Matthews v Roy Morgan Interviewing Services Pty Ltd - [2018] FWC 7355

[2018] FWC 7355

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Craig Matthews

Roy Morgan Interviewing Services Pty Ltd

(C2018/5484)

Deputy President Colman

MELBOURNE, 11 DECEMBER 2018

Application to deal with a general protections dispute involving dismissal – extension of time – circumstances not exceptional – application dismissed.

This decision concerns an application by Mr Craig Matthews under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366 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 s 366(2).

The date that Mr Matthews’ dismissal took effect was 7 August 2018, but he did not lodge his application until 1 October 2018. The period of 21 days ended at midnight on 28 August 2018, and his application was therefore lodged 34 days out of time. He asks the Commission to allow a further period for the application to be made. His former employer, Roy Morgan Interviewing Services Pty Ltd (Roy Morgan), opposes the grant of an extension of time.

Mr Matthews’ application for an extension of time was heard before me by recorded telephone conference on 5 December 2018. Mr Matthews appeared for himself and gave evidence. Roy Morgan’s general counsel, Mr Yeatman, appeared and gave evidence for the company.

Before I deal with the specific matters that the Act requires me to take into account, I will make some brief observations about the principles that are to be applied in considering whether I should exercise my discretion to extend time. The Act allows me to extend the period within which an application under s 365 must be made only if I am satisfied that there are ‘exceptional circumstances’. The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant.[1] The meaning of this expression in the context of s 366 of the Act was considered by a 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, the 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]

In order for Mr Matthews’ general protections application to proceed, it is necessary for him to obtain an extension of time under s 366(2) to make the application. This section provides that the Commission may allow a further period for the application 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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWC 7355
Decision Date: 11 DECEMBER 2018

CaseChat Overview and Summary

The case of Matthews v Roy Morgan Interviewing Services Pty Ltd involved an application by the Fair Work Commission (FWC) to deal with a general protections dispute that arose from the dismissal of an employee, Mr. Matthews, by his employer, Roy Morgan Interviewing Services Pty Ltd. The FWC was asked to determine whether it should exercise its discretion to extend the time limit for Mr. Matthews to lodge a general protections application in light of certain circumstances that delayed the process.

The primary legal issue before the FWC was whether the circumstances that led to the delay in lodging the application were exceptional enough to warrant an extension of time. The applicant needed to demonstrate that there were significant impediments to the timely filing of the application and that the delay was not due to any fault or neglect on his part. The employer argued that the delay was not due to exceptional circumstances and that the application should be dismissed.

In its decision, the FWC examined the nature and extent of the delays and the reasons provided by Mr. Matthews for not lodging the application on time. The FWC found that while there were delays, they did not amount to exceptional circumstances as defined by the relevant legislation. The FWC concluded that the delays were not sufficiently justified and that the applicant had not shown any significant impediments that prevented him from lodging the application within the prescribed time. Therefore, the FWC dismissed the application for an extension of time. This decision reinforces the principle that the FWC will not extend time unless there are truly exceptional circumstances involved.

Orders