Lauraine Godwin

[2016] FWC 8003

[2016] FWC 8003

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Lauraine Godwin
(C2016/5161)

Surinder Sidhu
(C2016/5162)

v
Hattah Roadhouse Vic Pty Ltd T/A Hattah Roadhouse

DEPUTY PRESIDENT LAWRENCE SYDNEY, 7 NOVEMBER 2016

Applications to deal with contraventions involving dismissal.

[1] On 29 August 2016 Surinder Sidhu (Mr Sidhu) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that Mr Sidhu had been dismissed by Hattah Roadhouse Vic Pty Ltd T/A Hattah Roadhouse (the Respondent).

[2] Mr Sidhu commenced employment with the Respondent on 23 April 2016. He was employed to perform kitchen and other roadhouse duties at the Respondent’s roadhouse which is about one hour from Mildura. He says that he was dismissed on 15 June 2016 and the dismissal took effect on that day.

[3] The application was lodged 54 days out of time.

[4] The same application was lodged by Ms Louraine Godwin (Ms Godwin) on the same date. The circumstances of Ms Godwin’s employment and alleged dismissal were the same as Mr Sidhu. This application was also, of course, lodged 54 days out of time. These two applications were dealt with together by the Fair Work Commission (the Commission).

Alleged Contravention

[5] Mr Sidhu and Ms Godwin alleged that they were forced to resign because they were treated as independent contractors. A proposal to reduce their pay prompted contact with the Australian Tax Office which advised that they should be treated as employees. They made a range of representations about their pay and working conditions which were rejected. They therefore sent a letter on 15 June resigning.

[6] The applications specify a breach of s.358 of the Act. However, the allegations are really that s.340 has been breached. Mr Sidhu and Ms Godwin complained about under-payment and their employment status. It appears that the relevant award should have been the Vehicle Manufacturing, Repair, Services and Retail Award 2010 [MA000089]. There is also an alleged breach of s.357 in that the Respondent is said to have treated them as independent contractors when they were really employees.

Respondent’s Submissions

[7] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[8] The Respondent did not lodge an F8 response. However, based on its written and oral submission, the Respondent asserts that Mr Sidhu and Ms Godwin resigned of their own free will. They further submit that they were about to convert their payment arrangement to that of employees.

Relevant Legislation

[9] Section 366 of the Act provides:

366 Time for application

366(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).

366(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.”

Approach of the Commission

[10] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[11] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[12] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 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. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Commission Proceedings

[13] On 8 September 2016, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 29 September 2016.

[14] Mr Sidhu and Ms Godwin represented themselves. The Respondent was represented by Ms Ariel Curtis of Employsure Pty Ltd together with Mr D. Pitt and Ms E. Pitt. Ms Curtis was granted permission to appear pursuant to s.596 of the Act.

Matters to be taken into account pursuant to s.366(2)

[15] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[16] The main reasons relied on to justify the delay were the medical conditions of Mr Sidhu and Ms Godwin, the fact that they were evicted from their accommodation attached to the roadhouse once they resigned and their ignorance of the legal avenues open to them. They did approach the Fair Work Ombudsman about their alleged under payment without, it would appear, any result.

[17] There is limited medical evidence provided, apart from the statements of Mr Sidhu and Ms Godwin. I am unable to conclude that their medical conditions prevented them from filing during the two months or so since their resignations. They travelled to Perth during this time. There is no doubt that their living conditions were difficult but it was possible for them to lodge an application to the Commission. It appears likely that their approach to and question of the Fair Work Ombudsman related to their underpayment of wages claim.

[18] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[19] Mr Sidhu and Ms Godwin did approach the Fair Work Ombudsman but there is no evidence that there was any discussion about the alleged dismissals.

[20] I do not think that this is a matter of significance in the circumstances of this case.

(c) Prejudice to the employer (including prejudice caused by the delay)

[21] This is a matter which is neutral in this case.

(d) Merits of the application

[22] I do not doubt that there are issues with respect to Mr Sidhu and Ms Godwin’s employment status and non-application of award wages and conditions. However, they resigned their “employment” and this is a hurdle for them to get over.

[23] In the circumstances, I have treated the merits of the application as a neutral factor.

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

[24] This factor was not addressed and has not been taken into account.

Conclusion and Order

[25] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the applications are dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the applications made by Surinder Sidhu and Lauraine Godwin under s.365 of the Act are dismissed.

DEPUTY PRESIDENT

Appearances:

L. Godwin and S. Sidhu, Applicants;

A. Curtis for the Respondent.

Hearing details:

2016

September 29 (telephone hearing).

Printed by authority of the Commonwealth Government Printer

<Price code A, PR587272>