Lukasz Jadach v Rosscarbery Holdings Pty Ltd T/A Princes Farm

[2018] FWC 5754

[2018] FWC 5754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Lukasz Jadach
v
Rosscarbery Holdings Pty Ltd T/A Princes Farm
(C2018/2751)

COMMISSIONER CIRKOVIC MELBOURNE, 2 OCTOBER 2018

Application to deal with contraventions involving dismissal.

[1] Mr Lukasz Jadach (“the Applicant”) lodged a general protections application (“the application”) with the Fair Work Commission (“the Commission”) pursuant to s.365 of the Fair Work Act (“the Act”). The Respondent to the application is Rosscarbery Holdings Pty Ltd T/A Princes Farm (“the Respondent”).

[2] The Applicant commenced employment with the Respondent on 5 February 2018. He was employed as a truck driver, stable hand and horse breaker. 1

[3] The Applicant contends that his dismissal took effect on 23 April 2018. The Respondent states that the Applicant’s employment was terminated on 19 April 2018 and that the dismissal took effect on that date. In any event, the application was lodged out of time as it was not filed to the Commission until 22 May 2018. The application is therefore either 8 days or 12 days out of time. For reasons discussed later, I accept the Applicant’s submission and evidence that he became aware of the termination on 23 April 2018 and as such the application should have been filed by 14 May 2018 to be within the 21 day limit. Consequently the application was lodged 8 days out of time.

[4] 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.

Alleged contravention

[5] The Applicant submits that he was dismissed because he exercised work place rights. A breach of s.352 of the Act is alleged. 2

[6] The Respondent denies this allegation and submits that the Applicant was dismissed for being involved in a physical fight with another employee.

Legislative scheme

[7] Subsection 366(1) of the Act provides that an application under s.365 of the Act must be made within 21 days after the dismissal took effect:

(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] 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.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 3where the Full Bench said (footnotes omitted):

“[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.”

[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[11] The Full Bench of the Commission affirmed in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 4 that the conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each. Further, the Full Bench clarified that with respect to s.366(2)(a), a credible explanation for the entirety of the delay is not a precondition for the granting of an extension of time. The Full Bench held as follows:

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), 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 disclose exceptional circumstances. 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.”

Background

[12] The matter was listed for a video link hearing on 28 June 2018 and in person on 14 August 2018. The Applicant appeared and gave evidence on his own behalf. Ms Patrycja Jadach, the wife of the Applicant, also gave evidence in support of the Applicant’s case. The Director of the Respondent, Mr Anthony Cummings, appeared on the Respondent’s behalf. Witness statements and evidence for the Respondent were given by Mr Barry Smith, Mr Anthony Cummings, Mr Cameron Farish and Ms Lyn Forwood.

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

[13] 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;

[14] The Applicant relied on a combination of factors during the hearing and in his written submissions to explain the delay as follows:

•  his situation was “unusual”; 5

•  the landlord took action to coerce him to leave their property such as by disconnecting the hose of the washing machine; 6

•  Mr Cummings called the police and tried to have him and his wife evicted from their premises; 7

•  he was fearful that Mr Cummings would intervene so that his applications for rental properties were unsuccessful;

•  and even after successfully finding a rental property, he remained in fear of further repercussions from Mr Cummings. In particular, he stated that he was “still afraid that the freshly-acquired accommodation could be taken away from [him] after some more of actions taken by the respondent. [He] was afraid they might call the tenant or property owners and make some statement which would then change their mind about [their] stay in the property.” 8

[15] Ultimately his fear was “one of the contributing factors to [his] decision about not filing the F8 before [he] felt safe to do so”. 9 This fear was confirmed by the phycologist report tendered into evidence. Further the Applicant justified this fear on the basis that the Respondent had also called the Agnes Banks Equine Clinic telling them that he was someone who “caused trouble.”10

[16] Ms Jadach gave evidence that largely accorded with her filed statement. She attests to attempting to access the laundry and use the washing machine but found that the power had been disconnected. Further she gave evidence that the washing machine would not start even once the power had been reconnected. There was cross examination directed at Ms Jadach as to the date of her attempt and whether her evidence as to the date was consistent. In coming to my conclusion, I have found it unnecessary to resolve this dispute. I accept that Ms Jadach gave an accurate account as to her experience in the laundry and accept her evidence overall to be reliable and credible.

