Michael Blair v D & K Golding Pty Ltd T/A Red Hill Brewery

[2014] FWC 5207

[2014] FWC 5207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Michael Blair
v
D & K Golding Pty Ltd T/A Red Hill Brewery
(C2014/4267)

COMMISSIONER WILSON MELBOURNE, 1 AUGUST 2014

Application to deal with contraventions involving dismissal - jurisdictional objection - whether extension of time should be granted

Background

[1] Michael Blair filed an application for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Dr Blair’s application relates to the termination of his employment by D & K Golding Pty Ltd, trading as Red Hill Brewery during April 2014, and was received by the Commission on 29 April 2014.

[2] The contest between the parties involves a requirement for me to determine the date on which termination took place; and, depending upon the determination, to consider whether or not an extension of time for the making of an application is required.

[3] Section 366 of the Act provides that an application under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

[4] Red Hill Brewery contends that Dr Blair’s termination of employment took effect on 1 April 2014. If that is the case, his application will be out of time and it will be necessary for the Commission to give consideration to whether or not a further period should be allowed to Dr Blair for the making of his general protections application. If Dr Blair’s employment was terminated on 1 April 2014, his application would need to have been made to the Commission no later than 22 April 2014 in order for it to be within time.

[5] On the other hand, Dr Blair contends that his termination of employment took effect on 8 April 2014. If that is the case, a question of an extension of time does not arise for the reason that a general protections application made on 29 April would be within the 21 days allowed in s.366 of the Act for the making of a general protections application involving a dismissal dispute.

[6] A conference of the parties pursuant to s.368 of the Act was held by me on 10 June 2014, however the conference did not resolve the dispute between the parties. The conference was held without prejudice to the Red Hill Brewery’s jurisdictional objection that Dr Blair’s application was made outside of the 21 day period allowed for in s.366. For the reason that the parties provided only very basic submissions in response to the Directions issued by me for the determination of the matters that are the subject of this decision, it is necessary for me to rely upon matters discussed by them in the conference.

[7] The circumstances of Red Hill Brewery terminating Dr Blair’s employment include the following;

• Dr Blair was originally approached for employment by Red Hill Brewery some time prior to the actual commencement of employment, which was 24 February 2014. He was employed to undertake work associated with the operations of the microbrewery. These duties included operating the brewing and bottling equipment. At the time the Red Hill Brewery was undertaking a project to expand its plant and the project was taking longer to complete than the owners either wanted or expected. It was not until the end of February 2014 that the owners, Mr and Mrs Golding, were sufficiently comfortable to commence Dr Blair’s employment.



• In the conference before me on 10 June 2014, Mrs Golding described the company’s business as brewing, bottling and selling beer from its premises in Red Hill on the Mornington Peninsula. The business is very small. Apart from the labour of the owners, the business employs a head brewer and there are only one or two other staff employed at any one time, including Dr Blair. Some of the additional employees work casually only for a few hours each week.



• In the conference, Mrs Golding indicated that the upgrade project had taken a lot longer than she or her husband expected, which had a significant effect upon the businesses’ cash flow. As perhaps would be expected, the business relies upon a strong trade over the warmer months and because the new plant had not become available to the business until well into 2014, it meant that the company was not able to benefit from increased brewing capacity during the 2014 summer, even though it continued to wear the costs of operating its business and undertaking the plant expansion.



• Dr Blair has submitted that his dismissal stemmed from a safety concern he held associated with the brewing plant and which he communicated to the owners of Red Hill Brewery the day before he was notified of his dismissal. The company’s plant involves numerous pieces of machinery including one or more pressurised fermentation vessels. The fermentation vessel is a pressure vessel for the purposes of workplace health and safety laws, which require the design and operation of the vessel to be compliant with various enforceable obligations. In the course of operating one of the fermentation vessels on 31 March 2014, Dr Blair noticed that the plant “failed to relieve today at approximately 3:00 PM whilst carbonation was in place” 1. As a result of noticing this problem, Dr Blair wrote to Mr David Golding on the same day at 6:45 PM. The correspondence from Dr Blair raised some matters about certification of the pressure vessels, their Worksafe registration and insurance status and identified the problem to Mr Golding as a safety concern requiring “urgent engineering attention”. The correspondence concluded that Dr Blair would abstain from using the equipment until remedial action had been taken.



