Kevin Lawless v G+S Engineering Services Pty Ltd

[2021] FWC 6240

[2021] FWC 6240

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kevin Lawless
v
G+S Engineering Services Pty Ltd
(C2021/3165)

DEPUTY PRESIDENT MANSINI MELBOURNE, 3 NOVEMBER 2021

General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Mr Lawless for the Commission to deal with a general protections dispute involving dismissal from his employment with G+S Engineering Services Pty Ltd (Company), made under s.365 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that the application was filed outside the statutory timeframe and, not being satisfied that there are exceptional circumstances taking into account the factors at s.366(2), I have determined not to allow Mr Lawless a further period within which to lodge the application. The reasons for this decision follow.

Was the application made out of time?

[3] Section 366(1) of the Act requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[4] In his original application, Mr Lawless stated that he was dismissed on and effective 11 May 2021. 1 After the Company raised the jurisdictional issue and, in his subsequent evidence, Mr Lawless said that he was not terminated on 11 May 2021 because he was not given notice in writing.2 This subsequent dispute gives rise to a question as to whether the application was made out of time.

[5] The Company’s Site Project Manager (a Mr Abraham Azzam) gave evidence that he handed a termination letter to Mr Lawless in a meeting on 11 May 2021, that Mr Lawless read the letter in front of him and asked why his employment was being terminated. A termination letter was in evidence and clearly states that the Company had decided not to continue Mr Lawless’ employment beyond his probationary period and, as a result, the employment would end on 11 May 2021 with one weeks’ payment to be made in lieu of notice. The letter is dated 10 May 2021 which Mr Azzam said was in error because it was given to Mr Lawless on 11 May 2021. 3

[6] In evidence at the hearing on 29 October 2021, Mr Lawless maintained that he did not take or read a termination letter on 11 May 2021 but accepted that he had met with Mr Azzam on 11 May 2021 and that Mr Azzam said his employment was terminated. Mr Lawless gave evidence that he had asked Mr Azzam to tell him the reason for his termination. Mr Azzam’s evidence was that he had not wanted to engage with Mr Lawless in detail and so he responded that Mr Lawless would need to speak with his manager about the details of the reason for his termination.

[7] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed, though it may be communicated orally. 4 Where the communication of the dismissal is in writing, the communication must have been received by the employee in order for the termination to be effective.5 

[8] I prefer Mr Azzam’s account of the meeting of 11 May 2021, which I found to be transparent and credible. I accept that the letter that was incorrectly dated 10 May 2021 but provided to Mr Lawless in the meeting with Mr Azzam on 11 May 2021 constitutes a communication that the employment had come to an end effective 11 May 2021. 

[9] However, even if Mr Lawless did not take or read the termination letter given to him in that meeting and even in the absence of a specific reason, on his own evidence (and consistent with his original statements to the Commission, in his application) Mr Lawless clearly understood by the oral discussion he had with Mr Azzam on 11 May 2021 that his employment was terminated with immediate effect.

[10] Accordingly, I find that the effective date of Mr Lawless’ dismissal was 11 May 2021.

[11] The general protections application was dated 1 June 2021 but not lodged with the Commission until 3 June 2021. The period of 21 days ended at midnight on 1 June 2021. The application was therefore filed 2 days outside the 21-day period.

Are there exceptional circumstances?

[12] Having established that the application was filed after the expiry of the statutory timeframe, the application can only proceed if the Commission is satisfied that there are ‘exceptional circumstances’.

[13] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 6 Exceptional circumstances may 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 can be considered exceptional.7

[14] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[15] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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.

[16] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

Reason for the delay – s.366(2)(a)

[17] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered. 8

[18] The original application indicated that it was filed within 21 days and did not provide a reason for the delay. The application itself was dated 1 June 2021 but the lodgement email was sent to the Perth Registry of the Commission on 3 June 2021.

[19] In his written materials filed with the Commission and evidence given at the hearing, Mr Lawless described the reasons for his delay as, in summary:

a) He spent a large part of the day following his dismissal (12 May 2021) travelling from site to Perth and when he arrived home was exhausted having just worked a 14-day roster;

b) Upon arriving in Perth on 12 May 2021, he had passed through Terminal 3 of the Perth Airport, which was a potential COVID-19 exposure site and went into isolation for 2 weeks and experienced symptoms (or at least was unwell) during this period, but did not get a COVID-19 test; and

c) He tried to write to the Commission but was unable to access the server because he had an outdated Windows XP computer, he had to buy a new computer from Melbourne which he purchased online and took 3 weeks to get delivered. He also said he had an iphone 4 but would not have been able to complete an application form using that device.

