Mark Stephens v Albury Wodonga Community College Limited T/A Albury Wodonga Community College

[2020] FWC 1007

[2020] FWC 1007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mark Stephens
v
Albury Wodonga Community College Limited T/A Albury Wodonga Community College
(C2019/6842)

DEPUTY PRESIDENT YOUNG MELBOURNE, 24 FEBRUARY 2020

Application to deal with contraventions involving dismissal - extension of time.

[1] This decision concerns an application by Mr Mark Stephens under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] It is uncontested that Mr Stephens’ employment ended on 17 October 2019. His application was lodged on 8 November 2019. Accordingly, the period of 21 days for lodgement ended at midnight on 7 November 2019 and the application was therefore lodged 1 day out of time. Mr Stephens seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.

[3] On 17 February 2020 I conducted the proceeding by way of determinative conference. Mr Stephens appeared on his own behalf. Ms Knight appeared on behalf of the Respondent.

Consideration

[4] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 1

[5] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 2 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.3

[6] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

Reason for the delay

[7] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 4 or a reasonable explanation.5 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.6 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.7

[8] In his materials and at the determinative conference Mr Stephens says that prior to his dismissal he had been managing his mental health and that the circumstances of the termination of his employment triggered a rapid deterioration of his mental health. He says that a side effect of this deterioration is difficulty in maintaining focus and concentration for more than 10 minutes at a time. 8 At the determinative conference he said that as a result of the deterioration in his mental health he struggled to complete the application in time.

[9] As part of his materials, Mr Stephensfiled a medical certificate written by Dr Asim Khan dated 5 February 2020. This medical certificate states that Mr Stephens “has mental health issues and has been advised to see psychologist has put under mental health plan since December 2018”. 9 [reproduced as written]

[10] The medical certificate does not contain a diagnosis of any particular mental health condition nor indicate that Mr Stephens’ mental health issues precluded him from lodging the application in time. In particular, it does not identify any particular incapacity under which Mr Stephens was operating for the period following his dismissal until the lodgement of the application. Further, the mental health plan referenced has been in place for a significant period of time during which time Mr Stephens has had capacity to commence new employment and attend for work. This can therefore not provide an explanation for the delay.

[11] Additionally, it is undisputed that on 18 October 2019, the day following his dismissal, Mr Stephens wrote to the Respondent, via email, protesting his dismissal and its process and advancing a settlement proposal (First Dispute Letter). The Respondent replied in writing via email on 21 October 2019, rejecting Mr Stephenson’s settlement proposal. Mr Stephenson then again wrote, via email, to the Respondent on 22 October 2019 indicating his dissatisfaction with the Respondent’s reply (Second Dispute Letter). Both the First Dispute Letter and the Second Dispute Letter are considered pieces of correspondence and contain a not insubstantial articulation of Mr Stephens’ position. It is difficult to see how Mr Stephens had sufficient capacity to draft and send the dispute letters but did not have sufficient capacity to lodge the application in time.

[12] Mr Stephens also submits that a further reason for the delay was that he was conducting research on his rights and obligations, making phone enquiries and referrals and completing the application form which he says was “achieved with significant duress”. 10 It is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement.11 Further, both the First Dispute Letter and the Second Dispute Letter make statements to the effect that Mr Stephens will pursue his dismissal further if the parties do not resolve the matter by agreement. Mr Stephens therefore had at least some awareness of his ability to challenge his dismissal immediately after it was effected and, it would appear, an intention to do so. Given that, it is difficult to see how this could provide an acceptable explanation for the delay in lodgement. For completeness, I note that the Respondent rejected Mr Stephens settlement proposal on 21 October 2019. Mr Stephens was therefore aware within three days of his dismissal that the Respondent was not willing to enter into any form of negotiated settlement. At that time, Mr Stephens still had a further 17 days within which to lodge his application. As such, the settlement discussions cannot be said to provide an explanation for the delay in lodgement.

[13] Accordingly, in my opinion, Mr Stephens has failed to provide an acceptable or reasonable explanation for the delay in lodgement. This weighs against the granting of an extension of time.

Action taken by the person to dispute the dismissal

[14] As set out above, on 18 October 2019 Mr Stephens wrote to the Respondent expressing his disappointment and distress at the process which lead to his dismissal and the outcome itself. 12 The Respondent replied to Mr Stephens on 21 October 2019.13 The following day Mr Stephens again wrote to the Respondent, further expressing his disappointment at the “lack of due process, procedural fairness and subsequent defaming of my character”. In both of Mr Stephens’ emails to the Respondent he states that he will further pursue his dismissal.14

[15] It is therefore clear that Mr Stephens did contest his dismissal via email on both 18 and 22 October 2019. This weighs in favour of the granting of an extension of time.