[17] In this matter, I do not accept that the evidence before me supports a finding that Mr Cummings and or representatives of the Respondent engaged in conduct such that the Applicant was precluded from filing his application in time for fear of “retribution’’. In coming to this conclusion, I have accepted the Applicant’s evidence that:

•  he found the washing machine inoperative at some point after his termination;

•  he was residing with his wife at premises owned by the Respondent;

•  Mr Cummings contacted the police for the purpose of effectively ‘evicting’ the Applicant and his wife;

•  and the Applicant reasonably believed that Mr Cummings was attempting to move him from the premises as soon as possible following the termination of his employment.

[18] Given this finding, I do not need to resolve the conflict in the evidence between the Applicant and Mr Cummings as to how much notice the Applicant was given to leave the premises.

[19] Ultimately, I find it improbable that the Applicant, having secured a property on 16 May 2018, waits until the 23 May 2018 to file his application due to “fear” of reprisal from Mr Cummings. The Applicant was willing to concede that the premises were available to him from 16 May 2018 but he chose to stay at another location while the new lodgings were furnished, as demonstrated in the following exchange:

“Commissioner: You signed this document on 16 May 2018, is that correct?  -The form - the condition report, correct.

You moved into the premises - - -?  -Around 22nd, 23rd.

Where were you from - - -?  -(Address supplied), staying with closest people that we had in - - -

Just one moment, please - when did you leave - - -?  -Prince’s Farm?

Yes?  -On 16 May.

Yes, and on 16 May, where did you go?  -(Address supplied).

What is that?  -That is a place where family, the Spice family lives. My wife was working with Anna Spice, a photographer. They became friends and they were the only people we could ask for help. We didn’t know what to do and how to arrange a place to stay and live and move out from Prince’s Farm. They have a garage flat and they let us stay there a few days before we prepared the rented flat so it’s habitable. There was no fridge, there was no bed, there was nothing - just empty rooms.

I see, so you had the flat available to you from 11 May - - -?  -Correct.

- - - 2018?  -That’s right, yes.

But you went to stay with a friend from 16 May because you wanted to - - -?  -There were no living conditions in that flat.

- - - improve the living conditions?  -Well, make it possible - I don’t see how one can live without a fridge or a bed but okay.” 11

[20] On the evidence before me, it is clear that the Applicant had secured premises as of 16 May 2018 and there is nothing before me to suggest that Mr Cummings was either interested or indeed able to exert any influence over that process. On this point, I am persuaded by the Respondent’s submission that the specific location of the Applicant’s new rental was by and large of an unknown nature. I do not accept as probable the Applicant’s submission that Mr Cummings was able to adduce the location of the estate agent and rental of the new premises from his knowledge that the Applicant studied at Richmond TAFE in NSW.

[21] In coming to my conclusion, I have also considered the Applicant’s evidence that Ms Forward, the person responsible for the Respondent’s office administration, made contact with “Heather” regarding the agistment of the Applicants horse at the Agnes Banks Equine Clinic. Ms Forward struck me as a reliable and credible witness who gave a clear and cogent account as to the discussions between her and representatives of Agnes Banks Equine Clinic. I accept the truth and accuracy of the evidence she gave. Given my finding, I do not accept the Applicant’s submission that Ms Forward, on behalf of Mr Cummings, sought to disparage the Applicant’s reputation within the racing industry. Rather, I prefer her evidence that she was performing the functions of her role in making contact with Agnes Banks Equine Clinic and advising them that the Applicant was no longer an employee of the Respondent.

