Justin Webb v Disability Services Australia Limited

[2016] FWC 41

[2016] FWC 41

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Justin Webb
v
Disability Services Australia Limited
(C2015/6214)

DEPUTY PRESIDENT KOVACIC CANBERRA, 5 JANUARY 2016

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Justin Webb (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 24 September 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Disability Services Australia Limited (DSA – the Respondent) on 20 August 2015 in contravention of the general protections provisions in the Act. As the application had been lodged 14 days outside the statutory timeframe for lodgement, the Commission issued Directions on 23 October 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The parties indicated that they did not wish to be heard on the extension of time issue, and consented to the Commission determining the matter based on the material lodged in accordance with the Directions.

[3] DSA advised the Commission on 9 November 2015 that it does not oppose the request for an extension of time.

[4] For the reasons set out below I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5] Mr Webb commenced employment with DSA on 30 March 2015 in the position of support worker. DSA provides community services to the disabled.

[6] Mr Webb was dismissed on 20 August 2015 following a meeting to discuss Mr Webb’s performance at work, including allegations of him having an inappropriate relationship with one of DSA’s clients 1. The termination letter stated:

“As you are aware your employment contract has a qualifying period of 6 months during which time we assess your suitability to meet our future requirements. As a result of this assessment process DSA has decided to terminate your employment within the qualifying period.”

[7] Mr Webb initially made an unfair dismissal application under s.394 of the Act which was received by the Commission on 9 September 2015 2, i.e. within the 21 day statutory timeframe.

[8] On 10 September 2015 the Commission notified Mr Webb’s representative by telephone and email that Mr Webb did not meet the minimum employment period for an unfair dismissal application, having been employed by the DSA for less than five months. Specifically, the correspondence from the Commission stated, inter alia, that:

“As discussed and confirmed during our telephone conversation of 10 September, your client’s application indicates that he has not been employed for the minimum employment period required under the Fair Work Act 2009.

Sections 382 and 383 of the Fair Work Act 2009 require an applicant to be “an employee who has completed a period of employment with his or her employer of at least the minimum employment period.” If the employer is a small business employer, the minimum period of employment is one year which ends at the earlier of the date the employee is given notice of dismissal or, where no notice is given, the date of the dismissal. If the employer is not a small business employer the minimum period of employment is six months which ends at the earlier of the date the employee is given notice of dismissal or, where no notice is given, the date of the dismissal.

… based on the information you have provided, you do not appear to have satisfied the minimum employment period. In these circumstances the Fair Work Commission (‘the Commission’) has no jurisdiction to deal with your application.

You are required to advise the Commission whether you wish to proceed with your application (telephone [phone]). Contact details for Community Legal Centres in your State/Territory are provided at the end of this letter if you would like to get some independent advice about the options available to you.

To notify the Commission you do not wish to pursue your application, you should do one of the following:

• sign, and return to this office, the enclosed Notice of Discontinuance within 14 days; or



• call [phone] to discontinue your application by telephone; or



• send a letter, email or fax to the Commission confirming your wish to discontinue.

In the event that no notification is received from you within 14 days, your application may be dismissed.”

[9] A Form F50 – Notice of Discontinuance in the unfair dismissal matter was received on 24 September 2015 along with Mr Webb’s general protections application. In his application, Mr Webb contends that he was dismissed by DSA in contravention of s.351(1) of the Act. As previously noted, Mr Webb’s general protections application was filed 14 days outside the 21 day statutory timeframe specified in s.366(1)(a) of the Act.

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] Mr Webb submitted that he has shown “a continued, ongoing attempt to protect his right against dismissal. Mr Webb’s application for an extension of time should not be rejected as a result of the use of the wrong form.” 3 In addition, Mr Webb submitted that:

• he received correspondence from the Commission stating that he had not completed the right form;



• he had done everything within his power to assist the Commission as much as possible as was shown by him lodging a Notice of Discontinuance instead of requiring the Commission to make a ruling of discontinuance or amending his unfair dismissal application;



• finding against an extension of time would result in adverse unfairness in the face of providing an application on the wrong from which is easy to do in multi-faceted matters; and



• finding against an extension of time would subvert the objects of the Act, particularly as set out at s.3(e) of the Act.

[13] In his submissions Mr Webb relied on the decision in Etemi v Canterbury Child Care Centre (Etemi) 4.

[14] As previously noted DSA did not oppose the request for an extension of time.

[15] Mr Webb’s submission that he had received correspondence from the Commission that he had not completed the correct form is not supported by the Commission’s records. As can be seen from the extract of the Commission’s correspondence of 10 September 2015 to Mr Webb’s representative, the correspondence highlights that, based on the information contained in Mr Webb’s unfair dismissal application the Commission has no jurisdiction to deal with the application as he had not satisfied the minimum employment period. There is no mention of Mr Webb having used the wrong form. Beyond that correspondence, the Commission’s records show no other communications with Mr Webb’s representative regarding his unfair dismissal application.

[16] Further, it is noteworthy that Mr Webb’s general protections application was not filed with the Commission until 24 September 2015 14 days after the Commission’s correspondence of 10 September 2015. This is despite there only being minimal difference between the content of Mr Webb’s general protections and unfair dismissal applications. Mr Webb provided no explanation for this delay. As the Full Bench in Cheval Properties Pty Ltd (T/A Penrith Hotel Motel) v Smithers 5 concluded, a credible reason must be provided for the entire period of the delay.