• At the relevant time Mr and Mrs Golding were away on holiday.



• Chronologically, the next thing that occurred was that Dr Blair was sent an email by Mr Golding that set out a number of things, but most significantly that Dr Blair was to be dismissed. The email is contained within Dr Blair’s application and is dated 1 April 2014 at 3:53 AM. While I do not have evidence before me about whether this time was Australian Eastern Daylight Time or whether it was the local time of Mr Golding’s location, I was informed in the course of the conference that the email was received by Dr Blair shortly after waking on 1 April 2014 at around 6:30 AM. The email sets out following;




“Hi Michael,

Karen and I have been looking at the financial status of the business, and I regret to inform you that I have to let you go.

The expansion of the brewery and related works have taken far longer than expected, and the necessary sales to fund your role has not been possible due to the shortfall in beer availability.

Unfortunately, this impacts on the financial viability of the business, meaning that I will need to step back in as brewer for 6 months to a year to ensure the business is viable.

As per your letter of appointment, either party can choose to terminate the agreement within the first 3 months.

I am giving you 1 weeks notice, you can choose to work through to Tuesday the 8th, if you choose not to work till then, to you are welcome to leave any day prior to then, and will be paid up until the 8th.

From tomorrow, please hand your keys to Simon.

Gulia will be pay you all outstanding wages and holiday pay till Tuesday 8th.

I regret having to write this letter, I have made a bad business planning financial decision by starting you when I did, and underestimated the timelines for the install of the new equipment and the shortfall of beer available to sell in the intermin.

If you'd like to discuss this with me, we can make a time to do that. Either now, via phone or skype, or when I'm back in Australia. Let me know a convenient time.

Good luck in the future with your career, I will ask simon to put together a reference for you if you'd like.

Yours sincerely

Dave Golding” 2

• The reference in the above email to “Simon” is to the head brewer. After receiving the email, Dr Blair went to work on 1 April and spoke with Simon. Dr Blair says he was at the premises for about half an hour and that he told Simon he would finish that day and not work further.



• While Dr Blair did not perform further work at the Red Hill Brewery, his employment separation certificate refers to 8 April 2014 as the date on which employment ceased.



• Mrs Golding explained in the conference that the reason the employment separation certificate refers to a termination date of 8 April 2014 was because the completion of the form was left to the company’s administration officer because both Mr and Mrs Golding were absent from Australia, and that person made a mistake. Mrs Golding submits that the company’s payroll cycle means that Dr Blair was not paid his final payment until 7 April and that in any event he did not attend work after 1 April.

[8] The submissions and evidence before me in relation to these matters are only basic, however I consider it to be more likely than not that the date on which Dr Blair’s dismissal took effect was 1 April 2014, upon receipt of the email from Mr Golding and after discussion that morning with Simon, the head brewer, when the two mutually agreed Dr Blair should finish that day. I am satisfied from the explanation given by Mrs Golding that there was not an intention on the part of Red Hill Brewery to delay, for any reason, the date upon which termination of employment took effect.

[9] I find therefore that the date on which Dr Blair’s dismissal took effect was 1 April 2014.

[10] As a result of this finding, it is necessary for me consider whether I should grant Dr Blair an extension of time for the making of a general protections application alleging contraventions involving a dismissal. This question arises because such an application would need to have been made to the Fair Work Commission no later than 22 April 2014 in order for it to be within the 21 day period allowed for in s.366(1). Since the application was actually made on 29 April 2014, it was made seven days outside of the time period allowed for within the Act.

