDonald has established an acceptable reason for the delay, I decline to grant an extension of time pursuant to s.366 of the Fair Work Act and will issue an order dismissing Mr McDonald’s application as being out of time.

COMMISSIONER

Appearances:

Mr J McDonald on his own behalf.

Ms M Archer (solicitor - Archer Law) for the Respondent.

Hearing details:

2016.

Melbourne (by telephone):

27 May.

Final written submissions:

Applicant and Respondent: 30 May 2016.

 1 Form F8A Response to General Protections application, Attachment [23].

 2 Ibid [24].

 3 Ibid [28].

 4   Form F8 General Protections application, item 1.4.

 5   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

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

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

 8   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 9   Form F8, item 3.1.

 10   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

 11   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

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