Mathew Sternberg v The Wolf and I (James Hospitality Investments)

[2019] FWC 8109

[2019] FWC 8109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mathew Sternberg
v
The Wolf and I (James Hospitality Investments)
(C2019/3901)

DEPUTY PRESIDENT YOUNG MELBOURNE, 28 NOVEMBER 2019

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

[1] This decision concerns an application by Mr Mathew Sternberg 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] Mr Sternberg was employed by the Respondent company in the position of Head Chef. Mr Sternberg’s employment ended on 16 May 2019. His application was not lodged until 23 June 2019. The period of 21 days ended at midnight on 6 June 2019 and the application was therefore lodged 17 days out of time. Mr Sternberg seeks that the Commission allow a further period for the application to be made. The company opposes the grant of an extension of time.

[3] On 31 October 2019 I conducted the proceeding by way of determinative conference. Mr Sternberg appeared on his own behalf. Mr Allan Sternberg, Mr Sternberg’s father, also gave evidence for Mr Sternberg. Mr Simmonds appeared on behalf of the company.

Background

[4] On 10 July 2019 I issued Directions for the filing of materials, requiring Mr Sternberg to file his materials by no later than 5pm on Tuesday, 23 July 2019. No materials were received from Mr Sternberg by this time. My associate wrote to Mr Sternberg on 25 July 2019 noting that he had not filed submissions, requiring that he file them as a matter of urgency and advising that if no materials were filed by him by close of business Friday, 26 July 2019 the matter would be listed for Mention.

[5] On 25 July 2019 Mr Sternberg sent an email (25 July Email) to my chambers stating that he was homeless, had no income, his brother had just had a ‘life saving operation’ and requesting that he be contacted on a different telephone number to that which was on his application form (New Number).

[6] In light of the 25 July Email, my associate attempted to contact the Applicant on the New Number on 26 July 2019 with no success, however left a voicemail advising that information would be emailed to him. An email was subsequently sent to Mr Sternberg from my chambers on 26 July 2019 advising that it is his responsibility to ensure he files materials when directed to do so, providing details of Community Legal Centres, and advising that enquiries had been made as to the possibility of him receiving assistance through the Commission’s Workplace Advice Service (WAS). The email also vacated my Directions of 10 July 2019, cancelled the hearing date of 22 August 2019 and advised that a Mention would be listed by telephone which he would be required to attend. The 25 July Email also requested that Mr Sternberg advise of the best way for the Commission to send documents and information to him.

[7] On 29 July 2019 my associate attempted to contact Mr Sternberg via telephone with no success. My associate left a voicemail advising that assistance through the WAS had been arranged, however further information was required from Mr Sternberg to confirm an appointment. Mr Sternberg did not return the call.

[8] On 1 August 2019 I conducted a Mention hearing in the matter. My associate attempted to contact Mr Sternberg twice on the New Number and a further two times on the number provided in his application form. On each occasion my associate left a voicemail requesting that Mr Sternberg urgently return the call and warned that if he did not return the call, the Mention would proceed in his absence. Mr Sternberg did not return the calls and as such, the Mention proceeded in his absence.

[9] On 5 August 2019, I reissued Directions requiring that Mr Sternberg file his materials by no later than 5pm on Monday, 19 August 2019. Mr Sternberg again did not file any materials in accordance with these Directions. On 21 August 2019 my associate emailed Mr Sternberg requesting that he file his materials as a matter of urgency and advising that if he did not file materials, the matter would proceed based on the materials provided in his application and any submissions filed by the company.

[10] My associate attempted to call Mr Sternberg on 26 August 2019 regarding his overdue submissions with no success and left a voicemail requesting that he call back urgently. On 30 August 2019 Mr Sternberg left a voicemail for my chambers advising of another new contact number. Later that day, my associate returned Mr Sternberg’s call. Mr Sternberg advised my associate that he had been homeless and hadn’t had access to his phone or email and had purchased a phone off eBay which had been hacked, however he was now getting on top of all of his emails. Mr Sternberg told my associate that he would try to file his materials as soon as possible. My associate asked that Mr Sternberg send an email to chambers, ideally that day, copying in the company, requesting additional time to file submissions and explained that any additional time granted would likely delay the hearing.

