Malcolm Watson v Paul Roger Callander T/A Deakin Security

[2020] FWC 3766

[2020] FWC 3766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Malcolm Watson
v
Paul Roger Callander T/A Deakin Security
(C2020/1286)

COMMISSIONER YILMAZ MELBOURNE, 20 JULY 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances – contention if dismissal due to underpayment of wages - extension of time granted.

[1] On 3 March 2020, Mr Malcolm Watson lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Paul Roger Callander T/A Deakin Security (Deakin Security). Mr Watson commenced employment on 22 January 2019 as a casual security officer and his last day of work was on 18 December 2019.

[2] Mr Watson submits that he contacted the Fair Work Ombudsman (FWO) on 2 December 2019 to inquire into his wage entitlements and was instructed to try to resolve the matter directly with his employer. Mr Watson did follow-up with his employer on the same day. Mr Watson submits he maintained contact with the FWO in relation to his wage inquiries. He further submits that his employer, Mr Callander of Deakin Security, informed him that his wages would be corrected with the underpayment being made good. However, in the same telephone conversation Mr Watson’s employment was immediately terminated.

[3] Mr Watson submits he contacted the FWO to find out what he could do, due to his dismissal. He submits that he was informed to file an unfair dismissal form, “not a general protections form”. 1

[4] The unfair dismissal application was filed on 28 December 2019 which was within the 21-day statutory limit.

[5] On 28 May 2020, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application. Mr Callander of Deakin Security did not appear, but was represented by Mr Cresp, the accountant for the business.

[6] Mr Watson was self-represented.

[7] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 4 days after the 21-day statutory time limit.

Applicant’s submissions

[8] Mr Watson submits that he exercised a workplace right by advising his employer that he had been underpaid. To then be terminated as a result of exercising a workplace right, is a contravention of section 340 of the Fair Work Act 2009.

[9] Mr Watson submits that his employment was terminated for raising the underpayment, while the other two casual security employees had their rate of pay rectified and continued working for Deakin Security.

[10] He further submits that Mr Callander informed him that he felt uncomfortable having Mr Watson in the workplace because people will know he raised the underpayment.

Respondent’s submissions

[11] Deakin Security contend that Mr Watson was informed on 18 December 2019 via telephone that there were no hours of work available. Further as there were no hours of work, Deakin Security could no longer employ him from 18 December 2019. 2

[12] Deakin Security further submit that the claim is outside the Small Business Fair Dismissal Code. 3 It submits it has 2 employees in total.4 It further submits the application is out of time and should be dismissed.

[13] Deakin Security deny that Mr Callander said to Mr Watson that there was discomfort having him around because he raised the underpayment.

Consideration

[14] General protections applications involving dismissal must be made within 21 days.

[15] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

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

[16] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 5 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 6

[17] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[18] The general protections involving dismissal application was lodged with the Commission on 3 March 2020, 55 calendar days late.

[19] Mr Watson submits his unfair dismissal application was lodged on 28 December 2019 within the 21-day statutory time frame on advice from “Alexandra” from Fair Work 7. At the hearing it was clarified that Mr Watson had a number of conversations with Fair Work, which is understood to be the Fair Work Ombudsman (FWO). It is submitted that the FWO representative may have contacted the Respondent immediately before Mr Watson was advised by Deakin Security that his underpayment would be rectified and then his employment terminated.

[20] After the termination of employment, Mr Watson submits he contacted the FWO immediately where he was advised to file an unfair dismissal application, not a general protections application. 8 He submits he relied on this advice to file the unfair dismissal application rather than general protections application.

[21] Mr Watson submits that the unfair dismissal conciliation conference scheduled for 11 February 2020 was rescheduled at the request of Deakin Security.

[22] At the rescheduled conciliation conference on 3 March 2020, Mr Watson submits the conciliator informed him that as he did not complete the minimum 12 months service required for the application, the conference was then discontinued. Mr Watson further submits the conciliator informed him that he should file a general protections application immediately.

