Lucas Russell v Champion Pictures Group T/A Lido Cinema

[2017] FWC 3457

[2017] FWC 3457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Lucas Russell
v
Champion Pictures Group T/A Lido Cinema
(C2017/2749)

COMMISSIONER LEE MELBOURNE, 14 JULY 2017

Application to deal with contraventions involving dismissal – extension of time – application dismissed.

Introduction

[1] Mr Lucas Russell (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. The Respondent to the application is Champion Pictures Group T/A Lido Cinema (the Respondent). The application concerns an allegation of adverse action having been taken by the Respondent, namely the dismissal of the Applicant on 27 April 2017, in contravention of the general protections set out in Part 3-1 of the Act. The application was lodged with the Commission on 23 May 2017. It is not in dispute that the termination of employment took effect on 27 April 2017. Therefore the application should have been lodged on or before 18 May 2017. The application was made on 23 May 2017, 5 days late. As the application is made outside the prescribed period in s.366(1) of the Act, the Commission may allow a further period for the application to be made if satisfied that there are exceptional circumstances in accordance with s.366(2) of the Act.

[2] The matter was listed for Objections Conference/Hearing by Telephone before me on 19 June 2017. The Applicant appeared on his own behalf with his parents, Mr Martin Russell and Dr Helen Russell. Mr Richard Scougall was granted permission to appear for the Respondent as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

Background

[3] The Applicant commenced employment with the Respondent on 30 October 2015. The Respondent operates a number of movie theatres. The Applicant was employed on a casual basis at one of the theatres. On 13 February 2017 at 7:35 pm Ms Anne Marie Varrasso, Operations Manager with the Respondent, emailed the Applicant directing him to not attend work pending an investigation into an allegation that had been made by a fellow employee against him. The allegation was that the Applicant had made an offensive comment to the other employee. The email set out that the Applicant would be “…paid your usual remuneration for shifts you have been currently rostered to work during this period…” 1

[4] The Applicant made clear in an email to the Respondent, sent in response to being notified of the investigation, that he was completely unaware of what the issue was and that the email from the Respondent had caused him great angst and he was very upset. 2

[5] There was a workplace investigation into the Applicant’s alleged conduct and a number of meetings took place to discuss the outcome. According to the minutes of the meeting held on 4 April 2017 the investigation was finalised on the basis that while there was a “reasonable suspicion” that the allegation against the Applicant was true, the allegation was not substantiated and no disciplinary action would be taken. 3

[6] The Respondent submits that at the conclusion of the meeting on 4 April, a representative of the Respondent, Mr Avery, noted that the Applicant had expressed concerns during the discussion about management and other employees at the Lido site and therefore queried whether the Applicant would consider employment at another of the Respondent’s cinemas. The Applicant responded that he would consider that and come back to the Respondent.

[7] The Applicant then forwarded to Ms Varrasso a “proposal” dated 10 April 2017 which appeared to be written by the Applicant’s parents on the Applicant’s behalf. The proposal included a note in its preamble that it was to “…assist Lucas return to a safe and healthy workplace environment with confidence and reassurance”. 4 The proposal details a number of requests and demands including: letters of apology from the Respondent and the “females in question” to be sent to the Applicant; an agreement for the Applicant to relocate to another cinema with his travelling expenses to be at the employers expense; warning letters to be sent to the “females” based on allegations the Applicant had made against them; the Applicant’s manager to have no “contact or involvement” with him; claims for lost wages during the investigation period, reimbursement of medical bills and for the Respondent to arrange a plan of psychological consultations for the Applicant.

[8] The Applicant submits that Ms Varrasso ignored his requests to meet to discuss the proposal and she sent a letter to him on 13 April 2017 rejecting the substantive claims in the proposal. The 13 April letter from Ms Varrasso reiterated the offer to “unconditionally” relocate the Applicant to another cinema within the group or alternately have him return to work at his original place of employment. To facilitate his return to work, the letter states that bullying and harassment training would be given to all staff and that the complainants in the original matter under investigation would be reminded of their obligations in the employee manual such as to engage with other employees fairly and with respect. The letter directed the Applicant to advise his willingness to return to work on the basis outlined by 19 April 2017.

