Jeremy Halls v KR and KM McCardle and Sons Pty Ltd Glen Cameron Nominees Pty Ltd Woolworths Limited

[2014] FWC 5666

[2014] FWC 5666 [Note: An appeal pursuant to s.604 (C2014/6623) was lodged against this decision - refer to Full Bench decision dated 15 December 2014 [[2014] FWCFB 9020] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Jeremy Halls
v
KR and KM McCardle and Sons Pty Ltd
Glen Cameron Nominees Pty Ltd
Woolworths Limited
(C2014/450)

COMMISSIONER HAMPTON ADELAIDE, 23 SEPTEMBER 2014

Application to deal with contraventions involving dismissal - application lodged outside of the time period - whether exceptional circumstances warranting an extension of time - application made directly to the Court without FWC certificate - Court application dismissed - further delay in making this application - whether explanation for the overall delay in filing was reasonable - vehicle accident and multiple litigation - relevant but only partial explanation - applicant’s dismissal likely to be unfair but little grounds for general protections claim - not satisfied exceptional circumstances exist - extension of time not granted - application dismissed.

1. Background

[1] Mr Jeremy Halls has made an application under s.365 of the Fair Work Act 2009 (the FW Act) on the basis that his dismissal, which apparently took effect from 19 October 2013, was contrary to the General Protections 1 provisions of that Act. Mr Halls was a truck driver employed by KR and KM McCardle and Sons Pty Ltd (McCardle) prior to his dismissal.

[2] In addition to McCardle, the application cites two further respondent parties, being:

● Glen Cameron Nominees Pty Ltd (Cameron Nominees) - which manages a distribution centre where the events leading to the dismissal took place; and
● Woolworths Limited (Woolworths) - the owner of the relevant distribution centre.

[3] Although there was some initial uncertainty about the status of Cameron Nominees and Woolworths, it is evident that Mr Halls has named them as respondent parties and I have treated them as such for present purposes. I did however give them leave to make application regarding their status depending upon the outcome of these present proceedings.

[4] This application was filed by Mr Halls on 24 March 2014, being some five months after the cessation of his employment and well beyond the time limit of 21 days established by the Act 2 for the making of such applications. The FW Act does however permit the Fair Work Commission to establish a further period for the lodgement of an application in exceptional circumstances.3

[5] This decision deals with Mr Halls’ application to extend that time period for the lodgement of the s.365 application.

[6] Mr Halls had earlier made an application to the Federal Circuit Court of Australia in relation to his dismissal and this was rejected by the Court on jurisdictional grounds on 25 February 2014. Mr Halls relies upon the court application and certain personal and business circumstances applying after that event as part of his explanation for the delay in lodging this application.

[7] Each of the respondent parties has opposed the extension of time application.

2. The material before the Commission

[8] Directions were issued in this matter in early May 2014, 4 and given that Mr Halls was not being represented, these directions set out the relevant statutory considerations and the process to be adopted. The directions required the filing of submissions and evidence and an indication that if the parties did not seek to challenge the evidence of the other parties, the matter would be determined on the basis of materials as filed without the need for a hearing.

[9] As is sometimes common with highly motivated self-representing parties, the issues raised in some of the materials had a tendency to expand the matters in dispute. Further, some of the material to be relied upon was considered by Mr Halls to be confidential. That material involved personal and business information and went to Mr Halls’ medical condition and other circumstances in the period surrounding the making of this application.

[10] Given the apparent importance of that material and the potential prejudice of such for the respondents if not disclosed to them, a hearing was conducted to deal with all of the related issues. Ultimately, I determined that the hearing was to be conducted in private as contemplated by s.593(3) of the FW Act. Further, I determined that the confidential material, which was to be provided to the respondents to ensure natural justice, was subject to strict confidentiality undertakings by each of the respondents and orders by the Commission pursuant to s.594 of the Act.

[11] In these circumstances, I will not disclose the details of the personal information contained in the confidential material in this decision. However, I have considered those details and the views of all parties on that material in determining this matter.

[12] The parties did not seek to challenge each others’ evidence that went directly to the extension of time application. That material was provided in the form of statutory declarations or sworn affidavits by most of the parties. However, there was a significant dispute as to the import of the events and circumstances as they related to the present matter.

