Kane Julian v K& J solutions T/A Skyav
[2018] FWC 286
•15 JANUARY 2018
| [2018] FWC 286 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Kane Julian
v
K& J solutions T/A Skyav
(C2017/4881)
COMMISSIONER RIORDAN | SYDNEY, 15 JANUARY 2018 |
Application to deal with contraventions involving dismissal – extension of time.
[1] Mr Kane Julian has lodged a general protections application in relation to his termination by K&J Solutions Pty Ltd t/a Skyav.
[2] The Fair Work Act, 2009 (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 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 of time for the application to be made if the delay is due to exceptional circumstances.2
[3] Mr Julian was terminated on 18 August 2017. Mr Julian sent correspondence to the Commission on 2 September 2017 “applying under the general protections law for unfair dismissal”. On 4 September 2017, the Commission sent correspondence to Mr Julian advising that the material lodged does not constitute a valid application under the Act as he had not attached a completed application form (F8).
[4] Numerous attempts were made by the Commission to contact Mr Julian by telephone, email and mail between 4 – 20 September 2017 in relation to his application. Mr Julian failed to respond to every attempt that was made by the Commission to contact him. On 20 September 2017, the Commission sent a letter via email to Mr Julian stating:
“20 September 2017
Mr Kane Julian
Dear Mr Julian
Application for the Fair Work Commission to deal with a General Protections Dispute
Title: Julian v Skyav
Fair Work Commission File Number: C2017/4881
On 2 September 2017 the Fair Work Commission (the Commission) received the attached email from you. The material that you have provided does not constitute a valid application under the Fair Work Act 2009 as you have not attached a completed application form.
To lodge an application you are required to lodge the appropriate form. Forms can be found on the Commission's website at you wish to lodge an application you should urgently contact the Commission or provide a completed copy of the application form you wish to lodge.
Please be aware that some applications must be lodged within specific timeframes. Applications lodged outside of these timeframes may be dismissed.
To discuss this matter further you should contact the Commission on 1300 799 675 or reply directly to this email.
Yours sincerely
Fair Work Commission” 3
[5] On 21 September 2017, Mr Julian contacted the Commission and explained that he was experiencing difficulties sending the application to the Commission via the Online System and email services. Mr Julian submitted a completed application on 21 September 2017, 13 days outside of the statutory timeframe.
[6] Mr Julian failed to submit an outline of submissions or any evidence in accordance with the Directions issued on 6 October 2017.
[7] The matter was listed for Objections Conference/Hearing by telephone on 18 October 2017. Numerous unsuccessful attempts were made to contact Mr Julian.
[8] Once again, correspondence was sent by the Commission to Mr Julian by email on 20 October 2017 advising Mr Julian that he had seven days to provide satisfactory reasons in writing in relation to his noncompliance with the Directions and his non-attendance at the Hearing otherwise his application may be dismissed.
[9] On 22 October 2017, Mr Julian responded by email:
“To Commissioner Riordan,
I write this letter to ask to have the matter reheard as I was unable to take the telephone interview with commissioner Riordan as I have been having some difficulty's with my phone company I was unable to receive phone calls for around a month and a half and would only occasionally get tct (sic) messages telling me I had must a call and I would have to call people back upon discussing this with optus they have now fixed the solution and I am able to receive phone calls again although they have now removed mg voicemail and I am still receiving some of my text msgs and emails and such things like this late. In addition to that I tried to call back a number of times and could not get a hold of anybody and left voicemails, I have finally spoken with Stevie and she asked me to send in this letter explains g why I missed such appointments.
Thank you.
Kane Julian”
[10] A further hearing was scheduled for 20 November 2017. Mr Julian participated in this hearing and submitted that he had experienced difficulties with his mobile phone company. Mr Julian provided no evidence of his technological difficulties.
[11] Mr Julian also claimed that he received a telephone call from the Commission advising that his application had not been accepted because he had not submitted the appropriate form. Mr Julian claimed that he then received an email from the Commission on 7 September 2017 advising that his documentation of 2 September 2017 has been accepted as an application lodged in accordance with the FWC Rules 2013.