[9] Further correspondence was exchanged between the parties regarding the Applicant’s return to work and his proposal. On 18 April Ms Varrasso reiterated in an email that she wanted the Applicant to confirm if he still wanted to be employed at the cinema and set out the basis for his return, consistent with the letter of 13 April. The Respondent requested a response by 5:00pm the next day. The Applicant replied to this letter the next day saying he was eager to get back to work but claimed the Respondent was disrespectful to him, was bullying and threatening him and again requested the Respondent go through the proposal and indicate what they did not agree with. 5 The Applicant also sent a letter dated 27 April which among other things stated the Applicant refuted the Respondent’s letters dated 13 April and 20 April and that he would attend work when Ms Varrosso agreed to sit down and discuss the issues and concerns in his proposal. The letter also proposed other options as a basis for returning to work, in addition to the proposal.6 The Respondent replied to the Applicant’s final letter on 27 April and dismissed him from his employment. The text of that letter was as follows, omitting formal parts:

“I refer to previous correspondence, most recently my letter to you dated 19 April 2017 and your responses on 21 and 27 April 2017.

As you know, the workplace investigation into your conduct was finalised in the basis that the allegation against you was not substantiated. Notwithstanding this, and despite repeated assurances by me that appropriate steps would be taken to ensure that you could safely return to the workplace, you have refused to meet me to discuss your return, when directed to do so. You have also refused to return to work, except on the basis that we agree to your “proposal”, which is not reasonable and has been rejected by us, as explained to you previously.

In light of your repeated refusals to abide by lawful and reasonable directions by your employer and your clear statements to the effect that you no longer intend to perform any work (unless all of your unreasonable conditions are met), there is no basis to continue our employment relationship.

You are hereby notified of the immediate termination of your employment with Lido Cinema. As you are a casual employee, we are not required to give you any notice of termination or payment in lieu of notice.” 7

[10] The Applicant disagrees with the contents of the letter of termination. 8 However, there is no dispute that the Applicant was dismissed from his employment with the Respondent on 27 April 2017. As the application is made outside the prescribed period in the Act the matter to be determined is whether there are exceptional circumstances that would warrant the exercise of my discretion to allow a further period within which the application under s.365 of the Act may be made.

The alleged contraventions

[11] It is not in contest that the Applicant was dismissed by the Respondent on 27 April 2017. The Applicant in his Form F8 - General protections application involving dismissal (Form F8) asserted that the adverse action included the dismissal; injuring an employee in their employment; altering the position of the employee to their detriment and discriminating between one employee and other employees. The Applicant claims that the Respondent breached s.340 Workplace Rights, s.344 Undue influence or pressure and s.351 Discrimination, described as discrimination based on gender. There is considerable detail to the Applicant’s allegations of contraventions contained in Appendix A to the Form F8 which I will not set out in detail. The focus of the allegations is a concern that Ms Varrasso has discriminated against the Applicant as a male and employees who are female. This includes allegations that the Respondent did not investigate complaints by him about a group of females in the workplace, providing support for the females and not him, favouring females in rostering and preferring females’ version of events. The alleged contraventions largely revolve around the disputed investigation the circumstances of which are set out above.

[12] The Respondent in their submissions refers to the Applicant’s allegations in the Form F8 and attachments and note that they are lengthy. The Respondent notes that in summary, the allegation is that the Respondent discriminated against the Applicant because of his gender. The Respondent denies that it discriminated against the Applicant regarding this attribute or at all.

Evidence

[13] The Applicant’s reasons for the delay in filing the application fall into two main categories. The first is that the Respondent did not provide the Applicant with a copy of his employment contract which the Applicant states “was required by the FWC to be attached to my application”. 9 The second is that the Applicant was too unwell to lodge his application.