[23] Immediately following the discontinuance of the conciliation conference, Mr Watson withdrew the unfair dismissal application and filed the general protections application.

[24] Mr Watson’s submissions concerning the filing and withdrawal of the unfair dismissal application and subsequent filing of the general protection application accords with the Commission’s file. Mr Watson’s delay in filing the general protection application is explained for the period 9 January 2020 (the days after the 21-day limit) to 3 March 2020.

[25] Mr Watson relied on oral submissions and his written materials and no evidence relating to communications with his employer or the FWO was submitted. Similarly, Deakin Security provided no evidence to support their oral submissions and written materials.

[26] Mr Watson submits he relied on the advice he received from the FWO to file an unfair dismissal application, and this error was not obvious until the unfair dismissal conciliation conference. There was no further delay in filing the general protection application.

[27] Mr Watson submits he kept the emails between himself and his employer, and it is unknown why none of this material was tendered to support his application for an extension of time.

[28] Mr Watson provided an explanation for the period of delay and there was no period without an explanation. While there is a high bar for the granting of an extension of time, I accept there was no contention that the issue of underpayment did occur, that Mr Watson sought the assistance of the FWO in this regard and Deakin Security accepted it had made an error and rectified the underpayment. While the delay after the 21^st day is to be considered, the period prior to the 21^st day is relevant as to whether there are exceptional circumstances. 9 In this matter, Mr Watson pursued an underpayment with the support and advice of the FWO, and immediately on termination he was, he submits, instructed to file an unfair dismissal application. This application was made without delay and while this application was on foot, no other application could be made. The reason for the delay attributable to the unfair dismissal application is a credible reason.

[29] I consider the reasons given for the delay weigh in the Applicant’s favour.

Steps taken to dispute the termination

[30] Mr Watson submits that after the dismissal he told Mr Callander that it was “unfair and unlawful”. He further submits, “he had advised me that he didn’t feel comfortable having me around any longer now that I had raised the issue of being underpaid. He told me that he didn’t want me around the place any longer in case I bad mouthed him in regard to the error he had made in relation to underpaying me and other employees”. 10

[31] Deakin Security do not adequately address this consideration.

[32] I accept that Mr Watson disputed the dismissal during the discussion on 18 December 2019. Mr Watson made it clear to Mr Callander that the dismissal was unfair and unlawful. Further Mr Watson filed his unfair dismissal application promptly after he conferred with the FWO. This consideration weighs in Mr Watson’s favour.

Prejudice to the employer

[33] Mr Watson submits that the unfair dismissal application was lodged within the required period and therefore if this application causes Deakin Security any disadvantage, he has no control over it. Mr Watson submits his general protection application was lodged immediately after he withdrew the unfair dismissal claim.

[34] Deakin Security submit that the application has created considerable additional stress as the sole proprietor is working many hours to ensure the ongoing viability of the business. 11

[35] While I accept that an extension will be an inconvenience, the application is not a long delay considering Deakin Security were in the process of responding to an unfair dismissal application, and that Mr Watson made it clear to Mr Callander that his termination was unfair and unlawful because he submits the reason for the termination was because he exercised his workplace right to rectify the underpayment of wages. Deakin Security admit to embarrassment having to terminate Mr Watson’s employment after he brought to their attention the underpayment. The period was not so long to cause prejudice. Further, while the mere absence of prejudice does not justify an extension of time, where the respondent claims prejudice it has an obligation to support the position with evidence. No relevant evidence or persuasive submissions of an alleged prejudice were advanced by Deakin Security.

[36] This consideration does not weigh in favour of either party, therefore I find this consideration neutral.

Merits of the application

[37] Mr Watson submits Mr Callander advised him that he didn’t feel comfortable having him around the workplace any longer because he raised the underpayment.