[20] I accept that Mr Lawless was not in a position to attend to the filing of this application on 12 May 2021, being the first day of the 21-day statutory timeframe.

[21] Mr Lawless did not produce any probative evidence of his contention that Perth Airport was a “possible” COVID-19 hotspot at the relevant time or that he was required to self-isolate for the 14 days from 12 May 2021. In any event, there remained a further period of 6 days within which the application could have been lodged within time.

[22] Regarding his technical difficulties, Mr Lawless could not recall the exact dates and, although given an opportunity to produce receipts after the hearing, said he had not found receipts to establish purchase and/or delivery date(s) of the new computer. Notwithstanding that Mr Lawless was in possession of an iphone, and accepting that he “may have” had phone reception at the relevant times, Mr Lawless did not suggest that he had attempted to lodge the application by telephone. Whether Mr Lawless was ignorant of such alternative methods or simply did not avail of such alternatives is perhaps unfortunate but not unusual or exceptional.

[23] When asked in evidence why the application was dated 1 June 2021 but not lodged until 3 June 2021, Mr Lawless could not recall the exact details but thought that he had started preparing and working on the application on 1 June 2021 and it was then sitting on his computer. He said he did not recall when he went to Officeworks to use their facilities. The lodgement email reflects that Officeworks Fremantle sent a document to Mr Lawless at his private email address on 3 June 2021 and that email was then forwarded to the Commission’s Perth Registry on 3 June 2021.

[24] On the evidence before the Commission it is apparent that at least by 1 June 2021 (being the last day of the 21-day period), Mr Lawless was capable of preparing the application on his computer. He has offered no (or, at best, no plausible) explanation for why he did not attend to filing the application on that day (which would have been within the statutory timeframe) or indeed the following day.

[25] Having regard to all of the evidence before the Commission, I am not satisfied that Mr Lawless has established an acceptable, reasonable or credible explanation for the delay. This weighs against an extension of time.

[26] For completeness, Mr Lawless did not contend that he was ignorant of the statutory timeframe nor would I find ignorance of itself to reasonably justify the delay.

Action taken to dispute the dismissal – s.366(2)(b)

[27] In respect of s.366(2)(b), I am required to take into account any action taken by Mr Lawless to dispute the dismissal or to place the employer on notice of his intention to dispute the dismissal.

[28] Mr Lawless requested a reason for his dismissal in the 11 May 2021 meeting but there is no evidence that, save for lodging this application, Mr Lawless took any action to dispute the dismissal as contemplated by s.366(2)(b). In my view, this is a neutral factor.

Prejudice to the employer – s.366(2)(c)

[29] I cannot identify any particular prejudice that would accrue to the Company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time.

[30] I consider this to be a neutral factor in this case

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

[31] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[32] Having examined the materials and considered the evidence before the Commission, it is evident that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. Whilst some elements of the claim appear baseless, with the benefit of Counsel I consider Mr Lawless may have been able to make out at least a prima facie case.

[33] I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

[34] For completeness, to the extent Mr Lawless contends underpayment such claim might properly be pursued in another jurisdiction.

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

[35] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.

[36] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[37] For the above reasons, Mr Lawless did not file this application within the statutory timeframe.

[38] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the intention of Parliament that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances. Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[39] For the above reasons, I have determined not to grant an extension of time under s.366(2). Accordingly, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr K. Lawless on his own behalf.
Ms S. Williams for the Company.

Hearing details:

2021.
Melbourne (by Video).
29 October.

Printed by authority of the Commonwealth Government Printer

<PR735375>

 1   Application at Items 1.2, 1.3 and 2.1.

 2   Mention of 1 October 2021; Applicant’s Statements of 14 and 15 October 2021; Applicant’s evidence at the Hearing on 29 October 2021.

 3   Witness Statement of Mr Azzam filed on 28 October 2021 at 8-10 and annexure AA-2.

 4   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24] and Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne Print Q9605 (AIRC, Whelan C, 10 December 1998).

 5   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [17].

 6   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 7   Ibid.

 8   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].