3. The sequence of events leading to the making of the application

[13] Based upon the material before the Commission, the following sequence of events emerges. In making findings, I have noted where some of the events are disputed, or at least, not conceded. However, these go to the substantive merit of the application and the material pertaining to those matters has not been tested in the context of this extension of time application.

[14] Mr Halls was employed as a truck driver by McCardle in early October 2013. His work included driving trucks between various Woolworths (or related businesses) sites including a distribution centre that was managed by Cameron Nominees.

[15] Mr Halls contends that on 18 October 2013 he reported a safety concern about a trailer and was informed by an officer of Cameron Nominees that he was not to do so again without contacting that officer first. I assume for present purposes that the safety report was originally made to Woolworths.

[16] On 19 October 2013, Mr Halls was apparently suspended (from the site) by Cameron Nominees for allegedly coupling a trailer when a red light was shown in the relevant docking station. The red-light is associated with a safety protocol that is directed to the correct procedure for coupling trailers to the prime mover. Mr Halls has an explanation for these events and this is yet to be tested. Mr Halls advised his employer, McCardle, of the suspension and subsequently on that day, he was informed by McCardle that they would “let him go”.

[17] During a meeting on 21 October 2013, involving Mr Halls and representatives of McCardle and Cameron Nominees, the apparent termination was confirmed. Mr Halls later received a letter of termination that also included reference to him being in his “probationary period” at the time.

[18] On 30 October 2013, Mr Halls received an email from Cameron Nominees indicating that it had advised McCardle that the trailer incident had been investigated and whilst it had found Mr Halls to be in breach of the coupling policy, he was now permitted back on site.

[19] Mr Halls sought a review of his dismissal by McCardle, however the decision was not overturned.

[20] Mr Halls filed a Form 4 General Protections application with the Federal Circuit Court of Australia on 11 November 2013 (the Court application). The Court application cited each of the respondents in this matter and contended various breaches of the general protections of the Act and other legislation relating to his dismissal.

[21] The Court application was heard on 9 December 2013 and it is evident that one or more of the respondents raised a threshold point regarding the requirement under the FW Act 5 to obtain a certificate from the Commission prior to making a general protections court application in relation to a dismissal.

[22] The Court application was dismissed by Judge Lindsay in a decision provided on 25 February 2014, Halls v McCardle and Ors [2013] FCCA 316 (the Court decision). The Court upheld the respondent’s threshold point and in so doing found as follows:

“[43] The applicant submitted that the decision of the Full Bench of the Fair Work Commission in Lawrence v Coal & Allied Mining Services Pty Ltd [2010] FWAFB 10089, supported his bringing this application to the Court in these circumstances. I have read that decision. I do not see how that decision even addresses these circumstances, however.

[44] He also submitted that his application, being one brought under Rule 45.08 or 45.09 of the Rules of Court, did not require him to file a s.369 certificate.

[45] The first and second respondents submit that the applicant was prohibited from making the application he did because, having not sought an interim injunction, he did not have a certificate under s.369. He did not have a certificate because he never asked FWC, under s.365 of the Act, to deal with the dispute.

... ...

[50] I do not accept that this application was not brought under Rule 45.06, as the application contended. That sub Rule provides:

45.06 An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part3-1 of the Fair Work Act must:

(a) be in accordance with the approved form; and
(b) be accompanied by:
(i) a claim in accordance with the approved form; and
(ii) unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under section 369 of the Fair Work Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

[51] The point the applicant desired to make before me was that he is not alleging that he was "dismissed" in contravention of a general protection. He says that he is not obliged, then, to file a certificate, and that his claims fall under Rule 45.08 or 45.09.

[52] This application arises out of his dismissal. All of the remedies he seeks relates to his loss of employment. He wishes to be re-instated or compensated for his loss of employment. He was dismissed by the first respondent who responded to his being banned from a site by the second respondent; the second respondent is prepared to have him back on site; the first respondent will not have him back. They stood by their dismissal of him.

[53] He has brought an application under Division 2 of Part 4-1 for orders in relation to contravention of Part 3-1. It is a general protections court application. His application (s.355(c) and (d)) falls in to that category, so does his application for undue influence (s.344). His application under s.345 in relation to misrepresentation also falls in to that category; the same applies to his application under s.351 for discrimination.

