Lachlan Ray v NLC Pty Ltd

[2020] FWC 2632

[2020] FWC 2632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Lachlan Ray
v
NLC Pty Ltd
(C2020/343)

DEPUTY PRESIDENT CROSS SYDNEY, 19 MAY 2020

Application to deal with contraventions involving dismissal.

[1] On 20 January 2020, Mr Lachlan Ray (“the Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant claimed he was employed, by NLC Pty Ltd (“the Respondent”). The Respondent disputed the identity of the employing entity and submitted that NLC Pty Ltd was not the employer of the Applicant, and that the Applicant was employed by SG Fleet Australia Pty Limited. In his submissions the Applicant apparently accepted that SG Fleet Australia Pty Limited was the correct employer.

[2] The Applicant commenced his employment with the Respondent on 25 July 2019. His dismissal took effect on 12 December 2019, and he was notified of his dismissal on that date.

[3] General protections applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by 2 January 2020. The application was therefore lodged outside of the time prescribed and was lodged 18 days after the last day on which such an application could have been made.

[4] On 12 February 2020, a Directions Hearing was conducted to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge his application (“the Application”) would be determined (“the Directions”). The Directions were:

1. The Respondent (NLC Pty Ltd) (as described in the initiating F8 application)) is directed to file with the Fair Work Commission (Commission), and serve on the Applicant (Lachlan Ray), an outline of submissions, witness statements and other documentary material it intends to rely on in support of its jurisdictional objection to this application no later than 4 pm on Thursday 27 February 2020.

2. The Respondent is directed to file Form F8A Response to general protections application no later than 4pm on Thursday 27 February 2020.

3. The Applicant is directed to file with the Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material he intends to rely on in response to the Respondent’s jurisdictional objection no later than 4 pm on Thursday 12 March 2020.

4. If a party wishes the Commission to consider any reply material, such reply material must be filed at the Commission and served on the other party 4pm on on Thursday 19 March 2020.

[5] In the Directions Hearing the parties were specifically directed to the provisions of s.366(2) of the Act, and they were advised to address the considerations outlined therein where appropriate.

[6] The parties complied with each of directions 1 to 3 above, and the Respondent provided an additional further short submission on 19 March 2020, responding to certain parts of the Applicants submission of 12 March 2020.

Consideration

[7] Section 366 of the Act determines the permissible time limit for a general protections application. Section 366(1) 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).”

[8] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(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.”

[9] It is clear from the structure of s.366(2) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[10] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[11] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this, Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[12] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 noted at [39]

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)

[13] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[14] In summary, the position of the Applicant expressed in the Application was that his application was delayed because:

(a) He was unprepared for losing his job;

(b) The termination occurred just shortly prior to Christmas;

(c) He needed to arrange cheaper accommodation, causing stress and lost time in seeking alternative employment during a time of holiday festivities/ business shut down; and

(d) That he was distracted and not coping with the unexpected disruption and subsequent necessary life changes.

[15] The Applicant provided further detail regarding the reasons for delay in his submission of 12 March 2020. That submission was as follows:

“1. Whilst ignorance of the required application deadline is not solely an adequate explanation for delay, it can be considered in conjunction with other circumstances. Appropriate identification of an Applicant’s rights is the responsibility of the Applicant themselves as outlined by Commissioner Hunt in Dunn vs Professional Investment Services [2016] FWC 5565: “Mr Dunn has not provided an adequate explanation as to why he did not undertake research in the period immediately following his dismissal.” I undertook research into my pathways for restitution immediately following my dismissal. Regrettably, the General Protections application eluded me and I subsequently eliminated the options of Unfair Dismissal or discrimination. This was due to my tenure still technically falling in probation (despite holding the most senior position in the team), and the lack of a protected class for motivated discrimination.

2. In early January I described the process of my termination and outlined the working conditions at the NLC office to my father when visiting my hometown. My father was unsatisfied with the described events and pressed me to contact the HR manager of his organisation for advice. As still within the holiday period, I contacted them a short while after and sought advice for my situation. They immediately indicated an ‘Adverse Action’ or ‘General Protections’ claim was the appropriate path, and expressed sympathy for the circumstances and conditions of my dismissal without warning. I lodged the application soon after.

