Luke Fry v Karingal St Laurence Limited T/A genU Karingal St Laurence

[2019] FWC 2259

[2019] FWC 2259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Luke Fry
v
Karingal St Laurence Limited T/A genU Karingal St Laurence
(C2019/80)

DEPUTY PRESIDENT BOYCE SYDNEY, 4 APRIL 2019

Application to deal with contraventions involving dismissal – application filed out of time - not a strong case on merits (liability or damages) – applicant not aware of 21 day time limit –no exceptional circumstances – extension of time refused.

Overview

[1] On 3 January 2019, Mr Luke Fry (“Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth)(“the Act”). The Applicant claims that his employment with Karingal St Laurence Limited t/a genU Karingal St Laurence (“the Respondent”) was terminated by the Respondent on 6 December 2019 in contravention of Part 3-1 of the Act (“the Application”).

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Fair Work Commission (Commission) may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.2

[3] The Applicant acknowledges that he lodged his Application 6 days outside of the statutory time limit. To be within time, the Applicant should have lodged his Application on or before 28 December 2018. The Applicant lodged his Application on 3 January 2019. 3

[4] On 20 March 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge his Application. At this hearing, the Applicant represented himself, and the Respondent was represented (with permission) by Mr David Catanese, Solicitor, of the Victorian Government Solicitor’s Office.

[5] I have determined that the application should be dismissed. These are the reasons for that decision.

Permission to appear

[6] Permission was granted to Mr Catanese to represent the Respondent at the hearing of this matter pursuant to s.596 of the Act.

[7] The Applicant’s only submission in respect of s.596 was that he had sought but not obtained legal aid to represent him. In effect, the Applicant stated that he would like to be legally represented at the hearing, but was unable to avail himself of such legal representation on a no-fee basis.

[8] The Respondent does not have a relevant employee or officer experienced in conducting a hearing before the Commission effectively. Although the matter and the hearing is not overly complex for an experienced lawyer, it is sufficiently complex for a lay person (i.e. a person not experienced in conducting a hearing before the Commission effectively, such as an unexperienced employee of officer of the Respondent in this case).

[9] In my view, taking into account each of the matters set out under s.596(2) of the Act, having two inexperienced, unrepresented parties at the hearing would not enable such hearing to be conducted more efficiently — indeed, quite the opposite.

[10] The Applicant did not raise any issue of “fairness” on the basis that he either: (a) was unable to represent himself effectively at the hearing; or (b) that such representation (of the Respondent) would occasion unfairness upon him at the hearing. Further, the Applicant did not specifically object to Mr Cantanese appearing in his capacity the Respondent’s legal representative.

The employment and the dismissal

[11] The parties agree that the Applicant was terminated verbally by the Respondent on 6 December 2018, effective immediately. This was followed up in writing by way of termination letter dated 7 December 2018.

[12] The Applicant was employed by the Respondent as a casual Residential Support Worker. He was subject to a six month probation period commencing 2 July 2018. The dismissal of the Applicant therefore occurred during his probationary period with the Respondent (i.e. around 5 months after his employment commenced).

Matters to be taken into account

[13] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366 Time for application

…

(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.”

[14] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.  4 A decision whether to extend time under s.366(2) involves the exercise of a discretion.5

[15] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) 6as follows:

“[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.”

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” (emphasis added)

[12] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 7

[16] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[17] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight. Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 8 

[18] The Applicant submitted that the delay in bringing his Application was for the following reasons:

•  he was unaware, due to his brief employment (less than 6 months) with the Respondent, that there was an avenue to appeal or dispute his dismissal; and

•  he only found out about being able to make a claim to dispute his dismissal when he attended a job seeker appointment on 3 January 2019 and was told about being able to lodge an F8 Form.

[19] The foregoing reasons for delay provided by the Applicant are not satisfactory. They do not weigh in favour of a finding as to exceptional circumstances.

[20] Further, the fact that an Applicant is not aware of the 21 day time limit to file an application is not an unusual or exceptional situation. The Applicant made no submissions asserting to the contrary.

Action taken by the Applicant to dispute the dismissal

[21] Apart from lodging the Application, there is no evidence of the Applicant contacting the Respondent to dispute his dismissal. This issue thus does not weigh in favour of the Applicant, or a finding as to exceptional circumstances.

Prejudice to the employer

[22] Neither party made any submissions as to prejudice to the Respondent. This is thus a neutral consideration in this matter.

Merits of the application

[23] The Applicant alleges, in summary, that the reason the Respondent dismissed him (i.e. took adverse action against him) was because he had an injured foot (being a foot he injured outside work).