[11] On 5 September 2019 Mr Sternberg wrote to my chambers, copying in the company, providing an explanation for the delay in lodgement and advising that further materials would be filed. On 6 September 2019 my associate wrote to the parties providing Mr Sternberg until 5pm Monday 9 September 2019 to provide any further submissions upon which he sought to rely and adjourning the hearing further to 18 October 2019. Mr Sternberg filed additional material on 5, 6, 9 and 18 September 2019.

[12] Amongst Mr Sternberg’s submissions were numerous medical documents spread across numerous emails (Medical Material), some copying in the company and others not. My associate wrote to and called Mr Sternberg requesting that he provide a copy of the Medical Material to the company. Mr Sternberg attempted to do this over a number of emails however sent these emails to an email address different to that held on file by the Commission. My associate left a voicemail for the company requesting that it call back to confirm that it had received a copy of the Medical Material, however no return call was received.

[13] On 24 September 2019 the matter was listed for Mention to occur on 26 September 2019. My associate attempted to call Mr Sternberg to advise him of the listing, however Mr Sternberg did not answer. A voice-to-text was left requesting that he call back. A follow up email was sent to Mr Sternberg on 25 September 2019 requesting that he confirm his attendance at the Mention. At the commencement of the Mention on 26 September 2019 my associate attempted to call Mr Sternberg 3 times with no success and on each occasion left a voice-to-text message requesting that he urgently call back. The Mention proceeded in Mr Sternberg’s absence. During the Mention the company advised that it had not received the Medical Material. Subsequently, my associate attempted to email the Medical Material to the company however the attachments were too large to send. My associate then sent the Medical Material to the company via express post on 26 September 2019. Tracking records indicate that these documents were delivered on 30 September 2019.

[14] Following the Mention, the matter was adjourned to 31 October 2019.

Consideration

[15] 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

[16] 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 (Nulty) 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

[17] 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

[18] 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

[19] Mr Sternberg provided a multitude of reasons for the delay in lodgement. They are, in summary, a range of illness and health issues, financial distress following the loss of his job, the breakdown of his car, his lack of internet access and reliance on his mobile phone which broke some 3 or 4 days after the termination of his employment, the purchase online of a replacement mobile phone which was corrupted and locked him out of all of his accounts, homelessness following being given notice to vacate his rental property and the serious illness of his younger brother who required liver transplant surgery and the earlier lodgement of his incomplete application.

[20] In his materials Mr Sternberg says he originally attempted to lodge his application by email on 5 June 2019 but was advised by the Commission that “the attachments were missing.” 8A search of the Commission’s files indicates that on 6 June 2019 at 4.06 am the Commission received an email from Mr Sternberg, attached to which were six image files. These files contained a number of handwritten pages, of which at last one is a duplicate. They did not contain a general protections application form, do not identify a respondent or a termination date. At 10.34 am that day the Commission wrote to Mr Sternberg and advised that his email did not constitute a valid application. The Commission also advised Mr Sternberg to contact the Commission urgently if he wished to lodge an application and provided a link to the Form F8. At 5.04 pm Mr Sternberg sent a further email to the Commission which contained images of pages 6, 7 and 8 of the Form F8 and a fee waiver application form but again was incomplete. In particular, the material transmitted did not identify a respondent or a termination date. No further correspondence was sent by the Commission to Mr Sternberg, who ultimately lodged his application on 23 June 2019. I return to this matter below. I note that had Mr Sternberg submitted a complete application on 6 June 2019 it would have been lodged in time.

[21] Mr Sternberg says that he was “pretty ill” for a week after the dismissal as he had influenza and was very upset from his dismissal. 9 He also says he was suffering bad nerve pain from previous shingles, cluster migraines and chronic sinusitis, which left him homeless in the previous year.10 In support of these grounds Mr Sternberg filed the following medical material:

•  Consultation Notes from a consultation with Dr Liley (Consultation Notes), dated 28 March 2019;

•  Consultation Notes dated 23 May 2019;

•  Consultation Notes dated 27 June 2019;

•  Referral from Dr Liley to Mr Simon Nudds, Psychologist, dated 27 June 2019; and

•  Mental Health Care Plan and Review completed by Dr Liley, dated 27 June 2019.

