Matthew Mulry v Matrix Freight Systems Pty Ltd T/A MTX Couriers

[2015] FWC 8855

[2015] FWC 8855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Matthew Mulry
v
Matrix Freight Systems Pty Ltd T/A MTX Couriers
(C2015/6847)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 23 DECEMBER 2015

Application to deal with contraventions involving dismissal Application to deal with contraventions involving dismissal.

[1] On 6 October 2015 Mr Matthew Mulry (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Matrix Freight Systems Pty Ltd T/A MTX Couriers (the Respondent).

[2] The Applicant commenced employment with the Respondent on 24 August 2015. He was employed as an Operations Assistant in the Respondent’s taxi-truck hire business in Victoria. He says he was dismissed on 10 September 2015, and the dismissal took effect that day.

Alleged Contravention

[3] The Applicant submits that he was dismissed because he refused to supply details about the clients of his previous employer to the Respondent. A breach of s.343 of the Act is alleged.

Respondent’s Submissions

[4] The Respondent denies that there has been any breach of the General Protections provisions of the Act. It says that the Applicant was dismissed because of performance issues and his attitude to management and other staff. In the brief time he was employed, the Applicant had a hostile attitude and was unwilling to follow directions from management, it is submitted.

Relevant Legislation

[5] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Approach of the Commission

[6] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[7] On 19 October 2015 (with an extension of time on 6 November), the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 4 December 2015.

[8] The Applicant was self-represented. The Respondent was represented by Mr M. Kustura.

Matters to be taken into account pursuant to s.366(2)

[9] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[10] The Applicant lodged five days out of time. He said that he faxed the application to the Commission on 1 October 2015. When he followed up with a phone call on 5 October, it became apparent that it had been sent to the wrong number. It was therefore filed on 6 October.

[11] The fact that the Applicant sent the application to the wrong number does not establish exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[12] There is no evidence of the Applicant disputing the dismissal apart from this application. All of the discussion appeared to be about obtaining a separation certificate.

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

[13] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) The merits of the application

[14] There is a direct conflict in the versions of events in this case. The Respondent denies that the Applicant was required to produce details of clients of his previous employer. In any event, the workplace right is not obvious.

[15] The Respondent provides details as to the Applicant’s poor attendance record, his failure to complete the tasks allocated to him and his hostile attitude to management and other staff.

[16] I do not consider that the merits of the applicant give weight to the existence of exceptional circumstances.

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

[17] This factor was not addressed and has not been taken into account.

Conclusion and Order

[18] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Matthew Mulry under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Mulry, self-applicant;

M. Kustura with M. Cianci for the Respondent.

Hearing details:

2015

Telephone Hearing:

December 4.

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