Jason Shields v MSS Strategic Medical and Rescue Pty Ltd T/A MSS Strategic Medical and Rescue Pty Ltd

[2018] FWC 1689

[2018] FWC 1689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jason Shields
v
MSS Strategic Medical and Rescue Pty Ltd T/A MSS Strategic Medical and Rescue Pty Ltd
(C2018/959)

COMMISSIONER PLATT ADELAIDE, 22 MARCH 2018

Application to deal with contraventions involving dismissal – extension of time – application dismissed.

Summary

[1] Mr Jason Shields has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by MSS Strategic Medical and Rescue Pty Ltd T/A MSS Strategic Medical and Rescue Pty Ltd (MSS) on 13 July 2016 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 23 February 2018.

[3] Mr Shields application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“1. Fair Work Ombudsman REF (reference deleted) Inbound Phone 19-07-2016 07:29am Advice Provided by Ombudsman: I had 2 years to make a claim

2. Based on current circumstances i.e. seeking new employment, and mobilization of new contract, I was time poor - my priority on new employment and new workload

3. I was also in the process of relocating to new home with wife and three (3) children.”

[4] MSS filed a form F8A Employer Response on 6 March 2018 which indicated that the dismissal occurred on 13 July 2016 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 7 March 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 20 March 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Shields and MSS were directed to provide an outline of argument by 15 March 2018.

Submissions

[6] Mr Shields provided a written submission which is summarised as follows:

•  He was notified of the dismissal on 15 June 2016, with the dismissal taking effect on 13 July 2016.

•  On 28 June 2016, he emailed the Payroll Officer and National Manager in relation to his ‘redundancy claim’.

•  On 13 July 2016, he emailed the General Manager People and Culture to advise that he had tried to correspond with several people in MSS about his redundancy payout to no avail.

•  On 13 and 14 July 2016, he received an email with a letter attached explaining that his redundancy payout had been denied.

•  He made contact with the Fair Work Ombudsman on 19 July 2016 at 7:29am who provided advice that he had two years to make a claim.

•  On 18 July 2016, he emailed the Executive General Manager to express his sincere disappointment.

•  The lateness of the application has not caused MSS disadvantage or unfairness as this is not a situation where individuals will need to recall conversations/events from some time ago – the dispute is about things that are in writing and can be readily interpreted.

[7] Mr Shields also provided the following documents:

•  His contract of employment dated 16 August 2013

•  A screenshot of iMessages with ‘Nick’ [Samios] on 8, 23 and 28 June 2016

•  A letter from MSS to Colleagues dated 14 June 2016 advising that MSS had been unsuccessful in a contract tender

•  A letter from MSS to Mr Shields dated 15 June 2016 titled ‘Termination of employment due to loss of contract’

•  An email chain from 27 June 2016 to 15 July 2016 between Mr Shields and various MSS employees in relation to redundancy payouts

•  An email chain from 13 to 14 July 2016 between Mr Shields and various MSS employees with a letter attached denying the redundancy payout request of Mr Shields

•  An email chain from 15 to 16 July 2016 between Mr Shields and various MSS employees in relation to the rejection of the redundancy payout

•  A document titled Fair Work Ombudsman My Enquiries with the enquiry Inbound Phone 19 July 2016 7:29am highlighted

[8] MSS provided a written submission which is summarised as follows:

•  Mr Shields was notified of the dismissal on 15 June 2016, with the dismissal taking effect on 13 July 2016.

•  Mr Shields did not dispute the dismissal as his employment conditions remained unchanged in the sense that he continued in the same position on the same site with the successful contractor. There was no break in Mr Shields’ employment conditions, his contract concluded with MSS at midnight and at 11.55pm Mr Shields changed his uniform to that of the new contractor and continued for the remainder of his shift.

•  The assertion by Mr Shields that he was seeking new employment is untrue as his employment continued in the same location with the same conditions but with a new employer.

•  Being time poor and moving house are not exceptional circumstances within the meaning of Nulty v Blue Star Group Pty Ltd¹ and neither is mere ignorance of the timeframe.

[9] A hearing was conducted by way of telephone conference on 20 March 2018. A sound file record of the telephone conference was kept. Mr Shields represented himself and Ms Jennifer Anderson represented MSS.

[10] Mr Shields’ position is summarised as follows:

•  His dismissal took effect on 13 July 2016.

•  In his view he should have received a redundancy payment but MSS contended he was not entitled to the same due to the ‘ordinary and customary turnover of labour’.