[54] The applicant was dismissed. Whether he says he was not dismissed "in contravention" of a general protection described in Part 3-1 of the Act, as the Rule requiring him to provide a certificate provides, his being a person "who has been dismissed" means s.365 of the Act is applicable to his circumstances. That being the case, s.371(1) is also applicable.

[55] Whether the Rules of Court are drawn in concinnity with the relevant provisions of the Act, for these purposes, does not matter.

[56] He has made an application which the Act says he must not make.

...

[59] The applicant can bring his application under s.365 of the Act and seek an extension of time under s.366 if so advised.”

[23] This present s.365 application was filed with the Commission on 24 March 2014. I will deal with Mr Hall’s explanation for the further delay in filing the application as part of my consideration of this matter.

[24] The s.365 application describes the alleged contraventions of the general protections in the following terms:

“- Has not allowed me to make an enquiry or complaint about a workplace matter with Woolworths nor Camerons;
- Has taken adverse action when action was in breach of workplace rights;
- Colluded with sub-contract company, Camerons, to deny me employment so have reason to let me go;
- Changed work hours different from other employees.”

[25] These contraventions are said to involve the following provisions of the Act:

“Division 3—Workplace rights
s.340 Protection
s.343 Coercion
s.344 Undue influence or pressure
s.345 Misrepresentations

... ...

Division 5—Other protections
s.354 Coverage by a particular instrument
s.355 Coercion—allocation of duties etc to a particular person

Division 6—Sham arrangements
s.357 Misrepresenting employment as an independent contracting arrangement.” 6

[26] In the s.365 application, Mr Halls sought the following remedy:

“I am seeking an interim order against McCardle and Camerons to repay me for lost wages, damages for unsubstantiated claims against me and collusion to vary my work contract illegally by adverse action.

I seek compensation of $33,000 between two parties Camerons and McCardle and non-payment of wages of McCardle of the amount of $1,358.34.” 7

4. The capacity of the Commission to extend the time for lodgement

[27] The FW Act provides as follows:

“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.”

[28] The operation of this provision has been considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 8 (Nulty) in the following terms (footnotes omitted):

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[29] Accordingly, the Commission must assess whether there are exceptional circumstances having regard to the considerations provided by s.366(2) of the Act, and if so, whether the discretion to provide further time to permit this application to proceed, should be exercised.

5. The positions advanced by the parties

5.1 Mr Halls

[30] Mr Halls contends that he made an application to the Court in relation to his dismissal within the time period provided by s.366 of the FW Act. He further contends that the Court application was accepted by the Court but declined due to the requirement to have the matter subject to proceedings before the Commission in the first instance. That is, he attempted to lodge the correct application and asserts that he in fact met the time limit guided by the Court rules and process.

[31] Mr Halls further contends, in effect on an alternative basis, that the s.365 application was lodged only five days outside of the 21 day time limit. That is 26 days after the Court decision. In that context, he further contends that a combination of personal circumstances, medical conditions and appointments, and other litigation and business dealings provide an acceptable explanation for the delay. I will deal with the detail of those matters as part of the consideration of the issues.

[32] It is further contended by Mr Halls that he took various actions to dispute his dismissal commencing with written complaints, seeking and attending meetings and in due course filing the Court application.

[33] Mr Halls rejects any notion of prejudice arising for the respondents from the “five day extension required” and notes they have been on notice about the disputed termination since it occurred and have been represented throughout the process before the Court and the Commission.

[34] In terms of the merits of the application, Mr Halls contends that he was dismissed:

● Whilst an investigation was being conducted;
● That involved being subject to an immediate lifetime ban by Cameron Nominees which was not justified and contrary to Woolworths policies and a subsequent decision made by Cameron Nominees on the ban; and
● Was based upon alleged misconduct that is denied.

[35] This, he contends, involves a breach of the various general protections cited in the s.365 application.

[36] In relation to fairness with other persons, Mr Halls contends that in similar cases where other employees had lodged in the wrong jurisdiction, or were suffering from medical conditions, extensions of time have been granted and this should also apply in his case. 9

[37] In effect, Mr Halls contends that he experienced events which in the normal course of life, would not normally be experienced in a lifetime, let alone, in the period between 26 February 2014 and 23 March 2014. 10

[38] In that light, Mr Halls contends that the Commission should find exceptional circumstances and exercise its discretion to extend the time for filing to permit this application to proceed.

