Jonathan Hart v Damien John Pedder & Kirsty Michelle Pedder

[2014] FWC 1744

[2014] FWC 1744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jonathan Hart
v
Damien John Pedder & Kirsty Michelle Pedder as Trustees of the Plumbing Solutions Trust T/A Manion Plumbing
(C2014/3001)

COMMISSIONER GREGORY MELBOURNE, 20 MARCH 2014

Application for extension of time.

Introduction

[1] Mr Jonathan Hart was dismissed from his employment with Damien John Pedder and Kirsty Michelle Pedder as Trustees of the Plumbing Solutions Trust T/A Manion Plumbing (Manion Plumbing) on 16 January 2014. He was on annual leave at the time. He had been employed since April 2010 in the role of Solarhart Sales Manager. (The business has a Solarhart dealership). The business was acquired by the present owners in August last year.

[2] Mr Hart made some initial enquiries with the Commission shortly after his dismissal to establish what avenues of redress might be open to him and subsequently lodged a general protections application pursuant to s.365 of the Fair Work Act 2009. However, it was received by the Commission on 7 February 2014, one day after the expiry of the 21 day period set down in s.366 of the Act.

[3] Leave was granted to Mr Andrew Cameron to appear pursuant to section 596(2)(a) on behalf of Manion Plumbing.

The Issue to be Determined

[4] Section 366(2) of the Act enables a further period for an application to be made if the Commission is satisfied there are “exceptional circumstances” taking into account each of the various matters specified in the sub section. Do those “exceptional circumstances” exist in this case to justify the exercise of the discretion to grant Mr Hart an extended period in which to lodge his application?

The Evidence and Submissions

[5] Mr Hart was dismissed on 16 January after being called to a meeting with one of the owners of the business, Mr Damian Pedder, and the Operations Manager, Mr Gary Field. His letter of termination states in part, “Due to the operational requirements of the business we have to advise that we can no longer employee you,” 1 however, Mr Hart submits he has since been given various reasons for his dismissal at different times.

[6] Mr Hart said he has been in a state of shock and extremely stressed following his dismissal. His evidence indicates he had a discussion with the “Fair Work Commission office on or about 17 or 20 January 2014” 2 and some time later proceeded to lodge his application. The application is dated 6 February, but was not received by the Commission until the following day. Mr Hart said he believed 7 February was the expiry date of the 21 day period and therefore thought he had filed his application within the required timeframe.

[7] He indicated in response to a question from the Commission that nothing actually prevented him from lodging his application within the 21 day period, and from the time he first contacted the Commission to when he actually filed his application he was “considering his options.” He also submits, “I believe I have a strong genuine case against my former employer, I was dismissed in a manner which I believe was harsh, unjust and unreasonable conduct by the employer.” 3 He also submits the application was lodged only one day out of time, meaning any prejudice suffered by his former employer is limited.

[8] Manion Plumbing submits Mr Hart has provided no medical evidence to support the view he was stressed and in shock following his termination. It also submits these are not necessarily “exceptional circumstances” in the context of an employee who has been dismissed. In terms of the merits of the application it submits Mr Hart has not made out a case in support of his s.365 application and, in particular, has not identified the workplace right he exercised and claims has been breached.

[9] It submits, in summary, the evidence does not point to any “exceptional circumstances” to warrant an extension of time being granted in which to lodge the application.

Consideration

[10] I have some sympathy for Mr Hart. He appears to have been a loyal and largely successful employee during his time with Manion Plumbing, if various Solarhart dealership awards he received are any indication. He was also dismissed while on annual leave and without any prior indication he was about to be terminated. He says he has been shocked and distressed by what occurred. These are entirely understandable reactions in all the circumstances.

[11] However, in determining an application for an extension of time s.366 of the Act requires there be “exceptional circumstances” to warrant an exercise of the discretion to grant additional time to make an application, taking into account each of the matters set out in sub sections (a) to (e). I now turn to deal with the evidence and submissions of the parties by reference to those considerations and the relevant authorities.

[12] The decision in Nulty v. Blue Star Group Pty Ltd 4 is often cited in support of what is required to find “exceptional circumstances” exist to justify an extension of time being granted in which to make an unfair dismissal application. The Full Bench stated at paragraph [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.” 5

[13] I have adopted the reasoning of the Full Bench in coming to the decision in this matter.

(a) The reason for the delay

[14] Mr Hart says he was shocked when told he had been dismissed and the subsequent upheaval from that decision has been stressful for him and his family. This is an entirely understandable reaction in all the circumstances. Shortly after his dismissal he was in contact with staff at the Commission to explore what avenues of redress might be open to him. However, he then waited for more than two weeks to file his application. He said the delay was due to the fact he was evaluating the options open to him. Again, that is an understandable reaction.

[15] However, I am not satisfied any of these circumstances can be considered to be “exceptional” in the sense contemplated by the Full Bench in Nulty. Feelings of shock and stress following dismissal from employment are instead expected and understandable reactions as Commissioner Roe found in the matter of Ms Susan Rose v. BMD Constructions Pty Ltd 6 when he stated:

“[10] It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.” 7

[16] Taking time to consider one’s options in all the circumstances is also an understandable reaction and approach. However, these circumstances in combination, and the fact the application was inadvertently filed only one day late, do not act to make those circumstances “exceptional.” They are instead circumstances routinely encountered by the Commission in dealing with such applications.

[17] Mr Hart also acknowledged nothing actually prevented him from filing his application within the 21 day period.

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

[18] Mr Hart has clearly taken action to dispute his dismissal, both through his application to the Commission and in subsequent discussions and approaches to his former employer.

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

[19] Manion Plumbing acknowledges this consideration is not significant given the application was only one day out of time. Nevertheless, it is a small employer and would be required to direct attention and resources to the application if it proceeds.

(d) The merits of the application

[20] Mr Hart has made application under s.365 of the Act. However, his submissions and evidence do not disclose a contravention of that part of the Act. His assertion he was dismissed in a manner he believes “...was harsh, unjust and reasonable...” 8 appear instead to be based rather on an application under s.394.

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

[21] This is of limited relevance in the present matter. There are no others in a similar situation at the time.

Conclusion

[22] I am not satisfied that “exceptional circumstances” exist in this matter to warrant an exercise of the discretion to extend the time in which to make application. The apparent lack of merit in terms of an application pursuant to s.365 is one significant factor in coming to this conclusion. However, I have also had particular regard to the reasons for the delay. I don’t restate my conclusions in response to those matters at this point. Mr Hart had both reason and ability to lodge his application within the 21 day period following his dismissal. There were no “exceptional circumstances” as required by s.366(2) to prevent him from doing so. The application is dismissed.

COMMISSIONER

Appearances:

The Applicant appeared on his own behalf.

The Respondent was represented by Mr Andrew Cameron.

Hearing details:

2014.

Launceston:

11 March.

 1   Letter from Damien Pedder to Jonathan Hart, 16 January 2014, para 1

 2   Submissions of the Applicant at para 2

 3   Submissions of the Applicant at para 6

 4   [2011] FWAFB 975

 5   Ibid at [13]

 6   [2011] FWA 673

 7   Ibid at [10]

 8   Submissions of the Applicant at para 6

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