[22] The Consultation Notes from 28 March 2019 (28 March Notes) record that Mr Sternberg had a past history of shingles, stated to be “2-3 yrs ago”, and attended Dr Liley on that date due to migraines. In that consultation he was prescribed Diazapam.

[23] The Consultation Notes from 23 May 2019 (23 May Notes), 7 days after the termination of his employment, contain the following entries:

“feeling unwell and devastated… lots of financial stressors… recurrent neuropathic type pain, worse with LTRI type pain, thought there was going to be a recurrent shingles… recognised feeling paranoid”.

[24] The 23 May Notes record the reason for Mr Sternberg’s consultation with Dr Liley that day as being “Acute stress reaction” and note that Mr Sternberg’s employment had been terminated the previous Thursday. They also provide an assessment of Mr Sternberg as “agitated and despondent”. At this consultation Mr Sternberg was again prescribed Diazapam. The 23 May Notes state that the next review appointment is to be 3 June 2019, however, notes from this consultation, if it occurred, have not been provided. The next notes provided are from a consultation on 27 June 2019 (27 June Notes). These notes post-date Mr Sternberg lodging his application.

[25] The 27 June Notes contain the following entry:

“ongoing acute stressors with job loss and financial strain…”

They state the reason for the consultation as being “Depression, Acute stress reaction” and provide an assessment of “depression likely”. Mr Sternberg is again prescribed Diazapam and is also referred to Mr Nudds. In that referral Dr Liley states that Mr Sternberg is “having a significant stress response with disassociation symptoms and withdrawal behaviours.” The Mental Health Care Plan and Review completed by Dr Liley on that date (MHCP) states that Mr Sternberg presented with “depressive symptoms – acute response to stressful situation”.

[26] The Medical Material filed by Mr Sternberg does not indicate that following his dismissal he had influenza, migraines, shingles or sinusitis. Firstly, there is no reference in any of the Medical Material to influenza or sinusitis. Secondly, the only reference to migraines and cluster migraines is in the 28 March Notes. This consultation occurred approximately 6 weeks prior to the termination of Mr Sternberg’s employment and cannot therefore provide an explanation for the delay in lodgement. Thirdly, the 28 March Notes state that Mr Sternberg had shingles some 2-3 years ago. Mr Sternberg’s evidence at the determinative conference was consistent with this. I note that although the 23 May Notes make reference to neuropathic type pain and a belief by Mr Sternberg that he thought he was going to have a recurrence of shingles, there is no diagnosis of shingles at any point. Further, there is no indication that Mr Sternberg sought or was given treatment for nerve pain at any time prior to lodging his application. In this context I note that the reason for the 23 May 2019 consultation was stated as “acute stress reaction.” Accordingly, shingles or nerve pain also cannot provide an explanation for the delay in lodgement.

[27] Mr Sternberg says that he was very upset by the termination of his employment. Stress and upset following the termination of one’s employment is both a common and understandable reaction. In the 23 May Notes, 7 days after the termination of Mr Sternberg’s employment, Dr Liley states that the reason for Mr Sternberg’s visit is an acute stress reaction to the termination of his employment. His assessment of Mr Sternberg at that time is that he was agitated and despondent. These are the only consultation notes that post-date Mr Sternberg’s termination of employment and pre-date 23 June 2019, being the date upon which Mr Sternberg lodged his application. I note that the medication prescribed at that time was a continuation of the medication prescribed in March 2019 prior to Mr Sternberg’s termination of employment. The 27 June Notes confirm that Mr Sternberg continues to present with ongoing acute stress. Although those notes contain a diagnosis of likely depression, they do not go so far as to diagnose Mr Sternberg with depression. Further, these notes and this possible diagnosis post-date the lodgement of Mr Sternberg’s application.

