Kaine Dundovich v Joemie Family Trust, Lidgerwood Family Trust, Glenn Williams Family Trust

[2018] FWC 2778

[2018] FWC 2778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kaine Dundovich
v
Joemie Family Trust, Lidgerwood Family Trust, Glenn Williams Family Trust
(C2018/871)

COMMISSIONER SAUNDERS NEWCASTLE, 17 MAY 2018

Application to deal with contraventions involving dismissal – application for extension of time refused – application dismissed.

Introduction

[1] On 19 February 2018, Mr Kaine Dundovich lodged an application pursuant to s.365 of the Fair Work Act 2009 (Act) alleging that he was dismissed on 23 January 2018 and his employer, Joemie Family Trust, Lidgerwood Family Trust, Glenn Williams Family Trust trading as Sheren Electrics Pty (Respondent), contravened ss.340, 343, 344 and 351 of the Act (Application).

[2] Section 366 of the Act provides that a person who has been dismissed and who applies to the Fair Work Commission (Commission) for it to deal with a general protections dispute pursuant to s.365 of the Act, must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[3] This decision concerns whether I should exercise my discretion to allow Mr Dundovich a further period for his Application to be made.

The Hearing

[4] On 11 May 2018, a hearing was conducted by telephone in relation to Mr Dundovich’s application for an extension of time.

[5] Mr Dundovich gave evidence in support of his application for an extension of time. The Respondent adduced evidence from Ms Shelley Lidgerwood. Both parties made submissions.

Legislative Scheme

[6] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(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.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for a person applying for an extension of time. 3

[8] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following in relation to “exceptional circumstances”:5

“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.”

Consideration

Reasons for delay – s.366(2)(a)

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 6 A dismissal can be communicated orally.7

[10] It is relevant to consider whether the applicant has provided a credible and acceptable reason for any part of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[11] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is an acceptable reason for the delay beyond the 21 day period and ultimately whether that reason constitutes, or contributes to a finding of, exceptional circumstances. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“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.”

Relevant chronology of events and reasons for delay

[12] In his Application, Mr Dundovich stated that he was dismissed on 23 January 2018. The 21 day time period for Mr Dundovich to make a general protections application pursuant to s.365 of the Act expired on 13 February 2018. 12 Given that Mr Dundovich filed his Application on 19 February 2018, the Application was six days late.13

[13] In accordance with the principles summarised in paragraphs [9] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging a general protections application. In this case, that is the period from 13 to 19 February 2018. However, the circumstances from the time of the alleged dismissal (23 January 2018) must be considered in order to determine whether there is an acceptable reason for any part of the delay beyond the 21 day period.

[14] Mr Dundovich gave evidence, which I accept, that he was in daily contact with the Commission for a number of days commencing on or about 24 January 2018. On or about 30 January 2018, Mr Dundovich became aware that he had 21 days from the date of his dismissal to make an application to the Commission.

[15] Mr Dundovich proffered four reasons for his delay in filing his Application:

(a) First, he had to re-enroll at school after being dismissed;

(b) Secondly, he had to look for another job;

(c) Thirdly, he had to see a couple of solicitors in relation to a claim that the Respondent was making against him in connection with damage occasioned in a motor vehicle accident; and

(d) Fourthly, he was trying to have what he believes are underpayments of his wages rectified by the Respondent.

[16] I accept that Mr Dundovich was very busy attending to these matters in the period following his dismissal and prior to lodging his Application but I do not consider that any of the four reasons proffered by Mr Dundovich, whether considered in isolation or collectively, are out of the ordinary course, unusual, special or uncommon. I find that Mr Dundovich has not provided an acceptable reason for any part of the period that his Application was delayed.

[17] This factor (s.366(2)(a)) weighs against granting Mr Dundovich an extension of time.

Any action taken by the person to dispute the dismissal – s.366(2)(b)

[18] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 14

[19] Mr Dundovich engaged in communications with the Respondent following his alleged dismissal on 23 January 2018 in relation to a range of matters, including alleged underpayments of wages which he says are owed to him. It is clear from these post-dismissal communications that Mr Dundovich took action to dispute his dismissal. This factor (s.366(2)(b)) weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)

[20] Prejudice to the employer will weigh against granting an extension of time. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16 The employer must produce evidence to demonstrate prejudice.

[21] A long delay gives rise “to a general presumption of prejudice”. 17 The period of the delay in this matter was six days, which is a relatively small period of delay.

[22] The Respondent has not adduced any credible evidence to establish prejudice.

[23] Noting that the delay was six days, I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the Respondent is a neutral consideration.

Merits of the application – s.366(2)(d)

[24] Mr Dundovich contends that the Respondent contravened ss.340, 343, 344 and 351 of the Act. He asserts that he was treated poorly way by the Respondent in a variety of ways during his employment. Although it is difficult to understand at this stage how Mr Dundovich would articulate his various claims under ss.340, 343, 344 and 351 of the Act, some allowance must be made for the fact that Mr Dundovich was self-represented. In the result, I am not prepared to find, at this stage, that Mr Dundovich’s claim is without merit. I am therefore satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Fairness as between the person and other persons in a like position – s.366(2)(e)

[25] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 18 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[26] I am not satisfied that the issue of fairness as between Mr Dundovich and other persons in a similar position is a relevant consideration in this matter. Therefore, I find that this factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[27] The only factor weighing in favour of Mr Dundovich is the action taken by him to dispute the dismissal. The reasons provided by Mr Dundovich for the delay weigh against a finding of exceptional circumstances. The remaining factors are neutral. Having taken into account the factors referred to in s.366(2)(a) to (e) of the Act, I am not satisfied that there are exceptional circumstances warranting my consideration of whether I should exercise my discretion to allow a further period within which the Application may be lodged.

[28] I therefore dismiss the Application.

COMMISSIONER

Appearances:

K. Dundovich, appearing on his own behalf.

S. Lidgerwood, appearing on behalf of the Respondent.

Hearing details:

2018.

Newcastle:

11 May.

Printed by authority of the Commonwealth Government Printer

<PR607179>

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

 2   Section 366(2) of the Act

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ibid at [13]

 6   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 7   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 11   [2016] FWCFB 349 at [31]

 12   That is, 21 days from 23 January 2018 (not including 23 January 2018) is 13 February 2018.

 13   That is, 19 February 2018 is 6 days after 13 February 2018.

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 15   Ibid

 16   Ibid

 17   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 18   [2016] FWCFB 6963