Johnathon Huggard v Fashion Factory Outlet (Trade Secret) Pty Ltd

[2015] FWC 1587

[2015] FWC 1587

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Johnathon Huggard
v
Fashion Factory Outlet (Trade Secret) Pty Ltd
(C2014/7641)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 6 MARCH 2015

Application to deal with contraventions involving dismissal - extension of time.

[1] On 7 November 2014 Mr Johnathon Huggard (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Fashion Factory Outlet (Trade Secret) Pty Ltd (the Respondent) on 16 October 2014 in contravention of the general protections provisions of the Act. As the application had been lodged one day outside the statutory timeframe for lodgement specified at s.366(1) of the Act, the Fair Work Commission (the Commission) wrote to Mr Huggard and Trade Secret advising that a decision would need to be made as to whether further time for lodgement of the application would be allowed as per s.366(2) of the Act.

[2] Directions were issued requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Those directions invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with its directions. While both parties filed an outline of submissions, neither party asked to be heard on the matter.

[3] The Commission convened a brief telephone hearing on 5 March 2015 to enable it to ask the parties a number of questions regarding their outline of submissions.

[4] For the reasons set out below I have found that there are not exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application cannot proceed and the application is therefore dismissed.

Background

[5] On 28 April 2014 Mr Huggard commenced employment with Trade Secret as a Sales Supervisor at its Woden outlet in the ACT. The position was subject to a six month probationary period.

[6] On 10 October 2014 Mr Huggard was supervising casual employees in the absence of his direct supervisor, Ms Watts. Ms Watts had left instructions for Mr Huggard, including that casual employees were to merchandise and put stock on the floor. However, Mr Huggard recalled from his training that casual employees were not trained to perform this task. In Ms Watts’ absence Mr Huggard contacted the Area Manager who confirmed his understanding in this regard. Mr Huggard submits that Ms Watts was unhappy about this and hung up on him when he informed her of it by telephone. In the ensuing days, Mr Huggard contends that Ms Watts apologised for her behaviour and that his colleagues were unresponsive to him.

[7] In subsequent developments, Mr Huggard was asked to attend a meeting with Ms Watts and the manager of another Trade Secret store on 16 October 2014. At that meeting Mr Huggard was informed that it had been decided to terminate his employment. On 20 October 2014 Mr Huggard received written confirmation of his dismissal with the stated reason for his dismissal being “various aspects of your performance and suitability of the role are unsatisfactory.”

[8] Mr Huggard consulted the Youth Law Centre on 3 November 2014 when he was advised that he was not eligible to make an unfair dismissal application as he had been employed by Trade Secret for less than six months. While not mentioned in his written submissions, Mr Huggard submitted at the hearing on 5 March 2015 that he had contacted the Youth Law Centre shortly after his dismissal but was unable to secure an appointment in the short term. In response to a question from the Commission at that hearing, Mr Huggard acknowledged that he was aware of the 21 day statutory time frame for making an unfair dismissal when he called the Youth Law Centre.

[9] Mr Huggard also contended in his written submissions that he was subsequently contacted by the Youth Law Centre at 5.30 pm on 6 November 2014 and advised of the possibility of making a general protections application. He met with the Centre on 7 November 2014 who assisted him in completing his application which was lodged with the Commission later that day.

The Relevant Legislation

[10] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

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

[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[12] The reasons cited by Mr Huggard for the delay in lodging his application are set out at paragraphs [8] and [9] above.

[13] Trade Secret stated that it had a strong objection to the application on the basis that it had been lodged one day outside the 21 day statutory timeframe.

[14] I am not convinced that the reasons identified by Mr Huggard for the delay in lodging his application support a finding that exceptional circumstances existed. While Mr Huggard pointed to the difficulties he had in securing an appointment with the Youth Law Centre, the primary reason for the delay appears to be that Mr Huggard was unaware prior to the conversation with the Youth Law Centre on 6 November about his ability to make an application under the general protections provisions of the Act. Further, Mr Huggard provided no explanation as to why he did not seek advice from an alternative source in circumstances where he was aware of the 21 day statutory timeframe for making an unfair dismissal claim yet was having difficulties securing an appointment with the Youth Law Centre.