[17] As to Mr Webb’s reliance on the decision in Etemi, the circumstances in that case are different to those in this case. In Etemi, the Applicant had initially filed an unlawful termination application under s.773 of the Act which she later sought to amend under s.586 of the Act to a general protections application under s.365. Deputy President Hamilton agreed to amend the application and in his decision observed “The present matter does not involve a fundamental alteration in the nature of the application.” 6 However, that is not the case in this matter which does involve a “fundamental alteration of the nature of the application.” As the Full Bench in Peter Ioannou v Northern Belting Services Pty Ltd (Ioannou)7 observed at paragraph [18], “An unfair dismissal application under s.394 is fundamentally different to a general protections application under s.365, even though both may arise from the same set of circumstances involving the dismissal of an employee.” With regard to Mr Webb’s submission that he could have sought to amend his unfair dismissal application, I note that the Full Bench in Ioannou observed that “… the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made.”8

[18] In Mr Gery Lane v Kangaroo Island Dive & Adventures Pty Ltd 9Senior Deputy President O’Callaghan granted an extension of time in circumstances where the Applicant had initially made an application under s.773 and following a conference convened by the Senior Deputy President on 15 April 2010 made an application under s.365 of the Act. In that case, at the conference, the Senior Deputy President expressed some doubt as to whether the s.773 application could be pursued as the Respondent was a national system employer. Also at the conference, the Respondent did not oppose an extension of time on the basis that the s.365 application would be made on or before 19 or 20 April 2010, i.e. several days after the conference. As it turned out the s.365 application was lodged on 21 April 2015. The Senior Deputy President was however satisfied that there were reasonable explanations for the delays for the periods 15-19 or 20 April 2010 and 19 or 20-21 April 2010 on the basis of the Applicant accessing legal advice within a very short period of time10.

[19] Another relevant consideration in this case is that as a result of s.725 of the Act Mr Webb was precluded from making a general protections application until such time as he had discontinued his unfair dismissal application. As previously mentioned, a Notice of Discontinuance regarding his unfair dismissal matter was received by the Commission on 24 September 2015 together with his general protections application. Mr Webb relies on the fact that the Notice of Discontinuance was filed within the 14 day timeframe specified in the Commission’s correspondence of 10 September 2015 as an explanation for the time taken to lodge the Notice of Discontinuance and the accompanying general protections application. No other reason is provided for the time taken to lodge those documents. However, in the absence of a compelling reason for any such delay, a delay in filing a Notice of Discontinuance cannot be relied upon to effectively undermine the operation of s.366(2) of the Act. This is particularly the case given that the Commission’s correspondence of 10 September 2015 does not contemplate Mr Webb making a general protections application, nor do the Commission’s records indicate that any such intention was communicated to the Commission prior to that correspondence or prior to the Notice of Discontinuance being filed with the Commission.

[20] Taken together, the above analysis does not support the existence of exceptional circumstances.

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

[21] Mr Webb submitted that his responses in the ‘disciplinary investigation interview’ were in disputation of his termination, 11 although this meeting was conducted before he was actually terminated. No further action, other than lodgement of the unfair dismissal and general protections claims, was submitted.

[22] DSA did not make any submissions regarding this factor.

[23] In lodging his unfair dismissal application, Mr Webb clearly took action to dispute his dismissal. This supports the existence of exceptional circumstances.

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

[24] Mr Webb submitted that “there is no prejudice to the employer as (1) the employer has not incurred any costs, legal or otherwise to date; and (2) evidence of termination should still be in the possession of the employer.” 12

[25] DSA did not make any submissions regarding this factor, though as DSA does not oppose the request for an extension of time it could be inferred that DSA does not envisage that it will be prejudiced were an extension of time granted.

[26] I consider this factor to be a neutral consideration.

(d) The merits of the application

[27] Oddly, Mr Webb expressly declined to make a submission on the application’s merits, submitting “that it is not appropriate at this stage of the proceeding to make an assessment of the merits.” 13

[28] DSA did not make any submissions regarding this factor, though in its Form F8A – Employer Response to General Protections Application it denied that Mr Webb was dismissed because of his mental health disclosure.

[29] Mr Webb provided little, if any, material to substantiate his contention that he was dismissed as a result of his mental health. As such, it is difficult to form any view as to the merits of the application other than observing that based on the material before the Commission the merits appear less than compelling.

[30] On balance, I consider this factor to be a neutral consideration.

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

[31] No submissions were made on this point. Accordingly, I consider this factor to be a neutral consideration.

Conclusion

[32] 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 (Nulty) 14in 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.”

[33] Having considered all of the factors set out in s.366(2) and drawing on Nulty, 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).

[34] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1   Form F8 – General Protections Application Involving Dismissal at paragraph 5 of Item 3.1

 2   U2015/11742

 3   Applicant’s Outline of Submissions, under (a), para 4

 4   [2011] FWA 5936

 5 (2010) 197 IR 403 at paragraph 20

 6   [2011] FWA 5936 at paragraph [15]

 7   [2014] FWCFB 6660

 8   Ibid at paragraph [17]

 9   [2010] FWA 3939

 10   Ibid at paragraphs [14]-[15]

 11   Applicant’s Outline of Submissions, under (c), para 1

 12   Applicant’s Outline of Submissions, under (d), para 1

 13   Applicant’s Outline of Submissions, under (e)

 14   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575714>