Prejudice to the employer

[16] The Respondent submits that it will suffer prejudice. It submits that this is due to the “considerable staff time” is has taken “to continue to review, complete and submit the additional documentation for this consideration of time.” It further submits that the process has interrupted teaching staff and caused anxiety amongst staff. 15

[17] Mr Stephens submits that no prejudice will be suffered by the Respondent as the application was only one day late. 16

[18] Whilst, I accept that the preparation for and participation in an extension of time proceeding takes time, the Act clearly allows for the acceptance of a claim after the lodgement period has expired in “exceptional circumstances”. I cannot identify any particular prejudice that would accrue to the employer were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[19] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[20] Mr Stephens submits that he was dismissed in contravention of section 340 of the Act. This section provides, amongst other things, that a person must not take adverse action against another person because the other person has a workplace right, or has, or has not, exercised a workplace right. ‘Adverse action’ is defined in section 342 and includes a dismissal, altering an employee’s position to their prejudice and injuring an employee in their employment. Section 341 provides, amongst other things, that an employee has a workplace right if the employee is entitled to the benefit of a workplace law. Section 341 also provides that an employee has a workplace right if the employee is able to make a complaint or inquiry in relation to their employment.

[21] Mr Stephens alleges that section 340 of the Act was breached by the company as their “grievance/dismissal procedures” were unfair and inadequate 17 and that there was a “lack of due process and procedural fairness”.18 Mr Stephens says that this was due to the Respondent failing to provide to him details of the allegations against him and failing to provide an opportunity to respond to the allegations.19 At the determinative conference Mr Stephens confirmed that the workplace right he sought to rely upon was the absence of procedural fairness and unfairness in the manner in which his dismissal was effected. Mr Stephens says that he was only advised that allegations of misconduct had been made against him and found to be substantiated at the meeting on 17 October 2019, at which he was dismissed.

[22] There is no dispute that the company dismissed Mr Stephens. Accordingly, adverse action, in the form of dismissal, was taken against Mr Stephens. The Respondent says, however, that Mr Stephens’ employment was not terminated because he exercised a workplace right or for any other prohibited reason. 20 It says Mr Stephens’ employment was terminated following an internal investigation into his conduct in the workplace, in which it was found that Mr Stephens engaged in:

•  inappropriate behaviour towards women in the workplace;

•  displays of aggressive behaviour; and

•  conduct which undermined and disrespected his manager.

[23] Whilst on the material before me it does indeed appear that Mr Stephenson was denied procedural fairness in the manner in which his dismissal was effected, such a denial does not, without more, found a breach of section 340 of the Act. Mr Stephens did not bring to my attention any workplace law, workplace instrument or other order made by an industrial body which gave rise to a right to procedural fairness. Nor did Mr Stephens bring to my attention any other sources of such a right. Accordingly, on the basis of the material before me Mr Stephens’ claim appears weak. This weighs against the granting of an extension of time.

Fairness as between the person and another person in a like position

[24] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Stephens and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[25] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[26] Whilst the delay in lodgement was short, being a period of only one day, having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist.

[27] Accordingly, I decline to grant an extension of time under section 366(2). Mr Stephens’ application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

M Stephens on his own behalf

K Knight for the Respondent.

Hearing details:

2020.

By telephone:

February 17.

Final written submissions:

Applicant, 5 February 2020

Respondent, 12 February 2020

Printed by authority of the Commonwealth Government Printer

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 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

 2   [2011] FWAFB 975

 3   At [13]

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 5   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 7   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

 8   Applicant’s Outline of Argument question 1d

 9   Applicant’s Outline of Argument, Annexure

 10   Applicant’s Outline of Argument question 1d

 11   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975

 12   Applicant’s Outline of Argument question 1d, Respondent’s Outline of Argument question 1e and Annexure 1

 13   Applicant’s Outline of Argument question 1d, Respondent’s Outline of Argument question 1e and Annexure 2

 14   Applicant’s Outline of Argument question 1d, Respondent’s Outline of Argument question 1e and Annexure

 15   Respondent’s Outline of Argument question 1g

 16   Applicant’s Outline of Argument question 1f

 17   Form F8 Application question 3.3

 18   Applicant’s Outline of Argument question 1h

 19   Form F8 Application question 3.3

 20   Form F8A Response Form question 5.1