5.2 The Respondent parties

[39] Each of the respondent parties opposed the application to extend time. Although each highlighted different aspects, their positions generally involved the following elements.

[40] There was no reasonable explanation for the delay in filing the s.365 application. Mr Halls had incorrectly lodged the Court application and had not even filed this application promptly after the Court decision.

[41] The explanation provided for the further delay after the Court decision was both flimsy and contradictory. That is, the respondents contended that the medical information and related appointments provided by Mr Halls did not reveal that he was unable to prepare and file the required application. Further, the fact that he was able to, and did, conduct other litigation and business affairs in the period after the Court decision meant in effect that Mr Halls had merely prioritised other matters ahead of this application.

[42] The respondents also contend that the materials relied upon by Mr Halls were not sufficient and this meant that he was unable to explain why he had failed to attend to the task of making this application following the Court decision. This included the suggestion that as the applicant was not working throughout the relevant period, he had time to attend to the preparation and filing of the s.365 application.

[43] In terms of the other considerations of s.366(2) of the FW Act, the respondents generally acknowledged that Mr Halls had taken actions up until the Court decision to dispute the termination however they contended that there was no evidence of doing so after that decision and prior to lodging this application.

[44] The respondents did not generally claim prejudice beyond that which might arise had the application been taken within time, although McCardle submitted that what it considered to be the absence of any merit in the application, should be taken into account.

[45] With respect to the merits, McCardle and Cameron Nominees each contended that the various factual elements of the allegations were in dispute and, in effect, that the s.365 application lacked legal merit. Woolworths contended that there was little if any merit in the application that concerned their involvement.

[46] The concept of fairness between persons could not be relied upon by Mr Halls in the view of each of the respondents.

[47] The respondents sought the rejection of the extension of time application and the dismissal of the s.365 application.

6. Do exceptional circumstances exist that would warrant an extension of time being given?

[48] It is appropriate to consider each of the statutory considerations in turn although an assessment of the overall circumstances is required.

The reason for the delay

[49] The dismissal of the applicant took place on 19 October 2013. The dismissal apparently took effect immediately and was confirmed by McCardle, and a review denied, some days later.

[50] Section 366(2) of the FW Act required the application to be filed, in the absence of an extension, within 21 days of the dismissal taking effect. This meant, in effect, that it was to be lodged with the Commission by Monday 11 November 2013 allowing for the operation of the Acts Interpretation Act 1901. 11 The s.365 application was lodged some 155 days after the dismissal took effect; requiring an extension in this case of some 134 days.

[51] Although Mr Halls has, in part, argued the extension of time on the basis that he had in effect 21 days from the Court decision, this is not the correct approach. The Court application and decision are part of the explanation for the delay however it is the entire period of the delay and the explanation for such that must be considered.

[52] It is convenient to consider two different periods associated with the overall delay. Firstly, the period leading up until the Court decision on 25 February 2014. Mr Halls was apparently aware of the threshold point, being the need to bring an application to the Commission first, early on in the process before the Court. Indeed, he has indicated in his affidavit material 12 that he sought clarification from the Registry of the Court about whether he needed to have a certificate from the Commission. He indicates that he was informed that such was not required.

[53] There is no evidence beyond that assertion and it has not been contested by the respondents. On that basis, I will deal with this matter on the basis that this was Mr Hall’s understanding of the “advice” from the Registry of the Court. This is relevant to the assessment of the ultimate delay and in particular the lodgement of the Court application at that time. 13

[54] The fact that ultimately it was found that Mr Halls had filed in the wrong jurisdiction, or at least without the necessary precursor application and certificate, is a factor to be considered in assessing the delay. However, the threshold point was raised by the respondents and heard by the Court on 9 December 2013. The point was not determined summarily and in that light it was reasonable for Mr Halls to await the decision of the Court.

[55] On that basis, Mr Halls has a reasonable explanation for that part of the delay in filing which is directly attributable to the lodgement of the Court application and the period awaiting the Court decision.

[56] The second period of the overall delay to be considered is that which followed the Court decision on 25 February 2014. This period involved a further 27 days before the s.365 application was lodged with the Commission. Contrary to Mr Hall’s view, this does not mean that the application was filed only 5 or 6 days late, or that an explanation is only required for those few days.