[22] While I sympathise with the Applicant and any employee who suffers from anxiety and distress from losing their employment, the medical evidence supplied does not support a finding that the Applicant was “incapacitated” such that he was unable to lodge an application within time. In coming to this conclusion, I have taken into account the uncontested evidence of Dr Gordon. On balance I find that the Applicant, notwithstanding his medical circumstances, was able to perform functions which included:

•  inspecting at least one rental;

•  signing appropriate rental agreements;

•  and assisting his wife in the process of securing an appropriate rental.

[23] Given the above, the evidence in my view does not support a finding that the Applicant’s medical condition prevented him from lodging his application on time.

[24] Given my conclusion, this criterion weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[25] I accept the Applicant’s evidence that he did not believe he had been dismissed until he received the letter of termination on 23 April 2018. Given my finding that the Applicant was dismissed on 23 April 2018, the Applicant was aware of the dismissal from when it took effect. He had the full 21 days to lodge his application.

[26] This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[27] The Applicant submits that he did not dispute the dismissal. 12

[28] I accept that the Applicant did not take steps to dispute the dismissal. This conclusion weighs against a finding of exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[29] Prejudice to the employer will go against the granting of an extension of time. 13 However, the “mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.”14

[30] The Applicant submits that the employer will not be prejudiced given the delay was only 8 days. Further the Applicant submits that given the same persons involved in his dismissal are still employed at Princess Farm, the employer will not suffer any prejudice. 15

[31] The Respondent did not make a submission that it would be prejudiced by the delay.

[32] In this matter, I consider this criterion to be neutral in the granting of an extension of time.

(e) the merits of the application;

[33] In the matter of Kornicki v Telstra-Network Technology Group 16 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 17

[34] The Applicant submits that he was dismissed for physically defending himself against a colleague whom he alleges physically assaulted him. The Applicant submits that the Respondent’s evidence demonstrates that he “did not punch or kick” the other colleague. 18 The Applicant further submits that he attempted to speak to both the Respondent’s manager and director about him being bullied by his colleague prior to the physical confrontation.19

[35] The Respondent disputes the Applicant’s account and submits that the Applicant’s conduct of fighting with another employee constitutes serious and wilful misconduct. 20

[36] 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.” 21 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[37] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 22 considered this criterion and said at [41]:

“…Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[38] The Applicant submits that persons in other cases before the Commission in similar cases to him have been granted an extension of time. 23 However, the Applicant did not refer to any specific cases in his submissions.

[39] The Respondent raised Kyvalos v Champion Socks Pty Ltd in support of its argument that the strong merits of their case meant that an extension of time should not be granted. 24 Further the Respondent cited Ballarat Truck Centre Pty Ltd v Kerr to demonstrate another case where mental illness was not a basis for the granting of an extension of time.25

[40] I have considered both parties’ submissions but ultimately I find this criterion to be a neutral consideration.

Conclusion

[41] 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 application is dismissed.

[42] An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Mr L Jadach, self-represented.

Mr A Cummings on behalf of the Respondent.

Hearing details:

2018.

Melbourne (via video link):

28 June.

Sydney:

14 August.

Final written submissions:

Applicant’s Closing Written Submissions (date needed)

Respondent’s Closing Written Submissions (13 August 2018).

<PR700343>

 1   Transcript of Proceedings (28 June 2018), PN141.

 2 F8, [3.2].

 3   [2011] FWAFB 975.

 4   [2018] FWCFB 901.

 5   Transcript of Proceedings (28 June 2018), PN72.

 6   Ibid, PN93-97.

 7   Ibid, PN105.

 8   Ibid, PN164.

 9   Ibid, PN174

 10   Ibid, PN196.

 11   Transcript of Proceedings (14 August 2018), PN97-107.

 12   Applicant’s Outline of Argument – Extension of Time, [5].

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

 14   Ibid.

 15   Applicant’s Outline of Argument – Extension of Time, [6].

 16   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 17   Ibid.

 18   Applicant’s Closing Written Submissions, [2].

 19 Ibid [4].

 20   Respondent’s Closing Written Submissions, [2].

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

 22   [2016] FWCFB 6963.

 23   Applicant’s Outline of Argument – Extension of Time, [8].

 24   Respondent’s Closing Written Submissions, [12].

 25 Ibid [14].

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