[28] I accept that Mr Sternberg was indeed upset and stressed following the termination of his employment. However, there is no medical evidence before the Commission that Mr Sternberg’s stress reaction to the termination of his employment was such as to render him incapacitated or was such as to preclude him from lodging his application on time or at any time during the period of the delay. Further, as set out above, Mr Sternberg did attempt to lodge materials on 6 June 2019. It therefore cannot be that his mental health condition at that time precluded him from doing so. Accordingly, in my opinion, on the basis of the medical evidence before the Commission, Mr Sternberg’s stress and upset following the termination of his employment does not provide an explanation for the delay in lodgement.

[29] As to the assertion that Mr Sternberg suffered financial distress following the termination his employment, Mr Sternberg provided no documentary evidence in support of this financial distress. Further, in my view, although regrettable, financial distress following the loss of one’s employment and the consequent loss of income cannot be said to be uncommon or special or unusual.

[30] In relation to Mr Sternberg’s assertions that he had no internet access, he says he was reliant on his mobile phone for internet access and that his phone broke approximately 3 to 4 days after his termination of employment. He also says that his replacement phone was corrupted and locked him out of all of his accounts. Whilst I accept Mr Sternberg’s evidence that his phone broke in the week following his termination of employment, I note that Mr Sternberg did forward material to the Commission (albeit incomplete) on 6 June 2019 via email. He therefore had internet access, in some form, at that time. Mr Sternberg also gave evidence that his replacement phone took 5 or 6 weeks to arrive. Accordingly, whatever issues Mr Sternberg may have had with his replacement phone, given the time it took to be received and noting that Mr Sternberg lodged his application on 23 June 2019, it is difficult to see how this could be a reason for the delay. Further, Mr Sternberg gave evidence that he filed his application on 23 June 2019 using a friend’s mobile telephone. In such circumstances, it is difficult to see why he could not have used this mode of lodgement at an earlier date, most particularly in light of his evidence that he was at the time of his dismissal sharing a house with two others.

[31] As to Mr Sternberg having to vacate his rental property and subsequent homelessness, his evidence at the determinative conference was that he was provided with an additional five week period to vacate after the initial notice to vacate was given and, ultimately, was not required to vacate his premises until late August/early September 2019. Accordingly, this and his alleged subsequent homelessness cannot provide an explanation for the delay.

[32] As to the breakdown of his car and how that affected his ability to lodge his application on time, Mr Sternberg gave evidence that the absence of a car left him “stranded in his house” without communication and, I infer, without internet access. However, as set out above, Mr Sternberg did lodge materials via email on 6 June 2019 and subsequently lodged his application using a friend’s mobile telephone on 23 June 2019. Accordingly, in these circumstances it is difficult to see how the breakdown of his car can be an explanation for the delay in lodgement.

[33] As to his younger brother’s health, Mr Sternberg says he went home to Ballarat on 16 May 2019 after his dismissal and upon arriving in Ballarat discovered that his parents had travelled to Melbourne to be with his brother who had been admitted to hospital. Mr Sternberg called his father to give evidence regarding his younger brother’s illness. Mr Allan Sternberg gave evidence that Mr Sternberg’s brother became ill and was admitted to the Austin Hospital in early July 2019, with surgery being undertaken on 15 July 2019, following which, regrettably, there have been post-surgery complications. Mr Allan Sternberg’s evidence is therefore inconsistent with Mr Sternberg’s evidence as to when his brother was admitted to hospital. I prefer the evidence of Mr Allan Sternberg on this point for the following reasons. Firstly, Mr Sternberg, when asked to provide further details reading the timing of his brother’s illness and admission to hospital, called Mr Allan Sternberg to give evidence. Secondly, Mr Allan Sternberg attended Mr Sternberg’s younger brother when he was admitted to hospital and therefore gave direct evidence about this matter. Thirdly, Mr Sternberg gave evidence that he was unaware of his brother’s admission to hospital at the time it occurred. Accordingly, I find that Mr Sternberg’s younger brother was admitted to hospital in early July and had surgery on 15 July 2019. Mr Sternberg submitted that his brother’s illness alone was sufficient to constitute exceptional circumstances. Whilst I have no doubt that this was a very stressful and worrying time for the family, on the basis of my findings set out above, Mr Sternberg’s brother was admitted to hospital in early July 2019, after Mr Sternberg lodged his application. Further, Mr Sternberg’s own evidence was that he was unaware of his brother’s hospitalisation at the time at which it occurred. Accordingly, Mr Sternberg’s younger brother’s health cannot provide an explanation for the delay.