[57] Mr Halls principally relies upon the combination of the following events and circumstances which can be grouped into three categories:

The consequences of a vehicle accident that occurred in late January 2014 including:

● the ongoing treatment, medical appointments and related activities;
● a third party CTP claim; and
● his medical condition during the period in question arising from the accident.

Other litigation and business dealings including:

● A claim taken on 25 February 2014 against Mr Halls in the Adelaide Magistrates Court associated with his business involving insurers for both his business and the plaintiff’s business;
● An audit conducted by the ATO commencing in November 2013, including consequential work and communications leading to a letter of objection lodged on 10 April 2014; and
● The filing of an affidavit dated 24 February 2014 in relation to a claim made by Mr Halls against McCardle concerning alleged unpaid wages or entitlements.

Factors associated with the filing of the s.365 application including:

● The size of the application;
● The costs;
● The need to update the affidavit material and annexures lodged with the Court application; and
● The process of including the three respondent parties.

[58] For reasons outlined earlier, I will not discuss the detail of Mr Halls’ medical condition or disclose the precise nature of his dealings with the ATO or other business affairs in this decision. I have considered that detail and the extensive material provided by Mr Halls in the various written submissions to the Commission.

[59] It is the combination of these events and circumstances that are relied upon by Mr Halls. For that reason, I have also further considered their combined impact as well as the individual elements.

[60] In the circumstances of this application, I have taken and considered all of the medical reports and related information on face value. I note that the issue is not whether there is evidence that would support a claim for personal leave under the Act as contended by Mr Halls. Rather, the focus is whether that material and the related circumstances provide an explanation for some or all of the delay in filing the s.365 application.

[61] The material before the Commission establishes that Mr Halls was involved in a motor accident in late January 2014 and this did lead to some ongoing treatment, a medical condition and a third party CTP claim. These circumstances are relevant to the assessment of the reason for the delay and do provide some of the context for the other events. In particular, the loss of his driver’s licence, the need to attend appointments and any discomfort he suffered from his medical condition are relevant to the explanation.

[62] However, the medical information taken together does not indicate that Mr Halls was unable to take steps to make the application for most of the period following the Court decision. Indeed, what is evident from the ‘other litigation and business dealings’ considerations is that Mr Halls was able to and did respond to litigation, process matters administratively, travel to appointments and took advice at some stage in that period about other matters.

[63] There were a number of events that occurred in that period and many of these are potentially relevant. At first glance, these do appear to provide a basis for a comprehensive explanation. However, when the detail of their impact is considered, a different picture emerges. Some of the events relied upon by Mr Halls took place before the Court decision but they set the context for other circumstances and litigation that may have distracted him from filing this application. However, they are not an answer in themselves and when considered as a whole, they tend to reinforce that he was medically and physically able to progress this matter despite the vehicle accident and its consequences.

[64] The other litigation and associated matters are also relevant in their own right and the fact that some of these required his attention and effort does also provide elements of a satisfactory explanation. However, as alluded to above, these also reinforce Mr Hall’s capacities in the relevant period.

[65] I do not accept that the factors associated with the filing of the s.365 application itself, provide an explanation for the delay. Mr Halls had provided an extensive Court application and the s.365 application relied upon almost all that material. There is no satisfactory explanation about the cost of the application being a factor for the delay 14 and although the need to accommodate three respondent parties on the Commission’s form may have required seeking some assistance, that is not a significant factor in the scheme of things and the overall delay in filing.

[66] In the end result, I find that there are some events and circumstances in combination that provide some reasonable explanation for the further delay. However, the overwhelming implication of the material before the Commission is that despite an awareness that he needed to make the s.365 application and already required an extension of time, Mr Halls did not prioritise this matter.

[67] Accordingly, there is some explanation for elements of the delay in lodging the application however some of the further delay after the Court decision has not been satisfactorily explained.

Any action taken by the person to dispute the dismissal

[68] In this case, this consideration is clearly related to the reasons for the delay as discussed above.

[69] Mr Halls took action through the Court application to dispute the dismissal and had earlier approached McCardle seeking a review of the termination. All the respondents have been on notice since the Court application that Mr Halls was disputing his dismissal.

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

[70] This consideration refers to prejudice to the employer. In this case, McCardle was Mr Halls’ employer.