[11] Red Hill Brewery opposes the granting of an extension of time on the basis that no exceptional circumstances exist.

[12] For the reasons set out below, I do not consider there are exceptional circumstances within the meaning of s.366 (2) and accordingly I do not allow a further period for the making of Dr Blair’s application.

Legislative scheme

[13] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:

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.

[14] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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”.  3

Consideration

[15] I turn to consider each of the criteria set out in subsection 366(2) of the Act.

The reason for the delay

[16] Dr Blair puts forward two reasons for his application being late.

[17] Firstly he relies upon the question of the date when his dismissal took effect which is referred to in detail above, with him submitting 8 April 2014 is the date from which the 21 day period should be counted.

[18] Secondly, he puts forward that he sought advice from JobWatch and did not receive advice from that agency until 8 April 2014 when his email was responded to through a telephone call. Dr Blair then advances that “[d]ue to the seriousness of this claim, some time was required to consult family members on the merits of bringing this case before the Fair Work Commission.” 4 In relation to his approach to JobWatch, I take into account that Dr Blair puts forward that he first approached the agency on 4 April 2014, which is a date preceding the date he puts forward as the date of termination of employment.

[19] In forming a view about whether there are exceptional circumstances that would allow a further period for the making of an application, I am required to consider whether there is a credible reason for the whole of the delay in making the application 5. A partial period of the longer whole period in which an applicant is capable of making enquiries about their rights, following the advice received, or interacting with their former employer by email and raising queries with them, may be reason not to accept the reason put forward by an applicant as the reason for whole of the delay in making an application.6

[20] After considering the submissions put forward by the Applicant as well as the Red Hill Brewery, I am not persuaded that Dr Blair puts forward a credible reason for the whole of the period that his application was delayed. Although I accept that he consulted an adviser and his family about the situation, he does not put forward a perspective that would explain the whole period of the delay between the date of dismissal (irrespective of whether it was 1 or 8 April 2014) and the making of the application on 29 April 2014. Having received advice from JobWatch, which appears to have been around 8 April 2014, and even allowing for the public holidays which occur in April, an explanation is not put forward as to why there was not a more timely application to the Fair Work Commission.

[21] On balance, I consider this criterion to be weighted against the applicant and in favour of Red Hill Brewery.

Any action taken by the person to dispute the dismissal

[22] The only evidence I have before me that Dr Blair disputed his dismissal is the contact with JobWatch that he puts forward as having taken place in early April 2014. The information before me does not indicate other endeavours on the part of Dr Blair to dispute his dismissal.

[23] It is well established, in the context of unfair dismissal applications, that action taken by an employee to contest their dismissal, other than lodging a dismissal application, may favour granting an extension of time. 7 This is for the reason that;

“Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.” 8

[24] I consider this principle has application to the consideration of a grant of further time for making a general protections application.

[25] After consideration of the material before me, which goes only to Dr Blair’s contact with JobWatch and consultation with his family, I consider this criterion to be neutrally weighted, for the reason there was no apparent contact by him with Red Hill Brewery in order to actively contest his dismissal.

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

[26] In the event that an extension of time is granted to Dr Blair, the prejudice to Red Hill Brewery will be principally the prejudice of the elapsed time between the date on which the termination of employment took effect and the date on which the application was made. The Red Hill Brewery do not argue any specific issues of prejudice. As a result I consider this criterion to be neutrally weighted; that is the accounts are neither in favour of the Applicant, Dr Blair, or the Respondent, Red Hill Brewery.

The merits of the application

[27] Although the merits of Dr Blair’s application have connection to the statutory requirements of the general protections provisions, I consider that, on balance, Red Hill Brewery would likely be able to satisfy the Commission that their decision making was not in breach of the Fair Work Act 2009.

