John Mamur v Coles Group Supply Chain Pty Ltd

[2020] FWC 3885

[2020] FWC 3885

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

John Mamur
v
Coles Group Supply Chain Pty Ltd
(C2020/972)

DEPUTY PRESIDENT BOYCE SYDNEY, 28 JULY 2020

Application to deal with contraventions involving dismissal — application lodged out of time — whether existence of exceptional circumstances — where no exceptional circumstances exist as a matter of fact or law — where discretion to grant extension of time is not enlivened — application dismissed.

Introduction

[1] On 18 February 2020, Mr John Mamur (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Applicant did so by filing a Form F8 (General Protections Application) with the Commission’s Registry. The Applicant claims that his employment with Coles Group Supply Chain Pty Ltd (Respondent) was terminated by the Respondent on 13 January 2020 in contravention of Part 3-1 of the Act.

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) of the Act does not include the day on which the dismissal took effect.

[3] The Applicant has lodged his application 15 days outside of the statutory time limit. To be within time, the Applicant should have lodged his General Protections Application on or before 3 February 2020.

[4] On 12 June 2020, I convened a hearing (by telephone) to determine whether to allow the Applicant an additional period of time within which to lodge his application. The Applicant appeared for himself. Ms Mo Mulenga (Senior Consultant Advisory (Workplace Relations), Coles Group) appeared for the Respondent.

[5] Having considered the evidence and submissions of the parties, I have determined that there are no exceptional circumstances that would then enliven my discretion to grant the Applicant an extension of time to file his General Protections Application. My reasons for this decision follow.

Background

[6] The Applicant was initially employed by Polar Fresh Pty Ltd in October 2010. The Respondent took over this business in October 2017, and the Applicant’s employment was transferred accordingly.

[7] Between 2017 and 2019, there were a series of alleged “bullying” incidents (subject to dispute between the parties) regarding the treatment of the Applicant by his colleagues. While I make no finding in respect to the particulars of these incidents, for present purposes it only need be recognised that these incidents appear to have formed the basis for the Applicant writing to the Respondent on 9 June 2020 (Termination Letter).

[8] By way of the Termination Letter, the Applicant:

(a) resigned from his employment, effective 13 January 2020;

(b) states that his resignation has been “induced by bullying and victimisation” by his colleagues; and

(c) states that he of the view that his resignation is in fact a “constructive dismissal” because of the alleged “bullying and victimisation”.

[9] On 16 January 2020, Ms Eloise Swindon (People and Culture Manager, Coles Group) sent an email to the Applicant, whereby Ms Swindon confirmed that the Respondent accepted the Applicant’s resignation (effective 13 January 2020), but otherwise denied that the Applicant had been constructively dismissed.

[10] Further, Ms Swindon’s email notes the Respondent’s concerns regarding the allegations made by the Applicant, and invites the Applicant “the opportunity for a meeting or phone call to provide further context”.

[11] On 23 January 2020, the Applicant wrote back to Ms Swindon as follows:

“I’m adamant that I’ve been constructively dismissed based on employer conduct. Moreover it’s injudicious for you to conclude, that I’m resigning on my own initiative based on conjecture, since the DCM wants to explore the allegations that induced my resignation. Anyway I’m available to meet the DCM onsite on 28/01/2020 at 3:00 pm”.

[12] On 28 January 2020, Ms Swindon responded as follows:

“Please be advised I was on leave from 24/1 to 27/1 so I have only reviewed my e-mails this morning – unfortunately 3:00pm today is not suitable however if you can provide alternate availability for this week I can arrange a meeting onsite”.

[13] Later that same day, the Applicant replied as follows:

“Thursday 30/01/2020 at 3pm is convenient, otherwise I’m available on 03/02/2020 3pm”.

[14] On 3 February 2020, the Applicant met with Mr Jaime Colthart (Distribution Centre Manager, Coles Group). During that meeting, the Applicant re-iterated his concerns and allegations regarding the alleged bullying and victimising behaviours directed toward him by his colleagues. Further, Mr Colthart’s evidence is that:

(a) the Applicant told Mr Colthart that the relationship between the Respondent and Applicant was “broken, irreparable and that the Applicant would “never be a Coles employee again”; and

(b) the Applicant told Mr Colthart that he was going to make an application to the Commission.