[24] The Respondent rejects that the Applicant’s alleged reason (foot injury) was the reason for the Applicant’s dismissal. Rather, the Respondent says that the Applicant was terminated because the Applicant allowed a resident (on 19 November 2018) to leave the house premises (at which the resident resided), i.e. go “off-site”, without ensuring a record of the outing was recorded in writing. This was done despite the resident’s relative verbally advising the Applicant of such an outing. The Respondent considered such conduct by the Applicant very seriously (i.e. the Respondent needs to know whether its residents are on or off premises at all times) and a fundamental breach of the Respondent’s policies and protocols in this aspect of its operations. Given the breach by the Applicant was so blatant and serious, the Respondent decided to terminate the Applicant’s employment immediately, including because the Applicant was serving a probationary (trial) period of employment.

[25] The Applicant does not deny that the incident “probably” occurred but says he was unaware of or does not remember the incident or his conduct or involvement in same as he was on heavy pain-killers at the time for his injured foot. According to the Applicant, if the incident did occur, i.e. he was notified of the resident outing and did not make a record of same, it was “human error” because the Applicant was not completely lucid. However, pausing there, if that was the case, one wonders why the Applicant was even at work. The Applicant also says that he was not taught, inducted or trained by the Respondent in relation to recording resident outings, and only heard about his obligations to make recordings of resident outings from another staff member.

[26] I do not consider the Applicant to have a particularly strong case, on the question of liability or damages.

[27] In relation to liability, the Applicant’s alleged conduct would be a strong and credible basis for the Respondent terminating his employment. The Applicant would need to sustain an argument that such a reason was not the real reason for his dismissal, and rather, that the (or a) operative reason for his termination was a reason prohibited by Part 3-1 of the Act. The Applicant may have a basic prima face case as to liability by reference to s.351 of the Act, but it is not a strong case. The reverse onus under s.361 of the Act obviously applies, but it can be quickly discharged via the credible denial of the decision-maker. 9 In this case, the Respondent’s decision-maker expressly denies the reasons asserted by the Applicant for his termination.

[28] In relation to damages, the Respondent will obviously argue that even taking the Applicant’s case at its highest, and assuming liability for contravention of Part 3-1 of the Act by the Respondent in dismissing the Applicant because of a prohibited reason, the Applicant ought not be compensated for any contravention as the Applicant was able to be terminated by the Respondent for good reason, bad reason, or no reason at all (other than a prohibited reason under Part 3-1 of the Act) as he was on a probationary (trial) period of employment. In essence, a case ordinarily does not have reasonable prospects of success unless issues of liability can be properly said to sound in more than nominal damages. 10 Pursing a good case on liability on the basis that it will only sound in nominal damages, but with the desire (or hope) that it will or might also attract a pecuniary penalty for contravention of a statutory provision is, in my view, an awful approach to litigation, and ought not be said to properly enliven considerations of substance in a genuine merits assessment on the availability of relief (damages or otherwise) in an out of time request.

[29] Although I do not make findings of fact or law in relation to the Applicant’s Application, on the material and evidence before me, in my view, the merits do not weigh in favour of the Applicant, or a finding as to exceptional circumstances. Perhaps a most telling admission from the Applicant confirming his case on the merits to be bad was when the Applicant stated:

“All I am here for is to be reimbursed for 19 November [2018] to 6 December [2018] and the matter will be all over.”

[30] It appears that the Applicant’s real or actual claim (if any) is not one of general protections, but one of back-pay, in respect of a two week period during which he alleges he was suspended from duty without pay.

Fairness as between the Applicant and other persons in a like position

[31] Neither party made any material submission on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case. Consequently, this matter is a neutral consideration in the present circumstances.

Conclusion

[32] As is evident from the analysis above, the preponderance of matters that must be taken into account weigh against a conclusion that there are exceptional circumstances in this case. None of the factors weigh against this conclusion, and three factors weigh neutrally. I am therefore not persuaded that there are exceptional circumstances warranting an extension of time. The Applicant did not raise any issue which might persuade me to exercise my discretion otherwise notwithstanding that I might conclude that there are not exceptional circumstances. Nor am I aware of any persuasive discretionary consideration which would warrant an alternative conclusion.

[33] The request for an extension of time is refused and, accordingly, the Application will be dismissed. An order to this effect will be issued accordingly.

DEPUTY PRESIDENT

Appearances:

The Applicant appeared for himself.

Mr David Catanese, Solicitor, Victorian Government Solicitor’s Office, appeared for the Respondent.

Hearing details:

20 March 2019

Printed by authority of the Commonwealth Government Printer

<PR706566>

 1   Fair Work Act 2009 (Cth) s 366(1) and (2).

 2   See s.36 Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009; see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

 3 I note that at the hearing the Applicant was given leave to amend his Application to add additional reasons to his request for an extension. Such additional reasons have been considered in this decision.

 4   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 5   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 6   [2011] FWAFB 975.

 7   Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]; see also Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

 8   See Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 9   Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (a [41]-[45]).

 10   See Legal Profession Uniform Law Application Act 2015 (NSW), Schedule 2 cll 2, 4 (formerly s 347 of the Legal Profession Act 2004 (NSW)); Actrol Parts Pty Ltd v Coppi (No 3) [2015] VSC 758 (at [79]-[82]).