Mathew Sternberg v Gables Reception Pty Ltd T/A the Gables High Tea

[2016] FWC 7892

[2016] FWC 7892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mathew Sternberg
v
Gables Reception Pty Ltd T/A The Gables High Tea
(C2016/6145)

DEPUTY PRESIDENT DEAN SYDNEY, 7 NOVEMBER 2016

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

[1] Mr Matthew Sternberg (the Applicant) was employed by Gables Reception Pty Ltd T/A The Gables High Tea (the Respondent). He alleges that the termination of his employment by the Respondent was in breach of the general protections provisions of the Fair Work Act 2009 (the Act). The Respondent denies the allegations and contends that the Applicant’s employment ended after he resigned during a trial period.

[2] The Applicant’s general protections application was received by the Fair Work Commission (the Commission) on 13 October 2016. The date of the alleged dismissal was not stated in the application form. On 14 October 2016 a member of the Commission’s registry staff contacted the Applicant to obtain the missing information and was advised by him that his dismissal occurred on 20 September 2016.

[3] The matter was listed for hearing by telephone on 4 November 2016 with respect to the extension of time issue. At the hearing, the Applicant appeared on his own behalf. Ms J Souter appeared for the Respondent. Both the Applicant and Ms Souter gave oral evidence and each submitted a written outline of argument.

[4] The parties are in dispute as to the date the termination took effect and whether the Applicant resigned or was dismissed. At the outset of the hearing, I indicated to the parties that the Commission will not make a finding of whether the Applicant resigned or was dismissed, but will rather determine the date the employment ended. For the reasons set out below, I have concluded that the Applicant’s employment ended on 20 September 2016. It follows that the Applicant’s general protections application was filed 2 days outside the 21 day period prescribed by s.366(1)(a) of the Fair Work Act 2009 (the Act) and cannot proceed unless an extension of time is granted by the Commission.

The Evidence

[5] The following matters are not disputed by the parties:

a. The Applicant commenced employment with the Respondent on 5 July 2016.
b. In early September 2016 the Applicant was ill, and as a result he was absent from work.
c. On 20 September the Applicant telephoned Ms Souter to advise his intention to return to work the next day on light duties, and was told by Ms Souter not to return until he obtained a clearance from his doctor.
d. During this telephone conversation, Ms Souter told the Applicant that the position of Head Chef he had been performing had been filled by another chef, and he was asked to return to work under the new chef. The call ended in an argument.
e. On 29 September 2016 the Applicant sent an email to Ms Souter. The relevant sections of that email are set out later in this decision.

[6] Ms Souter gave evidence that she made it clear to the Applicant when he commenced he would be performing the position of Head Chef on a trial basis only. The Applicant was advised that the Respondent would be conducting interviews for the position and that he could apply if he wished to do so, an invitation that the Applicant did not take up.

[7] Ms Souter also said that prior to being informed by the Applicant’s mother of the Applicant’s intended sick leave, the Applicant had sent a text message to her saying that he ‘couldn’t continue on in this job, it is too stressful and I am not paid enough. Pay me more or I’m quitting.’ The Applicant did not return her calls or text messages in the following days. She was left in the dark and did not know the Applicant’s intentions with respect to his return to work until the Applicant finally contacted her on 20 September 2016, by which time she had filled the position of Head Chef. Ms Souter said that the Applicant’s actions caused serious disruption to the business and that it was the Applicant’s decision to quit despite her request that he continue working with same pay under the new Head Chef.

[8] The Applicant gave evidence that his recollection of the discussion between him and Ms Souter on 20 September 2016 was unclear as he was unwell at the time. As a result, I prefer the evidence of Ms Souter as to this conversation.

[9] Ms Souter also gave evidence that she sent a text message to the Applicant on or shortly after 20 September 2016, saying that she did not want him to quit and wanted him to return to a chef’s role. The Applicant was unable to recall this and I am satisfied and find that Ms Souter did send a text message to this effect.