Matters to be taken into account

[15] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are outlined in s.366(2) of the Act, which reads:

“366 Time for application

…

(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.”

[16] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 2 A decision whether to extend time under s.366(2) involves the exercise of a discretion.3

[17] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. In Nulty v Blue Star Group Pty Ltd (Nulty), 4 the meaning of “exceptional circumstances” was addressed by the Full Bench of Fair Work Australia as follows:

“[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”.

(emphasis added)

[18] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 5

[19] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[20] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.

[21] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 6

[22] The Applicant submits that there were two reasons for the delay (in summary):

(a) the Applicant was unable to lodge his application on time because the Respondent wanted to investigate reasons prompting his dismissal, and so the Applicant had to wait to attend the scheduled meeting (which delayed the submission of his General Protections Application) (Meeting Reason); and/or

(b) the Applicant’s aunt passed away overseas, and the Applicant’s mind was otherwise “occupied” with his Aunt’s passing, and not in a position to lodge his General Protections Application within time (Occupied Mind Reason).

[23] As to the Meeting Reason, the Applicant submits that the Respondent’s invitation to investigate the Applicant’s allegations after the Applicant communicated his resignation effectively reversed the Applicant’s resignation, as there was no “finality” about the matters in dispute (i.e. the end of the employment relationship). I reject that submission. The Respondent’s acceptance of the Applicant’s resignation was unequivocal.

[24] The Respondent submits that the Applicant’s meeting with Mr Colthart was scheduled and occurred prior to the expiration of the Applicant’s 21-day lodgement timeframe. Had the Applicant made his Application to the Commission on 3 February 2020, after meeting with Mr Colthart, the Applicant’s Application would have been on time. Instead, the Applicant delayed the lodgement of his Application for a further 15 days.

[25] Putting aside issues of merit and jurisdiction that arise as to whether the Applicant’s resignation constitutes a “dismissal” within the meaning of s.365 of the Act (noting I am without jurisdiction to make such findings), 7 I am minded to agree with the Respondent’s submissions regarding the Meeting Reason for the delay.

[26] In general, there is nothing “exceptional” about an employer seeking to investigate allegations of bullying and victimisation made by an employee as part of their resignation letter, post the cessation of the employment relationship between the parties. If anything, it is a commendable action to take, and demonstrates a desire by a Respondent to deal with and resolve such matters, if they did occur, in the workplace going forward. Having particular regard to this case, the Respondent had clearly communicated its position regarding its acceptance of the Applicant’s resignation, and the purpose of the post-resignation investigation. Nothing the Respondent did could be seen to have mislead the Applicant into believing that that investigation had suspended the Applicant’s resignation (or dismissal) or otherwise cast doubt as to the date of the employment relationship coming to an end (i.e. on 13 January 2020). That the Applicant took an erroneous view as to the Respondent’s position on the cessation of the his employment is not an exceptional circumstance. It is nothing more than an ordinary mistake made by an employee.

[27] Significantly, the Applicant had sufficient time to prepare and file his Application prior to or following the meeting on 3 February 2020. The simple fact is that the timing and occurrence of that meeting does not lean toward a finding of exceptional circumstances vis-à-vis the period and reason for the delay post that meeting.

[28] As to the Occupied Mind Reason, the Applicant says that his aunt passed away around 10 January 2020 (i.e. before the Applicant resigned from his employment). The Applicant submits that “clearly” his mind was “not right”. However, while the Applicant put forward this reason for delay, he withdrew this as a reason for delay during the hearing. To that end, I do not have regard to the Applicant’s or Respondent’s respective position on this reason.

[29] Having regard to the evidence and submissions of the parties as to the Applicant’s reason for delay (i.e. the Meeting Reason), I conclude that the Meeting Reason weighs against any finding as to exceptional circumstances in the Nulty sense.

