Jarryd Stakelbeck-Keily v Two Little Pigs Deli and Grind T/A Two Little Pigs Charcuterie & Grind

[2016] FWC 1960

[2016] FWC 1960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jarryd Stakelbeck-Keily
v
Two Little Pigs Deli and Grind T/A Two Little Pigs Charcuterie & Grind
(C2015/6189)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 30 MARCH 2016

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Jarryd Stakelbeck-Keily (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 23 September 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Two Little Pigs Deli and Grind (the Respondent) on 25 August 2015 in contravention of the general protections provisions of the Act.

[2] As the application had been lodged eight days outside the statutory timeframe for lodgement, the Commission issued Directions on 14 October 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[3] The extension of time issue was the subject of a telephone hearing on 26 November 2015. At the telephone hearing, Mr Stakelbeck-Keily appeared on his own behalf, while Mr Socrates Farrugia and Mr Socratis Iannou, the Respondent’s Directors, both appeared for the Respondent.

[4] 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.

Background

[5] Mr Stakelbeck-Keily commenced employment with the Respondent as second chef on 3 May 2015.

[6] On 25 August 2015, Mr Stakelbeck-Keily informed Mr Farrugia by text message that he was unable to attend work due to a medical condition. In his application, Mr Stakelbeck-Keily states that Mr Farrugia subsequently sent him messages which read “don’t worry Jarryd, I’m covering all your shifts from now on”, “I suggest you start looking (for new work)” and “you need to drop off your key and t-shirts.” 1

[7] Mr Stakelbeck-Keily submitted that on 14 September 2015 he unsuccessfully attempted to lodge his application using the Commission’s electronic filing system. The Commission’s records e-filing records show two log in events on 14 September 2015 but no submission events on that day.

[8] Shortly before midnight on 14 September 2015 Mr Stakelbeck-Keily erroneously faxed his application to the Fair Work Ombudsman (FWO). The FWO subsequently emailed (date not shown) Mr Stakelbeck-Keily in the following terms:

“Hi Jarryd, You have faxed your general protections application to the Fair Work Ombudsman. We do not process applications for general protections. Please submit your application to the Fair Work Commission. You can view the Fair Work Commissions contact details here <

[9] As previously noted, Mr Stakelbeck-Keily’s general protections application was received by the Commission on 23 September 2015, which is eight days outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. In his application, Mr Stakelbeck-Keily contended that his dismissal contravened of s.352 of the Act which deals with temporary absence due to illness or injury,

The Relevant Legislation

[10] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Whether to allow a further period for the application to be made

[11] 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

[12] Mr Stakelbeck-Keily submitted that the reason for the delay was that he erroneously faxed his application to the FWO instead of the Commission on 14 September 2015, highlighting that this occurred within the 21 day statutory timeframe for lodgement. Mr Stakelbeck-Keily further submitted that the FWO subsequently advised him that he should submit his application to the Commission. Mr Stakelbeck-Keily contended that he submitted his application to the Commission as soon as he received the abovementioned email from the FWO.

[13] Mr Stakelbeck-Keily also submitted that his hospitalisation for three days on 25 August 2015, for two days on 11 September 2015 and the subsequent ten day recovery periods on each occasion also contributed to the delay in lodging his application.

[14] The Respondent submitted that an extension of time should not be granted. Further, the Respondent contended that the Applicant’s mother, Ms Sabine Stakelbeck, researched and submitted Mr Stakelbeck-Keily’s application, adding that this weighs against his reliance on his hospitalisation as the reason for the delay.

[15] With regard to Mr Stakelbeck-Keily’s hospitalisations, Mr Stakelbeck-Keily provided no evidence to substantiate his admissions and the ensuing ten day recovery periods. Further, given that his application was erroneously faxed to the FWO within the 21 day timeframe, it is not clear how his initial hospitalisation could be relied upon as a reason for the delay in lodging his application.

[16] Beyond this, it is not clear from Mr Stakelbeck-Keily’s submission precisely when the FWO sent the abovementioned email to him. As noted above, Mr Stakelbeck-Keily contended that he lodged his application as soon as he was advised by the FWO that he should submit his application to the Commission. However, the file indicates that Mr Stakelbeck-Keily’s mother contacted the Commission on 23 September 2015 seeking confirmation of the lodgement of his application via email and fax on 21 September 2015. Among other things, the file indicates that Ms Stakelbeck advised “that she needed to resend the applications on Monday after receiving advice that the original lodgement made on 14 September via e-filing was not received.” Ms Stakelbeck’s email of 21 September 2015 does not appear to have any documents attached to it. More importantly, the email points to Mr Stakelbeck-Keily having received the abovementioned response from the FWO prior to 21 September 2015, raising doubts that he lodged his application with the Commission as soon as he was advised by the FWO that he should do so.