[38] Mr Watson submits that he has kept the email correspondence between himself and his employer since 2 December 2019, after he first made enquiries with the FWO. He submits he put Mr Callander on notice that the FWO would contact him and believes the FWO tried to contact Deakin Security because he worked his regular shifts up until 18 December 2019.

[39] Mr Watson submits Mr Callander’s phone call to him on 18 December 2019 was a direct result of his exercising his right to raise his underpayment of wages. Further he acknowledges that Deakin Security understood their error because Mr Callander apologised for the error before terminating his employment. 12

[40] Deakin Security submit that “the proprietor, Paul Callander, advised the applicant at the time, that he felt uncomfortable having to proceed with this action in view of the matter relating to the underpayment issue”. 13 This “action”, being the termination of employment.

[41] Deakin Security further submit that the regular hours worked by Mr Watson were given to another existing employee that became available to work the hours, which it submitted were worked by this employee when he first commenced with Deakin Security. 14 Mr Cresp for the Respondent submitted that Mr Watson’s employment was of temporary arrangement. Mr Watson contested that his employment was of a temporary nature and argued that he was never informed his employment was temporary.

[42] It was not contested that Mr Watson was underpaid, that Mr Callander felt uncomfortable about the underpayment, that he informed Mr Watson that he would rectify the underpayment and terminated Mr Watson’s employment in the same phone call. It is submitted that Mr Watson was employed temporarily on the shift roster, which is disputed by Mr Watson. Deakin Security presented inconsistent submissions, that it was a position filled by a previous employee becoming available, that there were no hours of work and that it was a temporary position. 15 During the hearing Mr Cresp submitted that Mr Watson was a casual employee and it was not the case that the other employee took over Mr Watson’s shift, he submits there were no hours available.16

[43] While the merit was not properly tested, I consider it sufficient that Mr Watson established that the substantive application was not without merit. 17 I consider the merit argument advanced by Mr Watson weighs in his favour.

Fairness between the person and other persons in a like position

[44] Mr Watson compares his situation with those that remain in the workplace and submits that because he raised the underpayment, he was disadvantaged and suffered a termination of employment unlawfully, while the remaining employees had their pay rates adjusted correctly and remained in employment. 18

[45] Deakin Security did not address this consideration.

[46] The facts of this matter are relevant to this consideration. Mr Watson raised a workplace right and while he had his underpayment addressed, the other employees of Deakin Security retained employment and Deakin Security was put on notice in regard to its legal obligations concerning rates of pay applicable to security work conducted by its employees. It is further contested whether the employee given Mr Watson’s shifts was absent from those shifts temporarily. This consideration weighs in Mr Watson’s favour.

Conclusion

[47] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

[48] On balance of all the considerations, an extension of time weighs in favour of Mr Watson being granted an extension of time. While there is a high bar and not one consideration was necessarily exceptional, the combination of factors in my view warrant an extension of time.

[49] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

COMMISSIONER

Appearances:

Mr M. Watson for himself

Mr M. Cresp for the Respondent

Hearing details:

26 May
Melbourne (by telephone)
2020

Printed by authority of the Commonwealth Government Printer

<PR721079>

 1   Applicant’s outline of Argument at Q1d.

 2   Respondent’s outline of Argument at Q1a – c.

 3   Ibid at Q1e.

 4   Respondent’s form F8A.

 5   [2011] FWAFB 975.

 6 Ibid at [13].

 7   Applicant’s outline of Argument at Q1d.

 8   Ibid.

 9   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

 10   Applicant’s outline of Argument at Q1e.

 11   Respondent’s outline of argument at Q1g.

 12   Applicant’s outline of argument at Q1g.

 13   Respondent’s outline of Argument at Q1h.

 14   Respondent’s form F8A at Q5.1, and transcript evidence.

 15   Respondent’s form F8A at Q5.1, and transcript evidence.

 16   Transcript at 20:27, 25:00 and 31:06.

 17   Kornicki v Telstra-Network Technology Group Print P3168.

 18   Applicant’s outline of argument at Q1i.