Manoj Handique v Mission Australia Housing
[2018] FWC 2780
•18 MAY 2018
| [2018] FWC 2780 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Manoj Handique
v
Mission Australia Housing
(C2018/1998)
| Commissioner Platt | ADELAIDE, 18 MAY 2018 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed.
Summary
Mr Manoj Handique has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Mission Australia Housing (Mission Australia) on 14 March 2018 in contravention of the general protections provisions of the Act.
This application was lodged on 16 April 2018.
Mr Handique’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“Since, I was not employed for six months or more, I wasn’t aware of my right to apply for unfair dismissal on this application ground (sic).
I was under the impression that stuff like misrepresentation, bullying and further victimisation are dealt in the Equal Opportunity Tasmania + wrongful termination (sic).
Also, when I did found out about it few days ago, I was still going through and trying to deal with the stress caused by bullying, financial hardship, embarrassment, failure (sic). I have gained some courage finally to apply for this and hoping to get some justice (sic).”
Mission Australia filed a form F8A Employer Response on 18 April 2018 which indicated that the dismissal occurred on 14 March 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.
On 27 April 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 14 May 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties who were directed to provide an outline of argument of their respective positions by 4 May 2018.
On 4 May 2018, Mission Australia provided a copy of a letter from Equal Opportunity Tasmania which advised on 15 March 2018 it had received a complaint from Mr Handique and that it had accepted the complaint. The letter advised of a conciliation conference to be held on 14 June 2018. Mission Australia made the submission that Mr Handique was prevented from making multiple claims in relation to the dismissal as a result of Part 6-1, Division 3 of the Act. Mr Handique contended that the two applications dealt with separate issues.
On 7 May 2018 I advised the parties that Mr Handique’s application was not presently before the Commission, and would not be unless the extension of time application was successful. As a result, there is no requirement at this point in time to address the impact of s.725 of the Act and this decision will only address the extension of time application.
Submissions
On 3 May 2018, Mr Handique provided a written submission which is relevantly summarised as follows:
· On 13 March 2018 he received a medical certificate from Dr Jill Rogers certifying that he was unfit to continue his usual occupation on that day.
· He was dismissed on 14 March 2018 and the dismissal took effect on that day.
· Three or four days after the dismissal Mr Handique attended at the Equal Opportunity Tasmania.
· On 15 March 2018 he lodged a complaint with Equal Opportunity Tasmania.
· Mr Handique understood that he was unable to make a unfair dismissal claim as he had not served the minimum employment period, but did not become aware of his ability to make a general protections claim until about 5 days before this application was lodged, by this stage the 21 day lodgement period had ended.
· Mr Handique suggests the delay was caused by enormous stress and that it was taxing on his emotions to write about these matters. He stated he needed some time for his mental wellbeing before he took up this fight.
· On 3 May 2018 Dr Jill Rogers advised that she had seen Mr Handique several times regarding “work related stress over the last 6 months” and that on 22 March 2018 she referred him to a Psychologist for further support and assessment.
· Mr Handique provided submissions and a large amount of material (including a video) concerning the merits of his claim.
Mission Australia provided a written submission which contended that Mr Handique was prevented from bringing multiple applications by virtue of s.725 of the Act.
A Hearing was conducted by way of telephone conference on 14 May 2018. A sound file record of the telephone conference was kept. Mr Handique represented himself and Mr Corban Hicks (Employee Relations Business Partner) represented Mission Australia.
Mr Handique reiterated his submissions and contended that he was not aware of the general protections provisions in the Act and was stressed at the time.
Mission Australia contended the fact that Mr Handique was not aware of the potential to lodge a general protections claim was not an exceptional circumstance. Mission Australia did not dispute that Mr Handique was suffering from stress but submitted that his medical condition did not prohibit his communications with Equal Opportunity Tasmania on 15, 16 and 19 March and the lodgement of a claim on 15 March 2018. Mission Australia submitted that it suffered prejudice, in that, had the application been lodged in time it would have had the opportunity to seek a statement from a witness who has now left the employ of Mission Australia.
Mission Australia contended that Mr Handique circumstances were not exceptional.
Mr Handique submitted in reply that the main reason for his lateness was ignorance of the general protection provisions.
Applicable Law
Section 366 of the Act relevantly states:
“Time for application
(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).
(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.”
I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
Consideration
I have considered the material and submissions provided by the parties detailed at paragraphs [8] – [14].
This general protections application by Mr Handique was made 12 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
Ms Handique has relied on ignorance of access to a remedy under the general protection provisions of the Act and also that the stress he was experiencing contributed to the delay.
Ignorance of the lodgement timeframe does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.[2]
It is common for employees to suffer shock and trauma as a result of dismissal from employment.[3]
Mr Handique’s medical condition (which is not disputed by Mission Australia) did not prohibit him from communicating with and lodging a claim to Equal Opportunity Tasmania on 15 March 2018. Mr Handique’s conduct in lodging the Equal Opportunity claim three days after his dismissal appears to contradict his contention that he was unable to make this application in time because of his medical condition.
Mr Handique has failed to provide a credible explanation for a part of the delay and this tends to weigh against a finding of exceptional circumstances.[4]
Any action taken by the person to dispute the dismissal
Mr Handique contested the dismissal by lodging a complaint with Equal Opportunity Australia on 15 March 2018. No other action was taken other than the lodgement of this application.
Prejudice to the employer (including prejudice caused by the delay)
I accept that the delay in this matter presents prejudice to Mission Australia as a result of the departure of a potential witness, however this is not determinative in this matter.
The merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
For the reasons I have set out above, I am not satisfied that Mr Handique’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[5] reflecting this decision will be issued.
COMMISSIONER
Appearances:
Mr M Handique the Applicant
Mr C Hicks on behalf of the Respondent
Hearing details:
2018.
Adelaide:
14 May.
<PR607182>
[1] [2011] FWAFB 975.
[2] Rose v BMD Constructions Pty Ltd[2011] FWA 673.
[3] Rose v BMD Constructions Pty Ltd[2011] FWA 673.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[5] PR607183.
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