[17] Relevant in this regard is the decision by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 3 which determined that an employee needs to provide a credible reason for the whole of the period that the application was delayed. Based on the material before the Commission, I am not satisfied that Mr Stakelbeck-Keily has provided a credible reason for the whole period of the delay.

[18] Taken together, the above factors do not point to the existence of exceptional circumstances.

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

[19] At the telephone hearing Mr Stakelbeck-Keily acknowledged that he took no action to dispute his dismissal other than lodging his application.

[20] The Respondent made no submissions regarding this factor.

[21] The absence of any action to dispute the dismissal does not point to the existence of exceptional circumstances.

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

[22] Mr Stakelbeck-Keily made no submissions regarding this factor.

[23] The Respondent conceded at the telephone hearing that it would not be prejudiced were an extension of time granted.

[24] I note that the mere absence of prejudice to the employer is not a sufficient basis to grant an extension of time 4. Against that background, I consider this factor to be a neutral consideration.

(d) The merits of the application

[25] Mr Stakelbeck-Keily stated in his application that he was dismissed for being unable to work when admitted to hospital. At the telephone hearing, Mr Stakelbeck-Keily disputed the Respondent’s contentions regarding his performance, submitting that while there were a couple of occasions when he was advised of things he needed to work on or improve there had never been any mention of him losing his job or his performance not being good enough. Finally, Mr Stakelbeck-Keily contended that his dismissal was unfair.

[26] The Respondent submitted that Mr Stakelbeck-Keily’s dismissal was strictly a result of his performance and was not due to his illness. In support of that contention, the Respondent outlined four occasions over the period 25 May to 8 August 2015 when it discussed issues regarding Mr Stakelbeck-Keily’s performance with him, adding that it had decided on 10 August 2015 to dismiss Mr Stakelbeck-Keily but was unable to do so as a result of his absences. The Respondent submitted that Mr Stakelbeck-Keily was dismissed when he advised it of his unavailability for work on 25 August 2015, adding that while the way his dismissal was communicated was regretted it was not done in malice because of his sickness but was just a build up of frustration. The Respondent also contended that on the day of the dismissal its head chef, Mr Carr-Feher sent Mr Stakelbeck-Keily a text message which stated:

“… Terrence [Mr Farrugia] obviously was short with you but to elaborate on the situation we all feel as though the time has come to look for another chef! After our last discussion with you, me and terrence about your overall performance, we feel as though not much improvement had been made but in fact you have been getting progressively worse! You being sick is an unfortunately timed event but had no effect on the decision that we have come to! … I feel as though i did give you as many chances and as much guidence as i could, even going as far as typing out pack down and set up procedures which in all honesty was a joke and yet even these simple tasks you were failing at! …” 5

[27] From the above, it is clear that some key facts in this case are disputed. Against that background and in the absence of a substantive hearing of the evidence, I am unable to form a considered view as to the merits of the application. However, I would observe that if the Respondent were able to substantiate its performance concerns the merits of Mr Stakelbeck-Keily’s application are unlikely to be strong. Nevertheless, I consider this factor to be a neutral consideration.

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

[28] Mr Stakelbeck-Keily submitted that there were previous cases where an applicant had misdirected their application to the FWO and had been granted an extension of time.

[29] The Respondent did not directly address this factor.

[30] While I note Mr Stakelbeck-Keily’s submission, given my findings regarding the above factors, I consider the factor to be a neutral consideration.

Conclusion

[31] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 6(Nulty) in the following way:

“[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.”

[32] Having considered all of the factors set out in s.366(2) and drawing on Nulty, 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).

[33] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

Appearances:

J. Stakelbeck-Keily on his own behalf.

S. Farrugia and S.Iannou for the Respondent.

Hearing details:

2015.

Canberra and Melbourne (telephone hearing):

November 26.

 1 F8 – General Protections Application

 2   Applicant’s Submissions

 3 (2010) 197 IR 403 at 408-409

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 5   Form F8A – Response to general protections application at Item 2.2

 6   [2011] FWAFB 975

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