Action taken by the Applicant to dispute the dismissal

[30] Action taken by an applicant to contest a dismissal, prior to the lodging of an application, is a factor to which I must have regard. It may show that a respondent is on notice that a dismissal is conested, and weigh in favour of a finding as to exceptional circumstances. 8

[31] The Applicant appears to again rely on the Meeting Reason in respect to this criterion. As I understand it (noting that the Applicant has not expressly stated as such), the Applicant’s position is that the post-resignation investigation meeting demonstrates that he was actively trying to dispute the circumstances that led to the end of the employment relationship.

[32] The Respondent acknowledges that between 13 January 2020 and 3 February 2020, the Applicant communicated with the Respondent to advance allegations of forced resignation and workplace bullying (which the Respondent denies). The communications between the Applicant and Ms Swindon occurred within 21 days of the Applicant’s resignation. However, the Respondent submits that the Applicant did not take any action to dispute his alleged dismissal after 3 February 2020, other than filing his General Protections Application 15 days late. The Respondent submits that there were no exceptional circumstances arising from the action taken by the Applicant to dispute the dismissal.

[33] Again, I am minded to agree with the Respondent’s submissions in this regard. The wording of s.366(b) is clear — regard must be had to the actions of the employee in disputing his dismissal. In this instance, the post-resignation investigation was initiated and carried out by the Respondent. It was not carried out at the behest of the Applicant. The Applicant did little more than attend his former workplace and provide information in order to assist the Respondent’s inquiry as to alleged bullying and victimisation. The Applicant’s participation in that meeting (or investigation) was not action that disputed his dismissal; it was an opportunity to provide the Respondent with information that had led to his resignation. In other words, the Applicant’s actions regarding the investigation did not, on the evidence, give rise to what might be said to the Applicant disputing his dismissal.

[34] Further, having regard to the email communications between the Applicant and Ms Swindon, and the unchallenged evidence of Mr Colthart, the Applicant could be under no misapprehension as to the Respondent’s position regarding the investigation. In view of the facts before more, I am not satisfied that the circumstances as considered under s.366(b) of the Act lean towards a finding of exceptional circumstances.

Prejudice to the employer

[35] Neither party made submissions or provided evidence that the Respondent was prejudiced by the delay. As such, I take the view that this criterion is of neutral consideration.

Merits of the application

[36] The principles stated Kyvelos v Champion Socks Pty Ltd,⁹ albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:

“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”. 10

[37] The Respondent has made a number of submissions as to the merits of the Applicant’s case (i.e. challenging that the Applicant was dismissed, or in the alternative, was dismissed because the Applicant exercised a workplace right). The documentary evidence before me places a significant jurisdictional hurdle before the Applicant (i.e. whether he was “dismissed” within the meaning of s.386 of the Act). It appears to me that the Applicant’s ability to resolve this issue in his favour may well be fatal to his claim, although I am unable to make any finding in this regard. I therefore regard it as a neutral consideration in this matter..

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

[38] Neither party identified a person who might be said to be in a similar position to the Applicant. I therefore consider this criterion to be neutral consideration in this matter.

Conclusion

[39] I am not satisfied that the evidence in this matter discloses the existence of “exceptional circumstances” within the meaning of s.366 of the Act. Of the criterion that I must consider, two weigh against any finding as to exceptional circumstances, and the others are neutral. As such, I conclude that I am not in a position to grant the Applicant an extension of time in which to file his General Protections Application.

[40] Accordingly, the Applicant’s General Protections Application is to be dismissed. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for himself.

Ms Mo Mulenga (Senior Consultant Advisory (Workplace Relations), Coles Group) appeared for the Respondent

Hearing details:

A hearing was held on 12 June 2020, by telephone

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth) s.366.

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 3   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 4   [2011] FWAFB 975, cited with approval in Tamu v Australia for UNHCR [2019] FWCFB 2384 at [16] – [20].

 5   See: Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 (at [13]). See also: Griffiths v The Queen (1989) 167 CLR 372 at 379; 87 ALR 392; 41 A Crim R 163; 63 ALJR 585; [1989] HCA 39 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

 6   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 7   See: Milford v Coles Supply Chain Pty Ltd[2019] FWCFB 7658.

 8   Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298.

9 (1995) 67 IR 298.

 10   Ibid at 299 to 300.