Leslie Creighton v Moscou Holdings Pty Ltd ATF the Penguin Trust T/A Penguin International

[2015] FWC 5791

[2015] FWC 5791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Leslie Creighton
v
Moscou Holdings Pty Ltd ATF The Penguin Trust T/A Penguin International
(C2015/683)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 21 AUGUST 2015

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Leslie Creighton (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 1 April 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Moscou Holdings Pty Ltd as Trustee for the Penguin Trust T/A Penguin International (Penguin International - the Respondent) on 16 January 2015 in contravention of the general protections provisions of the Act. As the application had been lodged 54 days outside the statutory timeframe for lodgement, the Commission issued Directions on 7 April 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The Directions issued invited both parties to indicate if they wished to be heard on the extension of time issue and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the Directions. Neither party requested to be heard.

[3] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[4] According to the Respondent’s website it provides:

“Specialist Design & Construct for:

• Multi-Level Unitized facades



• Frameless shopfront/ podium glazing



• Curtain- wall



• Canopies



• Frameless Balustrade” 1.

[5] Mr Creighton commenced employment with the Respondent on 20 October 2014 as a Site Supervisor. Mr Creighton’s employment was subject to a three month probationary period which expired on 20 January 2015.

[6] Mr Creighton took a period of annual leave from 10 November to 9 December 2014. Following his return to work Mr Creighton raised some concerns regarding the way one of his colleagues managed the project on which he was working in his absence. In response to those concerns, the Respondent proposed Mr Creighton move to another site. Mr Creighton agreed to that proposal.

[7] In subsequent developments, on 16 January 2015 Mr Creighton and Mr Mark Moscou, the Respondent’s Director, had a disagreement over whether sunshade panels, from the project which Mr Creighton was originally supervising, should be transported from the site to the factory by truck or on Mr Creighton’s company utility. Mr Creighton maintained that it was unsafe for the materials to be transported on his company utility. Ultimately, Mr Creighton complied with Mr Moscou’s instruction to use the company utility. In loading the panels onto the company utility, Mr Creighton contends that he injured his back.

[8] That afternoon, Mr Moscou had a production meeting with a client, PACT, regarding the project which Mr Creighton had previously been working on. During that meeting, PACT complained that progress on the project was slow and advised that it had previously been told by Mr Creighton that the Respondent’s staff were on a go slow because the Respondent had not been paid by PACT. Mr Moscou denied that this was the case.

[9] Mr Moscou emerged from that meeting and asked Ms Desiree Geldart, the Respondent’s Administration Manager and Personal Assistant, to contact Mr Creighton and advise him that his contract was being terminated as the relationship was not working. Ms Geldart contacted Mr Creighton at about 3.45 pm on 16 January 2015 and advised him that his employment had been terminated.

[10] Mr Creighton sent an email to Ms Geldart on 21 January 2015 which read:

“Hi Desiree,

Further and following on from your phone call of Friday evening 3.45 pm 16^th January 2015.

Im not sure why Mark has reached a decision to end my employment, is it because a reported a back injury to Mark Mitchell, or because i complained about the incorrect and unsafe procedures that was instructed to me, to bring back the sunshade panels to the factory…

Further to Penguins termination notice, you will need to furnish me a Termination of Employment notice in writing, setting out and stating reasons for the termination, as defined by Fairwork Australia and in line with our mutual contract agreement…” 2

[11] Ms Geldart responded to Mr Creighton’s email that afternoon in the following terms:

“… Mark felt that the relationship between penguin and yourself was not working and this may also possibly have been aggravated by your morning meeting with him. So when he met with pact in the afternoon and was told that you had said Penguin was on a go-slow Mark thought it best we end the relationship.

I will put this in writing.

Your termination has nothing to do with your back injury. Mark Moscou has not been advised of this yet as we will need the paperwork first to get it all done before we present it to him…” 3

[12] A termination letter was forwarded to Mr Creighton on 27 January 2015. The letter stated “The company has decided to terminate your employment with effect from 16 January 2015 giving you one week notice… Your last date of employment will be 16 January 2015.” 4

[13] As previously noted, Mr Creighton’s general protections application was received by the Commission on 1 April 2015.

The Relevant Legislation

[14] 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.”

Whether to allow a further period for the application to be made

[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] In his application Mr Creighton alleged that the Respondent had protracted his termination as his entitlements were not paid until 10 March 2015 and that he was not afforded a disciplinary hearing. Mr Creighton expressed the view that the Respondent had prolonged the termination process in order to prevent him from lodging an application within the statutory timeframe.

