Kymbol Stuart Sheldon v Centrecare Incorporated T/A Centrecare
[2016] FWC 8506
•30 NOVEMBER 2016
| [2016] FWC 8506 [Note: a correction has been issued to this document] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Kymbol Stuart Sheldon
v
Centrecare Incorporated T/A Centrecare
(C2016/6477)
DEPUTY PRESIDENT DEAN | SYDNEY, 30 NOVEMBER 2016 |
Application to deal with contraventions involving dismissal.
[1] Mr Kymbol Stuart Sheldon (the Applicant) commenced employment with Centrecare Incorporated T/A Centrecare (the Respondent) on 8 May 2016 until his employment was terminated on 9 August 2016. He alleged that the termination of his employment by the Respondent was in breach of the general protections provisions of the Fair Work Act 2009 (the Act). The Respondent contends that the Applicant was dismissed within his probation period as a result of the Applicant’s failure to provide essential documentation required to fulfil the terms of his employment contract.
[2] Prior to the making of this application, the Applicant had filed an unfair dismissal application (the State application) in the Western Australian Industrial Relations Commission (the WAIRC). On 27 October 2016 the WAIRC dismissed the State application on jurisdictional grounds. On 1 November 2016 the Applicant made an application in the Fair Work Commission (the Commission) pursuant to s.365 of the Act.
[3] Given the Applicant’s dismissal took effect on 8 May 2016, his general protections application lodged on 1 November 2016 was made some 156 days outside the 21 day period prescribed by the Act.
[4] The matter was listed for hearing by telephone on 28 November 2016 to consider the extension of time issue. At the hearing, the Applicant appeared on his own behalf. Ms S Broers and Ms L Broadley appeared for the Respondent.
[5] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.
[6] Section 366 of the Act provides:
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.
[7] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd1 where the Full Bench said:
“[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.”
[8] I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
[9] The Applicant submits that the reason for the delay was the result of filing the State application, which he subsequently found out was the wrong jurisdiction for his claim.
[10] The State application was dismissed by the WAIRC on 27 October 2016 after it found that the Respondent was a constitutional corporation, and therefore the WAIRC did not have jurisdiction to hear the application.
[11] Following the dismissal of the State application, the Applicant gave evidence that he tried to file an unfair dismissal application with the Commission, however was unable to do so as he did not meet the minimum employment period. He then filed a general protections application on 1 November 2016 which is the subject of these proceedings.
[12] The Respondent submitted that it filed a written response on 14 September 2016 with the WAIRC, in which it objected to the State application because the Respondent was a constitutional corporation. It submitted that the Applicant was aware of its position about the lack of jurisdiction of the WAIRC to hear the State application by this date.
[13] I accept the evidence of the Respondent that the Applicant was aware of its jurisdictional objection. While it may have been reasonable for the Applicant to await the decision of the WAIRC, I consider that the Applicant should have taken some steps to seek advice at this point.
[14] I accept the Applicant’s evidence that he acted promptly to file his application with the Commission after his State application was dismissed.
[15] In weighing up the evidence and my findings in relation to this criterion, I consider that the reason for the delay is a neutral consideration.
Any action taken by the person to dispute the dismissal
[16] Actions taken by the Applicant to dispute the dismissal include the filing of the State application and the general protections application with the Commission.
[17] The Applicant gave evidence that he tried to contact the Respondent after his employment was terminated, however no one would talk to him. It is unclear as to when these attempts to contact the Respondent were made.
[18] I find that the actions taken by the Applicant to dispute the dismissal weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[19] The Respondent claims that it would suffer prejudice if the application to extend time is granted. It submitted that it had already been put to the cost and inconvenience of defending the State application in the WAIRC.
[20] I find on this basis that there would be some prejudice to the Respondent if an extension of time was granted. This weighs against a finding of exceptional circumstances.
The merits of the application
[21] For the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’2
[22] However, on the material before me, I am of the view that the Applicant’s general protections application would have limited prospects of success.
[23] In this case, the Applicant was dismissed because he was unable to secure a National Police Clearance and a Working With Children’s Card within his probationary period. This was a condition of his employment with the Respondent. The relevant sections of the letter of termination is as follows:
‘Dear Kymbol
TERMINATION OF EMPLOYMENT – FAILURE TO COMPLETE A SATISFACTORY PROBATIONARY PERIOD
This letter is to advise you that you that you have failed to complete a satisfactory probationary period due to failure to provide required documentation for continued employment as a Counsellor.
This is in breach of your employment contract which specifies you must provide a current National Police Clearance and a Working With Children’s Card. Your employment is terminated effective immediately.
…….’
[24] The Applicant initially filed the State application (alleging unfair dismissal) and subsequently sought to file an unfair dismissal application with the Commission. As outlined above, he was unable to pursue an unfair dismissal application with the Commission because he had not met the minimum employment period.
[25] A general protections application is not a fall-back option for employees who believe they have been unfairly dismissed but are unable (for whatever reason) to pursue an unfair dismissal claim. Having reviewed the Applicant’s general protections application, it seems clear that his claim is essentially an unfair dismissal claim.
[26] There is nothing contained within the Applicant’s general protections application to suggest that his general protections claim would have any real prospects of success. This weighs against a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
[27] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4
[28] There were no submissions or evidence that there were any persons in a similar position and I find it to be a neutral consideration.
Conclusion
[29] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. On this basis, the application is dismissed.
[30] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
K Sheldon on his own behalf.
C Boers and L Broadley for the Respondent.
Hearing details:
2016.
Sydney:
November 28.
1 [2011] FWAFB 975.
2 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
3 [2015] FWC 8885.
4 Ibid at [29].
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