3. During December and January, I suffered a great deal of stress resulting from my tenure in what I consider a toxic workplace, culminating in my termination. My time at NLC and termination severely impacted my pre-existing and long diagnosed depression. On 18 December 2019, I saw my GP to request a referral to mental health services as I felt my condition was deteriorating. This referral was unfortunately delayed as the free psychiatrist clinic I was referred to has long wait times due to large demand in public systems. I also increased my antidepressant medication in early January as symptoms persisted. I have only recently attended the initial appointment at this clinic on 14 February 2020, and continue to experience impactful symptoms of clinical depression as I await the processing of my request for care.

See ATTACHMENT 1 for a brief confirmation of treatment”

[16] The Attachment was a Doctors Certificate dated 28 February 2020, that stated “This letter is to confirm that Lachlan Ray presented to our clinic on 18 December 2019, and was treated for a mental health issue”. That statement was the totality of the detail and diagnosis outlined in that certificate.

[17] The Respondent noted that on the 17 December 2019, five days after the dismissal, the Applicant contacted by email Mr Kerry Ward, General Manager of Human Resources of the Respondent, seeking an explanation for his termination in detail.

[18] There were in fact numerous emails between the Applicant and Mr Ward that were annexed to the Submissions of both the Applicant and the Respondent. In particular, there were the following emails (with various address redactions for privacy):

From: Lachlan Ray < >

Sent: Friday, 13 December 2019 2:11 PM

To: Kerry Ward < >

Subject: Re: Employment Separation Certificate

Hey Kerry,

Still awaiting that Cert if you could expedite at all.

I’d also appreciate a list of the reasons for my termination for my reference. Particularly as some (now former)

Co workers are asking me why I am gone.

Thanks and regards,

Lachlan

On Mon., 16 Dec. 2019, 10:24 am Kerry Ward, < > wrote:

Morning Lachlan,

I hope you are well. The payroll team will prepare and send your Employment Separation Certificate once

your final pay has been process (likely this Friday 20/12). This final pay will include the 5 days notice period,

as well as a payout of any accrued annual leave.

regards

Kerry

From: Lachlan Ray < >

Sent: Tuesday, 17 December 2019 1:27 PM

To: Kerry Ward < >

Subject: Re: Employment Separation Certificate

Hi Kerry,

No problems there. Thank you for the update.

Still awaiting an explanation for the termination if you could please oblige in detail.

Also, I move at the beginning of January. Would you like my new address to send the innovation certificate to or will it be sent sooner to my current address?

Yours faithfully,

Lachlan

From: Kerry Ward

Sent: Thursday, 19 December 2019 8:03 AM

To: Lachlan Ray < >

Subject: RE: Employment Separation Certificate

Hi Lachlan,

Thanks for your email. I hope you are well.

Yes, it would be a good idea to provide an updated address. This is where your FY20 STP (Payment Summary)

will be sent so it would be good to have the right address on file. I can arrange for an electronic copy of your

Employment Separation Certificate to be emailed to your email address once its prepared to ensure you receive it as soon as possible. I can also arrange for your Innovation Certificate to be mailed to your new address in January 2020.

As discussed in the meeting with Fazil and myself on 12 December, during the probation period we make an

assessment on the suitability of every new employee. This is based on cultural alignment, values alignment as

well as work performance. Overall we did not believe your fit was right with SG Fleet and made the difficult

decision to not confirm your employment. I am happy to set up a time to meet with you to discuss further if you would like. I think it would appropriate to include Fazil, as manager of the area, in any meeting.

Kind regards

Kerry

On Mon., 23 Dec. 2019, 4:00 pm Kerry Ward, < > wrote:

Hi Lachlan,

I hope all is well.

As per the below, I have attached a scanned copy of your Employment Separation Certificate. The original will

be placed in the mail to your address held on file. However, given mail seems to take a while, I thought it may

be helpful for you to have a scanned copy.

