Michael Burstein v AHG Services (WA) Pty Ltd T/A Nuford Wangara

[2016] FWC 1684

[2016] FWC 1684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michael Burstein
v
AHG Services (WA) Pty Ltd T/A Nuford Wangara
(C2015/8313)

DEPUTY PRESIDENT KOVACIC SYDNEY, 18 MARCH 2016

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Michael Burstein (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 28 December 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by AHG Services (WA) Pty Ltd T/A Nuford Wangara (AHG – the Respondent) on 30 November 2015 in contravention of the general protections provisions in the Act.

[2] As the application was lodged seven days outside the statutory timeframe for lodgement set out in s.366(1) of the Act, the Commission issued Directions on 20 January 2016 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[3] The extension of time issue was the subject of a telephone hearing on 8 March 2016. At the telephone hearing, Mr Burstein appeared on his own behalf, while Ms Jane McGregor, the Respondent’s Human Resources Manager – WA Operations, and Mr Cameron Hede, the Respondent’s Dealer Principal, appeared for AHG.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5] Mr Burstein commenced employment with AHG on 8 October 2014 as a Buyer in the Respondent’s Wholesale Department.

[6] Mr Burstein contended in his application that he was made redundant due to “business performance and economic downturn.” Mr Burstein further contended that AHG had failed to adhere to an agreement he reached with Mr Hede that his redundancy pay would be calculated based on his average rate of pay over the previous twelve months as opposed to his base rate of pay. More particularly, Mr Burstein contended that his dismissal was in contravention of s.340 of the Act which deals with protection related to the existence of or exercise (or otherwise) of a workplace right.

[7] AHG in its Form F8A – Response to General Protections Application denied that it had taken adverse action against Mr Burstein, contending that paying Mr Burstein’s redundancy pay at his base rate of pay did not constitute an adverse action under the Act.

[8] As noted above, Mr Burstein’s application was received by the Commission on 28 December 2015, seven days outside the statutory timeframe specified in s.366(1)(a) of the Act.

The Relevant Legislation

[9] 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.”

Whether to allow a further period for the application to be made

[10] 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

[11] Mr Burstein submitted that he did not receive any pay slip relating to his redundancy payments until 15 December 2015, two weeks after he had been dismissed and that he subsequently sought to resolve his alleged underpayment with Mr Hede. At the telephone hearing, Mr Burstein submitted that on 17 December 2015 he was advised by Mr Hede to discuss his concerns with AHG’s Human Resources area and that as at 22 and 23 December 2015 he was still trying to resolve his concerns amicably. In those circumstances Mr Burstein did not think it necessary to lodge his general protections application while efforts to resolve the matter were continuing. Further, Mr Burstein conceded at the telephone hearing that he was not aware of the 21 day timeframe for lodging a general protections application and only became aware of the timeframe when he came to prepare and lodge his application.

[12] AHG contended that Mr Burstein had failed to outline sufficient or credible reasons for the delay in lodging his application, adding that Mr Burstein had received his pay slip on 15 December 2015 which was six days before the 21 day period expired.

[13] Based on the material before the Commission it appears that Mr Burstein made a conscious decision not to pursue his general protections application while his efforts to resolve the matter remained on foot. Mr Burstein did not elaborate as to why he was precluded from lodging his application other than commenting that he did not think the matter would go this far.

[14] With regard to Mr Burstein’s acknowledgement that he was not aware of the 21 day timeframe for making a general protections application, I note that in Cheyne Leanne Nulty v Blue Star Group (Nulty) 1a Full Bench of the then Fair Work Australia determined that:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”

[15] The above analysis, together with the decision in Nulty, does not support a finding of the existence of exceptional circumstances.

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

[16] Mr Burstein in his written submissions contended that he accepted the offer of redundancy on the basis that his redundancy pay would be calculated on his average pay over the previous twelve months, adding that he only found out that he had been underpaid when he received his pay slip on 15 December 2015 and that he subsequently sought to seek to resolve his grievance in this regard directly with Mr Hede and AHG.

[17] While AHG acknowledged that Mr Burstein had written to several individuals from AHG regarding the method of calculating his redundancy payment, it contended that that Mr Burstein did not take any steps to dispute his redundancy.

[18] Based on the material before the Commission, it is clear that while Mr Burstein did challenge the calculation of his redundancy pay he did not challenge the genuineness of his dismissal at any stage. This does not point to the existence of exceptional circumstances.

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

[19] Mr Burstein submitted that AHG would not be prejudiced were an extension of time granted.

[20] AHG contended that it would be prejudiced as a result of having to devote time and resources to defending Mr Burstein’s application as well as incurring expenses in seeking external advice regarding the application. While I note AHG’s submission in this regard, this of itself does not constitute prejudice in the sense that AHG would be disadvantaged in defending the application as a result of the delay in lodging the application.

[21] Against that background, I consider the issue of prejudice to be a neutral consideration.

(d) The merits of the application

[22] At the telephone hearing, Mr Burstein contended that he had not been treated fairly as his redundancy pay was not calculated in accordance with the arrangement he agreed with Mr Hede. In response to questions from the Commission at the telephone hearing, Mr Burstein was unable to point to which of the general protections provisions of the Act AHG had contravened.

[23] AHG submitted that the application lacked merit and could be described as having no reasonable prospects of success as:

• Mr Burstein had failed to detail which workplace right under s.340 of the Act he relied upon; and



• the disagreement over the basis of calculating Mr Burstein’s redundancy pay did not of itself constitute adverse action or contravene any of the general protections provisions of the Act.

[24] At the telephone hearing, AHG submitted that there was no evidence before the Commission to support Mr Burstein’s contention that an agreement was made that his redundancy pay was to be calculated at his average rate of pay as opposed to his base rate of pay.

[25] Based on the material before the Commission, Mr Burstein’s grievance appears to relate solely to the basis on which his redundancy pay was calculated as opposed to his dismissal involving a contravention of the general protections provisions of the Act.

[26] In those circumstances and in the absence of any material pointing to a contravention of the general protections provisions of the Act, the merits of Mr Burstein’s application appear particularly poor. This does not point to the existence of exceptional circumstances.

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

[27] Mr Burstein submitted that he would like to be treated fairly, adding that he believed that he should be entitled to be heard.

[28] AHG contended that it would be unfair to other applicants who had made similar applications but who were unsuccessful in obtaining an extension of time where their claim had greater merit than Mr Burstein’s.

[29] While I note AHG’s submission regarding this factor, I nevertheless consider it to be a neutral consideration.

Conclusion

[30] The question of exceptional circumstances was dealt with in Nulty in the following way:

“[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.”

[31] The above analysis does not see any factors point to the existence of exceptional circumstances. Against that background, and both having considered all of the factors set out in s.366(2) and drawing on Nulty, 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).

[32] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

Appearances:

M. Burstein on his own behalf.

J. McGregor with C. Hede for AHG Services (WA) Pty Ltd T/A Nuford Wangara.

Hearing details:

2016.

Canberra and Perth (telephone hearing):

March 8.

 1   [2011] FWAFB 975

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