[28] While it is of course the case that Red Hill Brewery will have the onus of proof to show that any adverse action taken against Dr Blair was not for a prohibited reason, the onus may be discharged with direct testimony from the decision-maker which is accepted as reliable 9. In this regard, the Red Hill Brewery put forward essentially that Dr Blair’s dismissal is a matter of unfortunate timing; that it was in the process already of moving to terminate him because the brewery was a small business and could no longer afford to employ him because of the time and cost overruns experienced with the new plant.

[29] The material before me leads to an acceptance of the view put forward by the company that its decision-making was motivated by cost and was already in the course of execution when Dr Blair sent his email on 31 March 2014. In this regard the Red Hill Brewery submitted that the brewery upgrade project ran three months over time; that sales were down during the summer period by nearly 50% when compared with the budget; and that the upgrade project was significantly over its budgeted cost. The company submits about its financial position;

“By mid March we were unable to fund the role, as our sales were down substantially and there was minimal cashflow, big bills, and there was no beer available to sell.

We had decided to make the applicants role redundant, and we had drafted an email to him, to inform him of the redundancy at the start of the working week (31st March) with one weeks notice.” 10

[30] In relation to the company’s timing of its decision to dismiss, Mrs Golding put forward in the conference that even before Dr Blair sent his email on 31 March 2014, the company had been searching for an alternative employee who could work different hours to Dr Blair. The company’s employer response form set out a series of text messages between Mrs Golding and another person, apparently about the subject. The text messages appear to be about an hour or so prior to the time at which Dr Blair sent his email to Mr Golding.

[31] I take into account that Dr Blair’s apprehension of a safety problem with the fermentation vessel was honestly held and communicated. However in discussing this with Dr Blair in the conference on 10 June 2014 he did not put forward that the problem he complained of was so grave as to represent an imminent danger to safety. Rather I understood him to say that the problem was one that occurred periodically with pressure vessels, which is why they have pressure gauges in order to inform users about the pressure they are experiencing, and one which reasonably ought be fixed, albeit as quickly as possible.

[32] In considering all of the material before me, I am satisfied that Dr Blair’s application has merit, in as much as he indeed did make a complaint about safety and it would reasonably have been apprehended by an employer as such. However, I am also satisfied that the Red Hill Brewery would likely be able to demonstrate that Dr Blair was dismissed for reasons associated with a desire to reduce its cost of operations.

[33] I am therefore of the view that the consideration of the merits of Dr Blair’s application resolves more in the favour of the Red Hill Brewery that it does in favour of Dr Blair.

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

[34] The Commission’s consideration in respect of this criterion is a consideration of Dr Blair’s situation in comparison to other persons who may have been dismissed and who allege a breach of the Act’s general protections provisions.

[35] In this regard, the reasons for the delay in making an application become relevant. That is, after Dr Blair was dismissed, he sought advice from JobWatch which took a few days to obtain; and he then took a further three weeks to file his general protections application. Because there is not a strong and compelling explanation for the whole period associated with the delay in making an application, I am of the view that it would be unfair to other persons in a like position to grant an extension of time to Dr Blair when those other persons may not be able to obtain such an extension.

[36] As a result, I consider this criterion to be resolved against Dr Blair.

Decision

[37] Having considered all of the circumstances relating to Dr Blair’s application to the Commission, I am of the view there are not exceptional circumstances that would require me to allow a further period for the making of an application to the Fair Work Commission.

[38] As a result I must now dismiss Dr Blair’s application and an Order to that effect is issued at the same time as this decision.

COMMISSIONER

 1   Dr Michael Blair, General Protections Application, Appendix C

 2   Ibid, Appendix B

 3   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 4   Applicant's Submissions, 7 April 2014

 5   Cheval Properties v Smithers, (2010) 197 IR 403, at [18]; [2010] FWAFB 7251

 6   McMeeken v Action Industrial Catering, [2012] FWAFB 5933, at [7] - [8]

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, pp 299‒300

 8   Ibid, p 300

 9   Board of Bendigo Regional Institute of Technical and Further Education v Barclay, [2012] HCA 32, at [45].

 10   Employer Response Form F8A, para 1.2

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