[14] In respect to the first reason the Applicant gave evidence that he contacted the Commission by telephone on 27 April 2017, the day he was dismissed by the Respondent, to assist him with the relevant forms and documents for his application. Based on this interaction, the Applicant says he believed that he was required to include a copy of his employment contract with his application. 10 The Applicant emailed the Respondent two weeks after his conversation with the staff member of the Commission on 11 May 2017 with the request “Can you please provide me with my employment contract for my records?”11 There was no reply to that email or any follow up by the Applicant requesting the employment contract.

[15] In respect to the second reason, the Applicant’s evidence is that he attended the doctor on 11 May as he was feeling unwell largely due to the great impact this issue had on him. He also attended the doctor on 25 May. His evidence is that he was too unwell to personally drop off his application to the Commission and that both of his parents were overseas at the time. 12 At the hearing the Applicant gave evidence that he could not drive for a short period of time so he could not hand deliver his application and that he missed some University classes and had a “couple of blood tests”.13

[16] The Applicant’s Mother, Dr Russell gave evidence at the hearing that the Applicant was suffering from anxiety and stress and that the Applicant was “bedridden for days” although there was no specificity as to how many or which days he was bedridden. She claimed that she could see his health was deteriorating and that he was not “leaving his home”. 14

[17] Dr Russell also gave evidence that both she and her husband were overseas from 12 May until 20 May.

[18] On cross-examination, Dr Russell confirmed that she was not a medical doctor but has a PHD in Philosophy and is an expert in management, talent management and organisation behaviour. Dr Russell was asked if she took any steps to ensure the Applicant lodged his application before they went overseas. Her evidence was as follows:

“Yes?---In terms of lodging the application?

Yes?---Yes, yes, yes, I did.  Lucas - I kept on asking Lucas whether he had received the employment contract because Fair Work said it was a necessity.  He needed all of his applications - sorry, all his documents needed to be together with the application and he said to me that he was still waiting for the employment contract.

When did you tell him that or when did you ask him that?---Well, it would have been that week.  It would have been the 11th, 12th, that's when he - yes, it would have been around the 11th.  So, the day he sent the email to you, to Anne-Marie Varrasso and Benji requesting for his employment contract, we would have thought you would have sent - they would have sent it soon after.  But it did not happen and then on the following day I asked Lucas:  "Is it in?"  "No."  And then we thought, okay, well, give them maybe a week or so and we'll see what happens and if they don't send it, we'll just put it together and hand it into the Commission as it is and let the Commission know that they weren't responsive in sending your employment contract and then it can go without the application.  And I did let the Commission know when I dropped it off that Anne-Marie Varrasso and Benji did not acknowledge Lucas's email or send him an employment contract when he requested it.

When did you tell - when did you suggest to your son that he should lodge his application regardless of the fact that he hadn't received his employment contract?  Was that before you went overseas?---No.

So you were in communication with him while you were overseas?---Every so often because I was in conferences.

Did you discuss it?  Did you discuss that aspect of his application with him while you were overseas?---Did I discuss his application?

Did you discuss that aspect of his application with him?---Yes, I did.  Yes, I did and he said he could not drop it off because he was too unwell and then I - - -

Thank you.  I don't have any other questions, Commissioner.” 15

The law to be applied

[19] Section 366(1) of the Act provides as follows:

“(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).”

[20] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors

“(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.”

Consideration

[21] I have considered the evidence and submissions, including the written submissions that were filed and the oral submissions made during the hearing against the criteria in section 366 of the Act.

[22] Subsection 366(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd¹⁶, where the Full Bench stated that:

“[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.

...

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[23] I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

Matters to be taken into account pursuant to section 366(2)

[24] 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

[25] The Applicant’s evidence is that he was told by the Commission on 27 April 2017 that he was required to provide a copy of his employment contract with his application. He was also told to visit the Fair Work Commission website. 17 It is a fact that there is no requirement to attach a copy of an employment contract to an application to make it a valid application. It is quite possible and in light of the Applicants’ evidence I accept that he was told to attach relevant documents, including an employment contract. However, even on the Applicant’s own evidence he was not told that he could not lodge an application without an employment contract or that an application without an employment contract attached would not be a valid one.

