Jones v AP Eagers Pty Ltd T/A Bridge Toyota

[2014] FWC 1789

[2014] FWC 1789

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jones
v
AP Eagers Pty Ltd T/A Bridge Toyota
(C2013/7866)

VICE PRESIDENT CATANZARITI SYDNEY, 17 MARCH 2014

Application to deal with contraventions involving dismissal - application lodged out of time - whether exceptional circumstances exist such as to extend time for filing application - no exceptional circumstances - application dismissed.

[1] Mr Christopher John Jones (Mr Jones) was employed by AP Eagers Pty Ltd T/A Bridge Toyota (the Respondent) from 4 July 2011 until his dismissal on 19 July 2013. On that day, Mr Jones was dismissed due to alleged performance issues.

[2] On 31 December 2013, Mr Jones filed an application for the Fair Work Commission (FWC) to deal with a general protections dispute pursuant to s.365 of the Fair Work Act 2009 (the Act). Section 366 of the Act imposes a 21 day time limit for lodgement of an application. Mr Jones’ application was lodged 144 days out of time. Mr Jones, therefore, sought to have this time period extended pursuant to s.366(2) of the Act.

[3] I heard this application by video link on 13 March 2014. Both parties were unrepresented. At the conclusion of the hearing I informed the parties that Mr Jones’ application for an extension of time was refused and that reasons for the decision would be published shortly. These are the reasons for that decision.

The legislation

[4] Section 366 of the Act provides as follows:

“366 Time for application

(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).

(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.”

Submissions

[5] In Mr Jones’ initial application, he addressed the extension of time issue as follows:

“Firstly, I request an exemption from the normal time-frame for lodgement due to the ongoing workers compensation between myself, C.G.U. Insurance and Bridge Toyota. I am certain that initiating the action earlier would generate even more problems than already experienced.”

[6] Following a teleconference between the parties on 17 January 2014, I invited both parties to file further submissions on jurisdiction. On 26 February 2014, Mr Jones filed a document that was primarily concerned with the merits of the application, but did refer in part to the workers’ compensation claim:

“I had also injured myself at work and was receiving treatment for that injury. My sales manager was aware of the situation and we were working together to get the problem fixed. I had incorrectly assumed that because I had lodged an accident report regarding this injury, that once the time came for an operation, I was covered by workers compensation. However, I discovered that a different medical certificate needed to be obtained to commence this claim. This was done and I began receiving compensation. Bridge Toyota opted to back-date my claim to April 2013, the time I first visited a doctor for the injury. If this logic is followed, I was dismissed while being eligible for compensation. Surely, there cannot be two rules applied to the same injury.”

[7] During the course of the hearing, Mr Jones confirmed that the reason he did not submit his application earlier was that he was concerned that he would encounter difficulties if he were to submit this application prior to the resolution of his workers’ compensation claim. I asked Mr Jones at the hearing whether he had any other points upon which he intended to rely in relation to his extension of time application and Mr Jones replied that he did not.

[8] The Respondent submitted that while Mr Jones had lodged a claim for workers’ compensation, the Respondent could not understand how Mr Jones’ claim for workers’ compensation could have affected his ability to lodge his general protections application within the timeframe required in the legislation. The Respondent submitted that Mr Jones had failed to provide any other reason for his delay in making an application.

[9] The Respondent further submitted that Mr Jones had failed to identify a relevant workplace right or an adverse action that took place contravening a workplace right. Therefore, the Respondent submitted, Mr Jones’ application was without merit.

[10] The Respondent also submitted that at the date of the termination of Mr Jones’ employment, 19 July 2013, the Respondent was not aware of Mr Jones’ injury as although an incident report had been completed, the Respondent submitted that there was no indication that the incident had caused an injury. It was the Respondent’s submission that it had no reason to suspect that Mr Jones would make a claim for workers’ compensation at the date of dismissal.

Consideration

[11] A considerable body of authority has no developed within the Commission as to the meaning of ‘exceptional circumstances’ in the statutory context of the Act. A Full Bench of Fair Work Australia, as it then was, in Nulty v Blue Star 1 summarised the meaning of the expression in the following way:

“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.” 2

[12] In order to decide if there are exceptional circumstances such that an extension of time should be granted it is necessary to consider each of the matters in s.366(2)(a)-(e).

The reason for the delay

[13] The reason given for Mr Jones’ delay in submitting his application to the Fair Work Commission is that he was concerned that doing so prior to the resolution of his workers’ compensation application would give rise to further difficulties. It may be that Mr Jones genuinely held the view that dealing with two simultaneous legal claims could give rise to difficulties. However, the existence of a workers’ compensation claim is not so uncommon when a general protections application is made.

[14]

[15] Additionally, as noted in the Respondent’s submissions, Mr Jones’ workers’ compensation claim was not submitted until after the time limit imposed by s.366 had expired. Thus, it is difficult to accept that the sole reason for the delay was the existence of the workers’ compensation claim, but Mr Jones did not provide any further explanation despite this fact being put to him in cross-examination.

[16] Accordingly, the reason for Mr Jones’ delay cannot be characterised as an exceptional circumstance. This finding weighs against granting an extension of time to Mr Jones.

Any action taken by the person to dispute the dismissal

[17] There is no evidence of any steps taken by Mr Jones to dispute the dismissal. The evidence is to the contrary; no steps at all were taken by Mr Jones to challenge the dismissal. It seems that the dismissal was accepted by Mr Jones. This fact also weighs against granting an extension of time to Mr Jones.

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

[18] The Respondent did not submit, and there appears to be no evidence, that it would suffer from any significant degree of prejudice if the extension of time were to be allowed. However, I find that this factor is of little significance in this matter.

The merits of the application

[19] While the parties did not have an opportunity to present their full cases, I am of the view that Mr Jones’ case is not strong. His application does not specify a workplace right that was contravened, but it seems that his claim arises from the fact that he was dismissed after he was injured at work. While Mr Jones submits that his immediate manager was aware of the injury, the Respondent submits that it was not aware of the injury or the subsequent workers’ compensation claim at the time of dismissal. While I have formed no conclusive view on the merits of the case, they do not appear such as to weigh in favour of the granting of an extension to Mr Jones.

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

[20] I am of the view that this factor is of little assistance in determining this application, but I am not persuaded that refusing Mr Jones an extension of time will subject him to any unfairness when compared with other persons in a like position.

Conclusion

[21] Having considered the written submissions, oral submissions, both parties’ evidence and the provisions of the Act, I am not satisfied, for the reasons provided above, that exceptional circumstances existed to allow Mr Jones’ application to be filed out of time.

[22] An order dismissing the application will be issued with these Reasons for Decision.

VICE PRESIDENT

Appearances:

C Jones for himself.

S Harris for the Respondent.

Hearing details:

2014.

Darwin and Sydney (video hearing):

March 13.

 1   [2011] FWAFB 975.

 2   Nulty v Blue Star [2011] FWAFB 975, [13].

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