Michael Furnace v Trelee Pty Ltd T/A Ozzie Gourmet Meats

[2015] FWC 8439

[2015] FWC 8439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michael Furnace
v
Trelee Pty Ltd T/A Ozzie Gourmet Meats
(C2015/5716)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 7 DECEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 18 August 2015 Mr Michael Furnace (the Applicant) lodged a General Protection 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 Trelee Pty Ltd T/A Ozzie Gourmet Meats (the Respondent).

[2] The Applicant commenced employment with the Respondent on 24 February 2014. He was employed as a full-time butcher at the Respondent’s shop in suburban Perth. He says that he was dismissed by text message on 7 July 2015. This was confirmed by letter on 9 July.

Alleged Contravention

[3] The Applicant submits that he was dismissed by an abusive text message because he was ill and not able to work. A breach of s.352 is alleged.

Respondent’s Submissions

[4] The Respondent concedes that its text message response used crude language but says that the Applicant did not advise the Respondent that he was sick. He did not answer phone calls or present for work.

[5] The Respondent states that there were a number of issues with respect to the Applicant’s performance and conduct that justified the dismissal. He was given two weeks’ notice and paid out all his entitlements.

Relevant Legislation

[6] 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

[7] 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.”

[8] On 28 August 2015 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 26 October 2015.

[9] That hearing did not proceed. The hearing before me took place on 18 November 2015.

[10] The Applicant was represented by his sister Ms Margaret McDiarmid. The Respondent was represented by the co-owners Mr Trevor and Ms Lee Hockley.

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

[11] 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

[12] The application is 21 days out of time. His explanation for the delay was his medical condition. Evidence of his medication was provided. However, there is no suggestion of hospitalisation or treatment by a specialist. I am not convinced that this condition prevented him from making an application. His evidence is that ultimately his sister, who represented him at the hearing, did the research and assisted him to complete the form. There is no reason that this could not have occurred within 21 days after the dismissal.

[13] In my view, the reasons for delay cited by the Applicant fell short of establishing exceptional circumstances.

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

[14] Contact between the Applicant, his representatives and the Respondent, after the dismissal, appears to have been about the return of property and the payment of his entitlements rather than contesting the dismissal. Indeed, the Applicant sent a text message which accepted the dismissal.

[15] The evidence, therefore, does not support a finding that there were exceptional circumstances.

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

[16] I have treated this as a neutral factor.

(d) The merits of the application

[17] The Applicant alleges that he was dismissed because he was ill. The Respondent says that it was not aware of any illness. It was not advised of the illness and was not provided with any doctor’s certificate before the dismissal.

[18] The Respondent concedes that the text sent by it was abusive but that it arose out of frustration with the Applicant’s attendance record. The Respondent gives a number of examples of the Applicant’s lateness and absenteeism without appropriate notification.

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

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

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

Conclusion and Order

[21] 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 Michael Furnace under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

M. McDiarmid for the Applicant.

L. Hockley and T. Hockley, Respondent.

Hearing details:

2015

Telephone Hearing:

November 18.

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