[26] Despite erroneously forming the view that it was mandatory to obtain a copy of his employment contract before an application could be filed, the Applicant made no effort to obtain a contract from the Respondent until 11 May which was two weeks after the conversation with the Commission. It was on or around 11 May that his Mother, Dr Russell asked him whether he had received the employment contract. Dr Russell gave evidence that her son said he was still waiting for the employment contract. 18 The Applicant made no effort to follow up the request for the employment contract, despite his evidence that he considered it necessary to lodge the application.

[27] It is apparent from the evidence of Dr Russell that she formed the view that it would be possible to hand in the application without the employment contract on 12 May but decided that she would wait until a “week or so” passed and if the employment contract was not then sent then the application would be lodged without it. 19 As to when Dr Russell told her son that he should lodge his application regardless of the fact that he had not received his employment contract, Dr Russell claimed that, despite apparently forming the view that this could be done on or around 12 May that she did not make that suggestion to her son before she went overseas. While she was evasive when questioned, she did concede that she discussed that aspect of the application while she was overseas.20

[28] Overall, the evidence is that the Applicant was told he “should” include an employment contract. I only have the Applicant’s evidence on this point. Therefore I accept the Applicant’s evidence. However, the Applicant was not told the application would not be accepted and neither is it logical to accept that an individual could not lodge an application if an employer withheld a particular document. Indeed, in many employment relationships there is no written contract. However, accepting that the Applicant believed that he needed the employment contract, he could have contacted the Respondent much earlier than two weeks after the conversation with the Commission and he could have followed up with the Respondent. Furthermore, the Applicant could have contacted the Commission and asked them what to do in such a circumstance.

[29] In any case, the Applicant’s Mother gave evidence that she formed the view, at least by 12 May, that the application could be lodged without the employment contract. Despite this the application was still not lodged until after the statutory time frame.

[30] The Applicant also submits he was too “unwell” to lodge his application. He submitted a letter from his Doctor which simply states: “I confirm this man attended medical consultations on May 11 and May 25, 2017”. The Applicant said that his medical condition prevented him from lodging the application. His evidence was that he was unable to drive and too unwell to personally drop off the application and his parents were away from 12 May until 20 May and could not assist him. The Applicant’s mother gave evidence that he was “bedridden”. However, the Applicant did not say he was bedridden. Moreover, the Applicant’s parents were overseas from 12 May to 20 May and Dr Russell claims that when they returned he was “bedridden” and “unable to take himself out of the house”. 21 I am not satisfied that the Applicant was in fact bedridden as Dr Russell claims. Dr Russell was rather evasive when questioned and was prone to exaggerate the symptoms of the Applicant beyond those the Applicant was attesting to himself.

[31] Having considered all of the evidence, I am not satisfied the Applicant was unfit to lodge the application. The Applicant was capable of sending an email to the Respondent on the same day he attended a medical consultation. He could not drive but he could have caught transport. He could have lodged online or mailed the application, he did not have to personally attend the Commission.

[32] Overall, I am not satisfied there is an acceptable reason for the delay. This weighs against a finding that there are exceptional circumstances.

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

[33] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 22 It is common ground that the Applicant did not take any steps to dispute his dismissal after the date on which it took effect. The Applicant submits that this was because the employer was extremely difficult and the actions and behaviour of management made him lose all confidence and trust to argue against his dismissal.23 The Applicant did email the Respondent to request a copy of his employment contract however he did not dispute his dismissal in this correspondence.

[34] This factor is neutral in considering whether to exercise the discretion to allow a further period for the Applicant lodge his application.