[12] Mr Sim, from Skyav, submitted that this type of unreliable behaviour was typical of Mr Julian. Mr Sim claimed that Mr Julian had consistently failed to follow company guidelines and has generally been unable to meet work related deadlines. Mr Sim submitted that Mr Julian had been given numerous chances by Skyav. Further, Mr Sim claimed that Mr Julian lacks credibility on the basis that he always has an excuse – the latest being that his phone was faulty.
Statutory Provisions
[13] The relevant statutory provisions are as follows:
Section 585 applications in accordance with procedural rules
An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind.
Note 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).
Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.
Section 586 correcting and amending applications and documents
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.
Section 587 dismissing applications
(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.
[14] In Hambridge v Spotless Facilities Services Pty Ltd 4 a Full Bench held:
“[41] Having regard to the above matters, we are satisfied that exceptional circumstances exist. A simple procedural error by Mr Hambridge led to a set of circumstances which ultimately caused him to discontinue the first application and make the late second application, when in fact the matter would have been rectified by the use of powers under s.586 without the need to make any late application at all. That is clearly an unusual situation. The jurisdictional prerequisite for the grant of an extension of time is satisfied, and for the same reasons and taking into account the same matters we exercise our discretion in favour of granting to the extension. A mistake in using a wrong form by a self-represented applicant should not lead to an outcome which is fatal to the applicant’s access to the Commission’s jurisdiction.” 5
Consideration
[15] I have taken into account all of the submissions that the parties have provided in determining this matter.
[16] It is apparent that Mr Julian did not give his application the attention that it deserved. Having searched the records of the Commission, there is no record of Mr Julian leaving a voicemail of any description with the Commission. Nor is there any record of the Commission sending Mr Julian correspondence on 7 September 2017 advising that he had submitted a valid application. I am of the view that neither event occurred. I have taken this into account.
[17] The simple fact is that Mr Julian did not submit an application in accordance with the Act. Unlike the Full bench decision in Hambridge, Mr Julian’s error is not a simple procedural error in submitting the wrong form. Mr Julian did not submit a form of any description but simply sent an email. I have taken this into account.
[18] The Commission attempted to contact Mr Julian on numerous occasions to advise him that he had not submitted a valid application. Mr Julian did not respond to any of these approaches by the Commission until the threat was made to dismiss his application. If Mr Julian knew that he was suffering technological issues with his phone, then it would have been appropriate for him to contact the Commission to ascertain the progress of his application or to advise the Commission of his technological problems. For Mr Julian to simply sit idle in the hope of some kind of miracle contact from the Commission portrays a sense of apathy on Mr Julian’s part in relation to his application. I have taken this into account.
[19] I do not accept the intermittent technological problems allegedly suffered by Mr Julian. I note that Mr Julian received the Commissions’ emails of 20 September 2017 and 20 October 2017 and responded expeditiously to both of these emails. In my view the implied consequences in these email invoked a belated sense of urgency in Mr Julian’s conduct. I have taken this into account.
Conclusion
[20] I find that Mr Julian has not provided a satisfactory explanation as to why he failed to comply with numerous Directions from the Commission. Mr Julian failed to provide any evidence of either his alleged technological difficulties or the correspondence from the Commission accepting his application. I accept the submission of Mr Sim that Mr Julian was typically unreliable. I have formed the view that Mr Julian is not a credible applicant.
[21] For the reasons identified above and in accordance with section 587(1)(a) of the Act, I dismiss Mr Julian’s general protections application on the basis that Mr Julian failed to submit an application in accordance with the Act, failed to comply with the Directions of the Commission and failed to provide an acceptable explanation for not participating in the Hearing on 18 October 2017.
COMMISSIONER
1 Section 366(1)(a) of the Act. Note that the 21 days for lodgement 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 Letter from the Commission emailed to Mr Julian dated 20 September 2017
4 [2017] FWCFB 2811
5 Ibid at [41]
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