[34] Whilst I accept that there have been a number of challenging circumstances in Mr Sternberg’s life in recent times, on the material and evidence before the Commission, in my opinion, the above matters do not provide an explanation for the delay in lodgement noting, in particular, that although the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay, the period I must consider 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.

Action taken by the person to dispute the dismissal

[35] Mr Sternberg says he was dismissed by Mr Murphy, the then General Manager, at the start of his shift on 16 May 2019, which he says was at around 3 pm. He says he disputed his dismissal verbally with Mr Murphy at that time and requested it be put in writing. He says this was refused. Mr Sternberg says he then went home and wrote an email to the company further disputing his dismissal (Email). Mr Murphy was not called to give evidence and Mr Simmonds’ evidence is that Mr Murphy is no longer employed by the company. However, Mr Simmonds, who was not present during the conversation between Mr Sternberg and Mr Murphy, says that he was informed by Mr Murphy that Mr Sternberg was understanding of his dismissal, shook hands with Mr Murphy and left the venue. 11 In the absence of evidence from Mr Murphy, I accept the evidence of Mr Sternberg on this point. However, as the Email was in evidence before the Commission12 ultimately nothing turns on the content of the conversation between Mr Murphy and Mr Sternberg.

[36] The Email is from Mr Sternberg to [email protected]. I note that this is not the company’s email address held on file by the Commission. However, the company made no submissions regarding this point nor raised any objection to the Email. The Email’s title starts “confusion about my position and/or unfair dismissal” and concludes with “I’m really confused and am speaking with fair work and lawyers to resolve this issue.” The Email is time stamped 8.17 am on 16 May 2019. The time stamp on the Email therefore does not reconcile with Mr Sternberg’s evidence that he was terminated at the start of his shift on 16 May 2019, at around 3 pm. In response to a question from the Commission as to this, Mr Sternberg’s evidence was that the time stamping of emails on his Hotmail account is incorrect. This was not contested by the company. I accept Mr Sternberg’s evidence as to when the email was sent. Accordingly, whatever may have been the content of the conversation between Mr Sternberg and Mr Murphy at the time of his dismissal, I find that Mr Sternberg did contest his dismissal via email later that day. This weighs in favour of the granting of an extension of time.

Prejudice to the employer

[37] Mr Sternberg submits that there is no prejudice to the company. The company says it will be prejudiced if an extension of time is granted to Mr Sternberg.

[38] Firstly, the company says that Mr Murphy, the manager who was involved in and effected Mr Sternberg’s dismissal, is no longer employed by the company. It says that Mr Murphy received the complaints against Mr Sternberg and advised him of his termination, although Mr Simmonds says he was the decision maker. Mr Sternberg says that Mr Murphy told him he was being terminated because he had taken sick leave. I infer from this that the company’s position is that in the absence of being able to call upon Mr Murphy to give evidence as to these matters it will not be able to properly defend Mr Sternberg’s claim should an extension of time be granted. Whilst it may be inconvenient that Mr Murphy is no longer employed by the company, the company did not submit that Mr Murphy was uncontactable or, indeed, even unavailable to give evidence. Further, there are mechanism available to the company to compel Mr Murphy to give evidence if necessary. Accordingly, without more, I do not consider that Mr Murphy no longer being employed by the company accrues any particular prejudice to it.

