Leonard Mark Wilkinson v Geoffrey Stewart Constructions Pty Ltd

[2017] FWC 1549

[2017] FWC 1549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Leonard Mark Wilkinson
v
Geoffrey Stewart Constructions Pty Ltd
(C2017/935)

DEPUTY PRESIDENT DEAN SYDNEY, 22 MARCH 2017

Application to deal with contraventions involving dismissal.

[1] On 20 February 2017, Mr Leonard Mark Wilkinson (the Applicant) made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Geoffrey Stewart Constructions Pty Ltd (the Respondent) in contravention of the general protections provisions of the Act. The Respondent denies the allegations, and contends that the Applicant’s employment ended due to resignation.

[2] The Applicant states in his application that he commenced employment with the Respondent in May 2006 and his employment was terminated on or by 25 January 2017. The Applicant’s general protections application lodged on 20 February 2017 was therefore made some 5 days outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).

[3] The matter was listed for hearing by telephone on 17 March 2017 to consider the extension of time issue. At the hearing, the Applicant appeared on his own behalf. Permission was granted for Ms Michelle Snape to appear for the Respondent.

[4] 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.

[5] 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.

[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 (Nulty) 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.”

[7] I now deal with each of the provisions of s.366(2) of the Act.

Reason for the delay

[8] The Applicant submitted that he had been experiencing sleeplessness and stress for the last six months which resulted in him being ill. He submitted that his condition worsened as a result of the dismissal and that he was in a depressed state and could not concentrate on getting any tasks completed. He further submitted that his condition has now improved although he still finds it hard to concentrate or address urgent matters.

[9] In support of the health issue, the Applicant provided two medical certificates, dated 7 November 2016 and 13 December 2016 and a letter from his treating psychologist dated 13 March 2017.

[10] At the hearing the Applicant gave evidence that during the 21 day period following his dismissal, he had to deal with the death of a much loved family pet which significantly exacerbated his depression and inability to concentrate. He also gave evidence about some computer difficulties he was experiencing during this period, which caused delay in completing his application.

[11] The Applicant made contact with the Fair Work Ombudsman (FWO) to query his pay and entitlements. He provided a copy of an email he had received from the FWO which included the following:

“In addition to our telephone conversation I would also recommend you contact the Fair Work Commission in relation to the circumstances surrounding the termination of your employment. There are very strict timeframes applicable to the lodgement of an unfair dismissal claim (21 days from date of dismissal), as such your immediate attention would be required should you wish to proceed with a claim.”

[12] The Applicant indicated that because of his computer difficulties, he did not receive this email at the time it was sent, but he was aware of the 21 day time limit for lodging his application on or around 8 February 2017.

[13] In its written outline of submissions, the Respondent submitted that the reasons for the delay set out in the Applicant’s application do not sufficiently deal with an exceptional circumstance that would allow an extension of time to be granted. The Respondent submitted that the Applicant made reference that he contacted the FWO on 13 December and received forms which highlighted the 21 day requirement on the front page, and therefore cannot claim any ignorance in regard to the procedures. The Respondent contended that being in a depressed state or not being willing to deal with telephone waiting periods or call backs are not sufficiently ‘exceptional’ circumstances to warrant an extension, and that in order for the circumstances to be exceptional they cannot be regular, routine or normally encountered. The Respondent further submitted that the provision of telephone advice, paper copies received by post and access to the online information provided the Applicant with significant information and opportunity to submit a claim on time.

[14] In considering whether the reason for the delay amounting to exceptional circumstances, I must be satisfied that there is a credible reason for the whole period of the delay 2. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application3. The 21 day period in this matter ended on 15 February 2017.

[15] I accept the Applicant’s evidence that he had been aggrieved following the cessation of his employment. However, stress, shock and confusion are not uncommon reactions or responses to other persons after being dismissed. Such responses are not exceptional and do not provide an acceptable reason that would explain the whole period of the delay.

[16] On the material before me, I am not satisfied that the Applicant has provided sufficient evidence to support the contention that his health was impacted to such an extent that he was incapacitated to an extent that he was unable to file the application until 20 February 2017.

[17] In addition, the email provided by the Applicant from the FWO made it clear that he was aware of this timeframe.

[18] For the above reasons, I am not satisfied that the explanation of delay adduced by the Applicant constitutes an exceptional circumstance.

Any action taken by the person to dispute the dismissal

[19] The Applicant gave evidence that he had contacted the FWO to discuss his situation and was given information to lodge an unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

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

[20] I am not persuaded that the Respondent would suffer prejudice if the extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of 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.’ 4

[22] The parties were in dispute as to the circumstances leading to the cessation of the Applicant’s employment and whether he was dismissed by the Respondent or whether he resigned from his employment. I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[23] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5 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.’6

[24] There was no evidence that there were any persons in a similar position and I find it to be a neutral consideration.

Conclusion

[25] 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. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[26] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

L Wilkinson on his own behalf.

M Snape for the Respondent.

Hearing details:

2017.

Sydney (by telephone):

March 17.

 1   [2011] FWAFB 975.

 2   [2010] FWAFB 7251.

 3   [2015] FWCFB 287.

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 5   [2015] FWC 8885.

 6 Ibid at [29].

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