[71] McCardle makes reference in its submissions 15 to the potential double-dipping of claims for lost wages, however no specific prejudice appears to have been claimed beyond the need to defend the application itself.

[72] In terms of prejudice caused by the delay itself, nothing has been specifically advanced by McCardle.

[73] The absence of specific prejudice to the employer is a factor supportive of a finding of exceptional circumstances however it is not in itself a sufficient basis to grant an extension of time. 16

[74] In relation to any prejudice to Cameron Nominees and Woolworths, these were not Mr Halls’ employers and s.366(2)(c) refers only to the employer. This was not the subject to full debate by the parties and for present purposes I have adopted a narrow approach to this consideration and not taken account of any suggested prejudice to these parties at this point.

The merits of the (general protections) application

[75] The consideration of the merit of the application in this context is limited to the prima facie merits. 17 There is considerable material before the Commission going to the factual circumstances at the time of the dismissal and the consequences for Mr Halls. None of that has been tested given the nature of the present decision.

[76] Based upon Mr Halls’ material, he was treated very unfairly in the manner by which his employment was terminated. This includes the allegation that the decision to dismiss him was based upon the suggestion that he would be banned from the “Woolworths” site permanently and before any such decision had been made. The apparent decision not to reconsider that decision, when the actual views of Cameron Nominees (there would not be a ban) was made known, was also harsh.

[77] Indeed, based upon Mr Halls’ versions of events, he would have a strong unfair dismissal application and indeed the contended unfairness of the circumstances represents the overwhelming thrust of this application. However, Mr Halls is not eligible to have an unfair dismissal application determined by the Commission due to his very short service 18 and this is a general protections application which has a different legal basis and scope.

[78] Without dealing with each of the elements that could underpin a general protections application arising from termination of employment, the apparent primary basis for such a claim in this matter is that the adverse action (the dismissal) was contrary to the protection in s.340 of the Act.

[79] The Act provides the basis for such action in s.340 and s.341 in the following terms:

“340 Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4-1).

341 Meaning of workplace right

Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a) a conference conducted or hearing held by the FWC;

(b) court proceedings under a workplace law or workplace instrument;

(c) protected industrial action;

(d) a protected action ballot;

(e) making, varying or terminating an enterprise agreement;

(f) appointing, or terminating the appointment of, a bargaining representative;

(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k) any other process or proceedings under a workplace law or workplace instrument.

........”

[80] The operation of the s.340 protection may be summarised as follows.

[81] Section 340 proscribes the taking of adverse action “because” the person against whom it is taken, has a workplace right, has or has not exercised such a right or proposed to exercise that right, or to prevent them from exercising a workplace right. Whether adverse action can be said to have been taken “because” of a workplace right is a question of fact that cannot be found to exist merely because there is both adverse action and the existence of a workplace right. What is needed is a sufficient connection between the two which permits the conclusion that the former had occurred “because” of the latter. The conclusion contemplated by the provision requires an inquiry into whether the exercise of the workplace right was the reason that the action (otherwise coming within the statutory definition of “adverse action”) was taken. That is a question of fact and requires consideration of the subjective reasons of the actual decision-makers. 19

[82] The question posed by s.340 also requires a consideration of whether the workplace right was a reason for the decision. For it to be a reason, the workplace right must be a “substantial and operative factor”. 20

[83] I will deal later with the other potential bases contended by Mr Halls in his application, however when pressed for details about how the dismissal was in breach of the general protections, he could not point to a basis that would appear to fit any of the workplace rights outlined above. In essence, Mr Halls complains that he did not breach the safety rules; that the dismissal was premature and was not consistent with the policies in place at the workplace; and was grossly unfair. Assuming that all of that is correct, this would not on face value amount to a dismissal because of, or to prevent, the exercise of a workplace right as defined by the FW Act.

[84] Mr Halls was not represented and I would accept that the relatively narrow basis of this present jurisdiction may not be immediately obvious. I also allow for the fact that Mr Halls may not have been able to identify the workplace right, although one may have been exercised or potentially so. For instance, Mr Halls informed the Court in his Court application that he had earlier made a complaint about the condition of a trailer and had been informed that this should be directed to Cameron Nominees, rather than to Woolworths. Mr Halls did not cite this as an explanation for his dismissal however it could potentially have been the exercise of a workplace right for present purposes.