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

[35] The Respondent submits that no particular prejudice, aside from the general failings of memories arise in this matter. However, it is submitted that given the time limits imposed by the Act this weighs against a finding of exceptional circumstances. 24

[36] While I note the Respondent’s submission I am satisfied that the Respondent will not suffer any significant prejudice. The absence of prejudice is itself an insufficient basis for granting an extension of time, and in the circumstances of this case, I regard this factor as neutral.

(d) Merits of the application

[37] The Respondent submits that the merits of the application are extremely weak. The Respondent submits that the exchange between the parties that led to the Applicant’s dismissal is in writing and does not contain anything discriminatory against the Applicant based on his gender. Further, that the reasons for the Applicant’s dismissal as set out in the letter of termination dated 27 April 2017 do contain anything discriminatory against the Applicant based on his gender. 25

[38] For the purposes of determining an extension of time application the Commission should not embark on a detailed consideration of the substantive application. 26 Overall, I agree with the Respondent that the merits of the case are, on the material before me, weak. The Applicant has placed a number of demands on the employer via the proposal that were likely to be unworkable (for example, the requirement that Ms Varrasso have no contact or involvement with the Applicant). It is apparent from the letter dismissing the Applicant that the demands in the proposal combined with the Applicant’s refusal to return to work or meet to discuss his return to work led to the conclusion by the Respondent that the employment relationship could not continue. In the circumstances this outcome seems unremarkable. However, I have insufficient material to determine that the application would have no reasonable prospects of success. In the circumstances, there is insufficient material to consider the merits of the application as other than a neutral consideration.

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

[39] The Respondent submits that this element does not arise on the facts as no other parties exist and as such is a neutral factor.

[40] The consideration of this factor may relate to fairness in matters of a similar kind that are either currently before the Commission or have been decided in the past.  27 There were no submissions that there is, or has been, any persons in a similar position to the Applicant. Accordingly, I regard this factor as neutral.

Conclusion

[41] I am not satisfied that there is an acceptable reason for the delay which weighs against a finding of exceptional circumstances. All other factors are neutral considerations. Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances that would warrant granting an extension of time. Accordingly, the application is dismissed.

[42] An order will be issued concurrently with this decision.

COMMISSIONER

Appearances:

L Russell on his own behalf for the Applicant

R Scougll for the Respondent

Hearing details:

2017.

Melbourne (Telephone Hearing):

19 June.

Final written submissions:

16 June 2017

 1   Exhibit A1, Applicant’s Outline of argument: Extension of Time at Q1h.13

 2   Form F8 – General protections application involving dismissal, Appendix C

 3   Form F8 – General protections application involving dismissal, Appendix D and Respondent’s Outline of argument: Extension of Time at Q1h

 4   Form F8 – General protections application involving dismissal, Appendix F

 5   Form F8 – General protections application involving dismissal, Appendix C

 6   Form F8 – General protections application involving dismissal, Appendix G

 7   Form F8 – General protections application involving dismissal, Appendix H

 8   Exhibit A1, Applicant’s Outline of argument: Extension of Time at Q1h.20.5

 9   Exhibit A1, Applicant’s Outline of argument: Extension of Time at Q1d

 10   Exhibit A1, Applicant’s Outline of argument: Extension of Time at Q1d and PN 67, PN188

 11   Form F8 – General protections application involving dismissal, Attachment titled ‘requesting my employment contract from employer’

 12   Exhibit A1, Applicant’s Outline of argument: Extension of Time at Q1d

 13   PN68

 14   PN139

 15   PN172 – PN179

16 [2011] FWAFB 975

 17   PN188

 18   PN173

 19   PN174

 20   PN178

 21   PN150

 22   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

 23   Exhibit A1, Applicant’s Outline of argument: Extension of Time at Q1e

 24   Outline of Submissions of the Respondent dated 16 June 2017, [17]

 25   Outline of Submissions of the Respondent dated 16 June 2017, [18]

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

 27   Markos Wilson v Woolworths[2010] FWA 2480 [24] – [29]

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