•  During late June and July of 2016 he challenged MSS on their failure to make a redundancy payment.

•  On 19 July 2016, he contacted the Fair Work Ombudsman about MSS’s failure to make a redundancy payment and believes he was told he had two years to make a claim. As a result of this information, and the fact that he had a new job (with MSS’s successor) and relocated his family (matters which he advised at the conference that he now does not seek to reply upon) he was unable to make a claim until 23 February 2018.

•  It took about 2-3 hours for him to prepare the claim before lodgement.

[11] At the telephone conference, MSS relied on the submissions filed and contended that there were no exceptional circumstances on the basis that:

•  Mr Shields took no action to contest the dismissal for 20 months.

•  The facts relied upon do not constitute ‘exceptional circumstances’.

Applicable Law

[12] Section 366 of the Act relevantly states:

“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.”

[13] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd² which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

Consideration

[14] This general protections application by Mr Shields was made 590 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[15] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[16] The period of the delay does not include the period from the date of the dismissal to the end of the 21 day period. 3

[17] In late June/July 2016 Mr Shields pressed his claim that he was not paid his correct entitlements. This of itself does not constitute exceptional circumstances.

[18] Mr Shields contacted the Fair Work Ombudsman. It appears that his conversation with the Fair Work Ombudsman was not about the making of a general protections claim but the denial of his redundancy benefits. Mr Shields states he received advice from the Fair Work Ombudsman, that he had two years to lodge his claim. Mr Shields did not provide any corroboration to support the content of the advice allegedly provided.

[19] After his contact with the Fair Work Ombudsman, Mr Shields did nothing to pursue his claim for 19 months. At the hearing Mr Shields said that he no longer sought to rely on undertaking a new job or relocating his house and family to explain the delay. In any event, such an explanation would not be exceptional.

[20] Ignorance of the timeframe does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time. 4 I am not satisfied that Ms Shields was misled by the Fair Work Ombudsman about the lodgement of a general protections claim.

[21] That Mr Shields has failed to provide a credible explanation forpart of the delay tends to weigh against a finding of exceptional circumstances. 5

Any action taken by the person to dispute the dismissal

[22] It appears to me that the action taken by Mr Shields was directed at the failure of MSS to pay him a redundancy payment rather than the circumstances of the dismissal. The only action taken to contest the circumstances of the dismissal was the lodgement of this application.

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

[23] The delay in this matter is considerable, and whilst I accept it represents prejudice to MSS it is not determinative in this matter.

The merits of the application

[24] MSS contend that the employment ceased as a result of its loss of a contract at Loy Yang. This was not contested by Mr Shields, indeed he secured employment with the successful contractor.

[25] Mr Shields submits that MSS, in seeking to rely on the ordinary and customary turnover of labour argument to not pay a redundancy payment, had made a false or misleading representation.

[26] It is not apparent to me how MSS’s position would amount to a breach of s.340 of the Act.

[27] Mr Shields submitted that a text message exchange he had with Mr Nick Samios (Executive General Manager) supported his claim that he had undue influence or pressure exerted on him to reduce his NES entitlements. The text message exchange occurred after Mr Shields was advised that his employment would cease but before his dismissal took effect. Mr Shields appears to have informed Mr Samios that he had been in contact with “Fair Work”, Ms Samios replies “You’ve been on to fair work. Really.”

[28] On a preliminary review, it is not apparent to me how such an exchange would amount to undue influence or pressure, or how the entire circumstances would represent a breach of s.340 of the Act.

[29] On the basis of the information before me, it appears that the claim has little merit and accordingly I have regarded the merits as a factor which weighs against the extension of time issue.

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

[30] It appears to me that Mr Shields could prosecute his claim for redundancy entitlements as an underpayment of wages claim. In my view, the continued access to a remedy for the central tenet of his application weighs against the extension of time.

Conclusion

[31] Taking into consideration the factors discussed above, I am not satisfied that Mr Shields’ circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order⁶ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr J Shields the Applicant.

Ms J Anderson on behalf of the Respondent.

Hearing (Conference) details:

2018.

Adelaide:

March 20.

<PR601391>

1 [2011] FWAFB 975

2 [2011] FWAFB 975

 3   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 587

 4   Rose v BMD Constructions Pty Ltd[2011] FWA 673

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901

6 PR601392

Printed by authority of the Commonwealth Government Printer