Date the employment ended

[10] After hearing evidence from the Applicant and Ms Souter, I indicated to the parties that I had formed a preliminary view that the date on which the employment ended was 20 September 2016. The Applicant then contended that the date was 29 September 2016, being the date he sent an email to Ms Souter raising issues involving his demotion/dismissal, which would render his application being filed within the prescribed time.

[11] The email has not been provided to the Commission, despite the Applicant being advised prior to the hearing to provide any material he wished to rely upon. The Applicant was asked to forward that email to my chambers (and the Respondent) for consideration. That email was received soon after the hearing concluded. Ms Souter confirmed by email after the hearing that she had received this email from the Applicant on 29 September 2016.

[12] Relevant extracts of the email (unedited) are as follows:

‘…i am writing to you in email (also as documented evidence for fair work) which i feel i may need to involve with this matter if we cannot sort this out today.

So... basically through phone calls and text messages i have been demoted/sacked while off work with shingles…….

We spoke about this last week and i told you i couldn't except the demoted position you had offered me after replacing me while i was sick…. Also giving me the reason of age as to why you where replacing me has lead me to this decision…..

Then you informed me that you had replaced me with an older chef who was more experienced, and thought i was to young for the job anyway even though you had just shaken hands on me getting the job?

Anyway you told me last week that my annual leave would be paid plus leave loading in this pay, aswell as the sick pay withheld from my previous pay packet. Which it hasnt. I also believe you need to pay me a weeks notice as you didn't give me the opportunity to work this period...

I also think that some compensation for time out of work and stress should be considered....’

[13] It is clear from the Applicant’s email that he considered he had communicated to the Respondent his rejection of the ‘demoted position’ in their telephone discussion on 20 September 2016.

[14] The evidence is also clear that the Applicant initially advised the Commission staff that his employment ended on 20 September 2016.

[15] I further find that the Respondent had asked the Applicant not to quit on or around 20 September and had sent a text message to that effect.

[16] For the above reasons, I have come to the conclusion that the Applicant’s employment ended on 20 September 2016.

Extension of time

[17] I will now consider the extension of time issue.

[18] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.

[19] Section 366 of the Act provides:

366 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.

[20] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd¹ where the Full Bench said:

“[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.”

[21] I now deal with each of the provisions of s.366(2) of the Act.

Reason for the delay

[22] There was no clear evidence as to the reason for the delay. As mentioned above the Applicant initially submitted that the date of dismissal was 20 September 2016 and later submitted that it was 29 September 2016. In his outline of argument, the Applicant stated that he believed that his application was made within time.

[23] I am not satisfied that there is any reasonable explanation for the delay. His email of 29 September 2016 indicates an intention to make an application with the Commission. It appeared that the Applicant was capable of lodging the application within the prescribed period but did not do so.

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

Any action taken by the person to dispute the dismissal

[25] The parties are in dispute as to whether the Applicant resigned or was dismissed. Apart from the email of 29 September 2016 in which the Applicant requested to be paid some entitlements that he believed he was owed, the Applicant does not appear to have taken any action to dispute his dismissal prior to the making of this application.

Prejudice to the employer (including prejudice caused by the delay)

[26] On the evidence before me, I am not persuaded that the Respondent would suffer prejudice if the extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[27] The Applicant made allegations that he was demoted to a lower position whilst on sick leave and he was discriminated against because of his age. The allegations were strongly disputed by the Respondent.

[28] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[29] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm² considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’³

[30] There were no submissions or evidence that there were any persons in a similar position and I find it to be a neutral consideration.

Conclusion

[31] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[32] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

M Sternberg on his own behalf.

J Souter for the Respondent.

Hearing details:

2016.

Sydney and Melbourne (by telephone):

November 4.

1 [2011] FWAFB 975.

2 [2015] FWC 8885.

3 Ibid at [29].

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