Johnny Vasilevski v Paper Street Pty Ltd T/A Metro Plant

[2017] FWC 1008

[2017] FWC 1008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Johnny Vasilevski
v
Paper Street Pty Ltd T/A Metro Plant
(C2016/7316)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 20 FEBRUARY 2017

Application to deal with contraventions involving dismissal.

[1] On 12 December 2016 Mr Johnny Vasilevski (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Paper Street Pty Ltd T/A Metro Plant (the Respondent).

[2] The Applicant commenced employment with the Respondent on 20 October 2015. He was employed as a plant operator at the Respondent’s premises in West Footscray in Melbourne. He says that he was dismissed on 26 June 2016 and the dismissal took effect on that day.

[3] The application was lodged four and a half months late.

Alleged Contravention

[4] The Applicant submits that he was dismissed because he asked for clarification of his salary and sought payment of some unpaid allowances. A breach of s.340 is alleged.

Respondent’s Submissions

[5] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[6] The Respondent states that it did not dismiss the Applicant but rather that he left the workplace on 22 June 2016 and did not return.

Relevant Legislation

[7] 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.”

Approach of the Commission

[8] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[9] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[10] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Commission Proceedings

[11] On 23 December 2016, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 13 January 2016.

[12] The Applicant was self-represented. The Respondent was represented by Ms S. Cowle, solicitor and Ms A. Taylor and Mr J. Menzel. Ms Cowle was granted permission to appear pursuant to s.596 of the Act.

Matters to be taken into account pursuant to s.366(2)

[13] 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

[14] The explanation of the long delay in filing provided by the Applicant is that he did not know his industrial rights or know that there is a time limit for lodging application. This is not a ground which can justify the granting of an extension of time.

[15] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

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

[16] The Applicant continued to agitate about his alleged under-payment but there is no evidence of the Applicant taking other action to dispute the dismissal.

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

[17] I consider this factor to be neutral.

(d) Merits of the application

[18] The Applicant says that he was dismissed because he made demands for under-payment of wages and allowances to be rectified. There is undoubtedly a dispute about the alleged underpayment of certain allowances.

[19] The Respondent says, however, that the Applicant left the workplace on 22 June 2016 and has not returned. It says that the Applicant was not dismissed.

[20] Given the divergence of accounts and lack of evidence, I consider that the merits of the application are a neutral factor.

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

[21] 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.366(2). Accordingly, the application is dismissed.

Conclusion and Order

[22] 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.366(2). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Johnny Vasilevski under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

J. Vasilevski self-applicant;

S. Cowle, solicitor with A Taylor and J. Menzel for the Respondent.

Hearing details:

2017

January 13 (telephone hearing).

Printed by authority of the Commonwealth Government Printer

<Price code A, PR590372>