Regards

Kerry

From: Lachlan Ray < >

Sent: Monday, 23 December 2019 4:31 PM

To: Kerry Ward < >

Subject: Re: Employment Separation Certificate

Thanks Kerry.

I believe I was somewhat short changed as it looks like my sick leave was retroactively used for the 2/12 and 3/12 where I had already had my pay reduced for that pay cycle using my remaining annual leave and unpaid leave for these two days.

Could you please get payroll to have a look at this for me? From my reckoning I think I’m owed 15 or so hours of sick leave and perhaps shouldn’t have had my annual leave balance of 5 or so hours paid out. No rush of course given xmas period etc.

Kind regards,

Lachlan.

On Mon., 30 Dec. 2019, 2:51 pm Kerry Ward, < > wrote:

Hi Lachlan, I hope you are well.

I have checked out what has happened here. In the pay run of 11 December, you were paid “normal hours” for the 2nd and 3rd of December when you were off sick. So what they have done in the 25 December pay run is simply correctly account for those 2 sick days. They have paid those two sick days to you (+15.20 hours) but have had to reverse the 15.20 hours paid as “normal hours” in the 11 December pay run. So in essence, you have been fully paid for the 2 & 3 December days (as you were on 11 December), its just correctly accounting for the days.

Your final pay also included the one day normal pay for 12 December, plus 38 hours (one week) paid notice period, plus a payout of accrued annual leave (5.66 hours). There is no payout of any accrued sick leave.

I hope that clears that up for you, but please feel free to contact me if you have further questions on this matter.

regards

Kerry

[19] The above emails give a contemporaneous insight into the apparent state of the Applicant at the time they were sent, and the events that may have been occurring. For example, while one of the reasons for delay advanced by the Applicant was the need “to arrange cheaper accommodation causing stress and lost time in seeking alternative employment during a time of holiday festivities/ business shut down”, it is apparent from the email of 1.27pm on 17 December 2019, five days after the dismissal and well within the 21 day limitation period, that the Applicant had sourced such accommodation. Accordingly, he advised “Also, I move at the beginning of January. Would you like my new address to send the innovation certificate to or will it be sent sooner to my current address?”

[20] Similarly, while he had presented at a medical clinic on 18 December 2019 and been treated for a mental health issue, the emails of 17 and 23 December 2019, disclose that the Applicant was more than able to agitate issues that concerned him with the Respondent. It is clear that there was no significant debilitation of the Applicant precluding him from acting promptly.

[21] As noted above, in his Submissions the Applicant readily conceded that ignorance of the required application deadline is not solely an adequate explanation for delay. I do not consider that the Applicant has established any other explanation for the delay, adequate or otherwise. Accordingly, this factor weighs in the Respondent’s favour.

(b) Action taken by the person to dispute the dismissal

[22] The emails referred to above disclose that the Applicant sought reasons for his dismissal on the day following his dismissal, and repeated his request on 17 December 2019. The Respondent provided those reasons on 19 December 2019. Thereafter the Applicant did not pursue issues surrounding his dismissal, but did agitate issues of his pay.

[23] I do not accept that by seeking reasons for his dismissal that the Applicant disputed his dismissal. The Respondent was not put on notice that the dismissal would be disputed, and could certainly not have perceived a challenge would be made in the circumstances where after reasons were provided the issue was not pursued. Accordingly, this is a neutral factor.

(c) Prejudice to the employer

[24] The Respondent did not submit that it would suffer prejudice. This factor accordingly is a neutral factor.

(d) Merits of application

[25] This is a general protections claim. In order to maintain such a claim, the Applicant must show that adverse action took place and that this action took place because of a prohibited reason.

[26] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[27] As these matters are contested, I unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

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

[28] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[29] As is evident from the analysis above, the principal matter that was the subject of submission, consideration and apportionment of any significant weight for the Respondent was acceptable reason for delay, which weighed in the Respondent’s favour. No factors weighed in the Applicant’s favour.

[30] I am persuaded therefore that, in the overall balance, there are not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

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