[17] Mr Creighton reiterated these reasons in his written submissions. Specifically, Mr Creighton submitted that the Respondent did not address his termination notice fully until 6 March 2015, seven weeks after his termination. Mr Creighton also pointed out that on 21 January 2015 he had requested a formal meeting with the Respondent to discuss the reasons for his termination and that his letter of termination did not set out the reasons for his dismissal.

[18] The Respondent submitted that there were no exceptional circumstances of which it was aware in regard to Mr Creighton’s termination. Further, the Respondent highlighted that it was advised on 27 January 2015 by Mr Creighton that “a complaint would be lodged with Fairwork” regarding his dismissal but that the claim was only lodged on 1 April 2015.

[19] Nowhere in his application or submissions does Mr Creighton indicate why he could not have lodged his general protections application in circumstances where he continued to seek to clarify the reasons for his dismissal. As can be seen from the email exchange between Mr Creighton and Ms Geldart on 21 January 2015 (see paragraphs [10] and [11] above), Ms Geldart did reiterate, albeit briefly, the reasons for Mr Creighton’s dismissal in her email of that date.

[20] Among the documents attached to the Respondent’s Form F8A response was an email dated 27 January 2015 from Mr Creighton to Ms Geldart and Mr Keiran Hill, the Respondent’s Accountant, which stated among other things “Please be advised that I am lodging a complaint with Fairwork Australia for Unfair Dismissal” 5 [underlining added]. This was followed by a further email on 28 January 2015 from Mr Creighton to Ms Geldart which states “The termination [sic letter] does not include any reasons or explanations for my termination , I have lodged a formal complaint with Fairwork Australia regarding the issue is ongoing ,who will be in touch in due course…”6 [underlining added]. What is clear from these emails is that by late January 2015 Mr Creighton had contacted the Commission regarding his dismissal. In those circumstances, it is unclear why Mr Creighton did not file his general protections application within the statutory timeframe.

[21] Taken together, the reasons for the delay cited by Mr Creighton fall well short of establishing that there were exceptional circumstances in this case.

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

[22] In his application Mr Creighton submitted that he repeatedly requested a disciplinary hearing to discuss his dismissal but that such a meeting was not afforded him.

[23] The Respondent submitted that Mr Creighton requested a meeting to refute the false claims surrounding termination but that the meeting was not set up due to the list of items not been closed out as stated in Mr Creighton’s email of 21 January 2015.

[24] An examination of the material before the Commission indicates that on 21 January 2015 Mr Creighton emailed Ms Geldart requesting that he be provided with a termination of employment notice setting out the reasons for his dismissal (see paragraph [10] above). That examination further indicates that on 27 January 2015 Mr Creighton informed the Respondent that he considered his termination to be unlawful and that he would be referring it to “Fairwork Australia.” In other words, the material before the Commission indicates that Mr Creighton not only disputed his dismissal but that well within the 21 day timeframe for making a general protections application he also foreshadowed an application to the Commission.

[25] This analysis does not support a finding that there were exceptional circumstances in this case.

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

[26] As neither party addressed this issue, I consider the issue of prejudice to be a neutral consideration.

(d) The merits of the application

[27] Mr Creighton contends that the Respondent dismissed him as a consequence of his complaint about unsafe practices in the workplace and the injury he sustained when loading the sunshade panels onto his company utility. Mr Creighton submits in his application that he was subjected to bullying after he had reported the unsafe work practices and his injury. Mr Creighton also contends in his application that his dismissal was in contravention of s.340 and s.344 of the Act which respectively deal with adverse action taken against a person because the person has exercised a workplace right and a person exerting undue influence or pressure on an employee.

[28] The Respondent disputed that Mr Creighton was dismissed for raising concerns about the alleged unsafe work practices and reporting his injury. The Respondent submitted that Mr Creighton had been dismissed as the employment relationship was not working out and not as a result of false claims.

[29] An analysis of the material before the Commission indicates that a number of key issues in this matter are disputed. The material also suggests that the working relationship between Mr Creighton and the Respondent was not without its difficulties. Against that background, I cannot conclude that the application is without merit.

[30] As such, I consider that the merits of the application give some limited weight to the existence of exceptional circumstances.

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

[31] Again, neither party addressed this factor. In the absence of submissions going directly to this factor, I consider it to be a neutral consideration.

Conclusion

[32] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 7 (Nulty) in the following way:

“[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.”

[33] Having considered all of the factors set out in s.366(2) and drawing on Nulty, 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).

[34] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1     Form F8A - Employer Response to General Protections Application at Attachment 14

 3   Ibid

 4   Ibid at Attachment 17

 5   Ibid at Attachment 19

 6   Ibid at Attachment 20

 7   [2011] FWAFB 975

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