John Patterson v Action Demolition and Asbestos Removal Pty Ltd

[2017] FWC 3124

[2017] FWC 3124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

John Patterson
v
Action Demolition & Asbestos Removal Pty Ltd
(C2017/1824)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 JUNE 2017

Application to deal with contraventions involving dismissal.

[1] Mr John Patterson alleged that the termination of his employment by Action Demolition & Asbestos Removal Pty Ltd was in breach of the general protections provisions of the Fair Work Act 2009. ADAR denies the allegation.

[2] Given his dismissal took effect on 1 March 2017, his general protections telephone application lodged on 5 April 2017 was not made within 21 days of the date the dismissal took effect.

[3] Mr Patterson did not file any material in support of his application for an extension of time despite being given an extension of time to do so. At the hearing, I allowed Mr Patterson to give oral evidence in support of his application. During the hearing Mr Patterson advised that he did not have his documents with him and that he was participating in the hearing whilst at work. Mr Patterson had been provided with copies of the documents he and ADAR had filed and advised to have them with him at the hearing. Mr Patterson did not advise prior to the hearing that he could not participate in the hearing at its scheduled time. I am satisfied that Mr Patterson had a reasonable opportunity to present his case. Whilst I am not unsympathetic to the difficulties faced by unrepresented parties in these matters it is incumbent on parties who institute proceedings to be prepared to make their case.

[4] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[6] Mr Patterson said that after his dismissal he had trouble where he was living which meant he had to find alternative accommodation. Mr Patterson also said he started a new job and was working 10-12 hours per day. In addition, Mr Patterson said he did not have a computer and was computer illiterate. Mr Patterson initially made his application by telephone. When asked why he didn’t ring the Commission before 5 April 2017 he said he didn’t know.

[7] It is not unusual for dismissed employees to undertake other employment after losing their job. I accept that not having a computer makes it difficult to access information but Mr Patterson was able to contact the Commission by phone and make a telephone application. There was no reasonable explanation as to why he could not have done this within the 21 day time limit set by the Act.

[8] While I accept that Mr Patterson faced some additional difficulties in making this application, I am not satisfied that he has provided a reasonable explanation for the whole of the delay.

[9] This weighs against a finding that there are exceptional circumstances.

(b) any action taken by the person to dispute the dismissal;

[10] Mr Patterson did not take any steps to dispute his dismissal other than lodging this application.

[11] This weighs against a finding that there are exceptional circumstances.

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

[12] ADAR said that it would be prejudiced if an extension of time were granted as it is a small business and the matter will involve additional administrative work and it has limited resources.

[13] I am satisfied that ADAR will suffer some prejudice if the matter were to proceed but there was no evidence that the delay has caused any prejudice.

[14] I consider this to be a neutral consideration.

(d) the merits of the application;

[15] In the matter of Kornicki v Telstra-Network Technology Group² the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit." ³

[16] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case."⁴ 

[17] Mr Patterson, in his application, did not set out how he said his dismissal breached the general protections provisions of the Act. At the hearing, Mr Patterson said he was dismissed because he complained that he was being required to drive an unsafe truck. Mr Patterson said that he was abused by another worker for raising the issue. In the end he had to make the truck safe himself. Mr Patterson said it was his right to refuse to drive an unsafely loaded truck.

[18] Mr Shannon Rose accepted that Mr Patterson made a complaint about the load on the day he was dismissed. He said he accepted that it was valid complaint and that he told those loading the truck to adjust the load because it was too high.

[19] Mr Rose said that he did not dismiss Mr Patterson because he complained about the unsafe load. He said Mr Patterson had only worked for them as a casual employee for four weeks. During that time he had been late on 2-3 occasions and had not been available on other occasions. Further Mr Rose said that the job involved both truck driving and laboring and on occasions Mr Patterson refused to do laboring work, saying it was not his job.

[20] ADAR submitted that Mr Patterson’s work ethic was not up to its expectations and that his supervisors and work mates did not want to work with him.

[21] Mr Patterson denied that he would refuse to perform laboring work and denied saying that it was not his job. He said he worked hard for ADAR.

[22] There are factual differences between the parties which are not able to be resolved at an extension of time hearing. In light of the evidence I am unable to conclude that Mr Patterson’s claim is without merit. This weighs in favour of a finding that there are exceptional circumstances.

(e) fairness as between the person and other persons in a similar position.

[23] There were no submissions that there were any persons in a similar position.

Conclusion

[24] I am not satisfied that there are exceptional circumstances. Mr Patterson has not provided a reasonable explanation for the whole of the delay and while the merits of the claim weigh in favour of such a finding, it is not sufficiently strong so as to outweigh the other criteria. Mr Patterson’s application for an extension of time is therefore dismissed and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

J. Patterson on his own behalf.

B. Rose and S. Rose for the Respondent.

Hearing details:

2017.

Melbourne:

7 June.

1 [2011] FWAFB 975.

2 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

3 Ibid

4 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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