[85] Further, in the s.365 application, Mr Halls implies that he was prevented from raising his complaint with Woolworths and Cameron Nominees. It is not clear that this relates to the dismissal and no connection was made by Mr Halls in his various submissions. It is however at least conceivable that he may have had a workplace right to make a compliant to these parties, although the basis for such has not been articulated.

[86] I have also not heard the competing evidence regarding the circumstances leading to the dismissal given the nature of the present issues.

[87] For those reasons, I cannot say with precision that the application completely lacks merit as a general protections matter; albeit that it would appear to be limited.

[88] In terms of the other grounds cited by Mr Halls, there would appear to be little substance in terms of the legal basis to each of those complaints. That is, whilst he may contend that he has been coerced 21 or subject to undue influence or pressure,22 or been the subject of misrepresentations,23 these protections have a particular meaning under the Act. None of the complaints made by Mr Halls would appear to fall within the scope of those particular protections.

[89] Further, no basis for the Division 5 Other protections or Division 6 Sham arrangements, at least as they apply under the Act, has been set out in any of the material provided by Mr Halls.

[90] As a result, I find that whilst Mr Halls may well have been unfairly treated based upon his version of events, there would appear to be little merit in the application as a general protections matter. I do however allow for the fact that Mr Halls may have some basis under the general protections that he has not yet articulated and cannot therefore conclusively find that the application has no merit in that regard.

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

[91] There are no directly relevant circumstances here and this is a neutral consideration. I do note that the consistent application of principles adopted by the Commission in similar matters, where an extension of time to contest a dismissal is sought, 24 is in line with this consideration and I have sought to adopt that approach in this case. This has included consideration of some of the cases cited by Mr Halls to illustrate where medical conditions and other factors have been relied upon as part of explanations for delays in filing. Each case must however be considered on its own particular facts.

7. Conclusions and orders

[92] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am on balance not persuaded that there are exceptional circumstances as contemplated by s.366(2) of the Act. There is accordingly no basis to extend the time for lodgement of this application under the Act.

[93] As a result, there is not a valid application before the Commission and an order 25 that the general protections application be dismissed will be made in conjunction with this decision.

Appearances:

J Halls the applicant in person.

R Martin for KR and KM McCardle and Sons Pty Ltd.

T Reaburn of Henry Davis York, with permission, for Woolworths Limited.

D Thompson of Hunt & Hunt Lawyers, with permission, for Glen Cameron Nominees Pty Ltd.

Hearing details:

2014

Adelaide

July 30.

Final written submissions:

Respondent parties:

13 August 2014.

Mr Halls:

18 August 2014.

 1 Part 3-1 of the FW Act.

 2 S.366(1)(a) of the FW Act.

 3 S.366(2) of the FW Act.

 4   The directions followed a conference with the parties on 1 May 2014.

 5 Now contained in s.370 of the FW Act - s.371 at the time of the Court application.

 6 Mr Halls’ s.365 application.

 7   Ibid.

 8   [2011] FWAFB 975.

 9   Mr Halls cited various authorities in support of his propositions and these have been considered.

 10   Written submission dated 15 August 2014.

 11   See the discussion of the operation of time limits in Dutton v Dutton Group Pty Ltd T/A Southern Vales Accounting[2013] FWC 9622.

 12   Signed on 15 May 2014.

 13   See Nulty at par [22].

 14   Mr Halls could have sought a waiver of the filing fee.

 15   Submission filed 30 May 2014.

 16   Brodie-Haans v MTV Publishing Ltd (1995) 67 IR 298.

 17   Although also determined in a slightly different statutory context the decision in H Kyvelos v Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.

 18 Mr Halls was not protected from unfair dismissal - Sections.382, 383, 390 and 396 of the FW Act.

 19   See Board of Bendigo Regional Institute of Technology and Further Education v Barkley (2012) 290 ALR 647.

 20   See also BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132.

 21   S.343 of the Act refers to coercion associated with industrial activity.

 22   S.344 of the Act refers to undue influence or pressure associated with matters that do not appear relevant here.

 23   S.345 is concerned with knowingly or recklessly make a false or misleading representations in relation to workplace rights.

 24 See the approach of the Full Bench to s.366(2)(e) of the Act in Ballarat Truck Centre Pty Ltd v Melissa Kerr[2011] FWAFB 5645.

 25   PR55576.

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