[39] Secondly, it says that Mr Hobbs was one of the employees who made complaints about Mr Sternberg’s conduct that led to Mr Sternberg’s dismissal, as well as being his main point of contact within the company. The company say that post the termination of his employment Mr Sternberg has made threats by text and telephone against Mr Hobbs and subjected him to homophobic abuse. They say that Mr Hobbs is fearful of Mr Sternberg and is unwilling to give evidence against Mr Sternberg as a consequence. In support of these claims the company relied upon a statutory declaration by Mr Hobbs, dated 30 October 2019, in which he declares that he refused to attend the determinative conference because of threats via text and telephone made against him, and homophobic comments directed towards him, by Mr Sternberg. Mr Hobbs declares that it is against his best interests to risk his safety to answer Mr Sternberg’s claims by attending the Commission. Attached to Mr Hobbs statutory declaration are two texts that he says were sent to him by Mr Sternberg. The texts are not dated and Mr Hobbs does not declare as to when they were received. The sender of the texts does not identify themselves. Mr Hobbs does not declare as to how he says he determined that the texts were from Mr Sternberg. Mr Sternberg denies sending the texts and says further that he does not recognise the mobile number from which they are sent. He did not however object to the Commission receiving Mr Hobbs’ statutory declaration.

[40] The allegations made against by Mr Hobbs are serious. However, in the absence of Mr Sternberg having an opportunity to cross examine Mr Hobbs and any evidence as to when the texts were received by Mr Hobbs and how he is able to identify that they were from Mr Sternberg, I make no finding as to whether Mr Sternberg engaged in the behaviour alleged. Further, for the following reasons I do not consider this matter, properly considered, goes to the question of prejudice to the employer, including prejudice from the delay. Firstly, it is alleged that Mr Hobbs made a complaint about Mr Sternberg’s behaviour and was Mr Sternberg’s main point of contact. There is no evidence of other involvement by Mr Hobbs in Mr Sternberg’s dismissal. Importantly, on the evidence before me, he was not the decision maker or involved in the decision making process. Secondly, there is no evidence as to when the texts were sent or received. There is therefore no connection between the texts and the delay in lodgement and any prejudice that might accrue to the employer from that delay. Finally, in my view, the mere fact of a matter proceeding, including potentially to hearing, is not sufficient to establish prejudice.

[41] Accordingly, in the present circumstances, I consider this to be a neutral consideration.

Merits of the application

[42] 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.

[43] Mr Sternberg 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.

[44] Mr Sternberg primarily says that adverse action in the form of dismissal was taken against him because he exercised his workplace right to take sick leave and/or because he was temporarily absent from work. He also says that following raising matters to do with his hours of work and pay rates, he was subject to negative treatment and impossible job demands were made of him. Accordingly, whilst not expressly submitted, it appears from the material that Mr Sternberg also alleges adverse action in the form of prejudicial alteration to his position and/or injury in his employment because he exercised a workplace right to be paid for work performed or, alternatively, because he made a complaint or inquiry regarding his hours of work and pay rate.

[45] There is no dispute that the company dismissed Mr Sternberg. Accordingly, it is uncontested that adverse action, in the form of dismissal, was taken against Mr Sternberg. The company says, however, that it terminated Mr Sternberg’s employment as a consequence of complaints regarding his conduct by other employees and poor performance. It denies it took adverse action against Mr Sternberg because he took sick leave or because of any temporary absence or as a consequence of Mr Sternberg raising issues regarding his hours of work and/or pay. It denies that Mr Sternberg worked the hours contended by him and says it has an electronic system for employees to clock on and off which does not support Mr Sternberg’s asserted hours of work.

[46] On the material before me Mr Sternberg’s claims appear at least arguable. However, given the interlocutory nature of these proceedings it is not possible to form a concluded view as to the merits of the application. The evidence of Mr Sternberg and the company would need to be fully tested under oath. Accordingly, I consider the merits to be a neutral consideration in the present circumstances.

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

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

Conclusion

[48] 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.

[49] Having regard to all of the matters I am required to take into account under section 366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist.

[50] Accordingly, I decline to grant an extension of time for the filing of the application under section 366(2). Mr Sternberg’s application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

M Sternberg on his own behalf.

A Simmonds for the Respondent.

Hearing details:

2019.

Melbourne:

October 31.

Final written submissions:

Applicant, 18 September 2019

Respondent, 31 October 2019

Printed by authority of the Commonwealth Government Printer

<PR714710>

 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   Exhibit A1, Handwritten attachment dated 21 June 2019

 9   Ibid

 10   Ibid

 11   Exhibit R1 at question 5.1, Exhibit R2 at question 1e

 12   Exhibit A3