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

[15] Mr Huggard submitted that he was not informed of the reasons for his dismissal at the meeting of 16 October 2014 and when he asked was told to contact the Respondent’s Human Resources (HR) area. Mr Huggard submitted that he endeavoured to call the HR area on eight occasions during the course of the day and left four messages asking to be called back. He also submitted that he made further calls in the ensuing days and that to date his calls have not been returned and that other than the reasons outlined in his termination letter he has received no other explanation of the reasons for his dismissal.

[16] Beyond that, as previously noted Mr Huggard submitted that he contacted the Youth Law Centre shortly after his dismissal but was unable to secure an appointment until 3 November 2014. At the hearing on 5 March 2015, Mr Huggard also indicated that he had contacted the Fair Work Ombudsman.

[17] I am satisfied that Mr Huggard took steps to clarify the reason for his dismissal and to seek advice on the options open to him to dispute his dismissal.

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

[18] Trade Secret did not make any submissions in relation to this consideration.

[19] It is noted that the mere absence of prejudice does not of itself justify the Commission allowing a further period for the making of an application. As a consequence, I consider this to be a neutral consideration.

(e) The merits of the application

[20] Mr Huggard contends that Trade Secret contravened the Act by dismissing him because he exercised a workplace right. He cites his action in contacting his Area Manager to clarify whether casual employees could perform certain tasks as the real reason for his dismissal. Mr Huggard contends that as he was not informed of the reason(s) for the dismissal on 16 October 2014 that he believed that ‘... I was unfairly dismissed and I have no way of knowing whether the reasons given for my dismissal were valid.’ Mr Huggard also contended that his employment record was exemplary and pointed to the fact that he had received bonus payments on three occasions.

[21] Trade Secret disputed that any adverse action had taken place. In its submission, Trade Secret contended that the reasons for Mr Huggard’s termination were outlined in the termination letter and that during his period of employment four employees within the team submitted complaints to the Area Manager regarding Mr Hubbard. Trade Secret submitted at the hearing that Ms Watt had discussed the matters raised in those complaints with Mr Huggard prior to his dismissal. However, this was disputed by Mr Huggard. On the bonus payment issue, Trade Secret submitted that the bonus payments were team bonuses paid in circumstances where the team/store achieves budget as opposed to individual bonuses. At the hearing, Trade Secret indicated that managers have discretion as to how the bonus is distributed among employees, meaning that some employees may get different bonus amounts.

[22] Neither party provided any evidentiary material, e.g. witness statements, to support their respective submissions.

[23] On the basis of the limited material before the Commission I am unable to form a view as to the merits of the application. I therefore consider this to be a neutral consideration.

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

[24] No submissions were made by either party in relation to this consideration.

Conclusion

[25] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”

[26] While I acknowledge the difficulties Mr Huggard had in securing an appointment with the Youth Law Centre, as noted at paragraph [14] above the primary reason for the delay appears to be that Mr Huggard was unaware prior to his conversation with the Youth Law Centre on 6 November 2014 about his ability to make an application under the general protections provisions of the Act. Drawing on Nulty, ignorance of the existence of the general protections provisions of the Act does not support a finding that exceptional circumstances existed. Further, I find it difficult to comprehend that given the difficulties Mr Huggard encountered in securing an appointment with the Youth Law Centre why he did not seek advice from an alternative source.

[27] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365.

[28] Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be separately issued.

Appearances:

J Huggard on his own behalf.

J Gocking for Fashion Factory Outlet (Trade Secret) Pty Ltd.

Hearing details:

2015.

Melbourne, Sydney (telephone):

March 6.

 1   [2011] FWAFB 975

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