Michael Hyams v Goat Enterprises Pty Ltd T/A Hr Services Australia

[2016] FWC 2467

[2016] FWC 2467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michael Hyams
v
Goat Enterprises Pty Ltd T/A HR Services Australia
(C2015/2965)

DEPUTY PRESIDENT KOVACIC CANBERRA, 19 APRIL 2016

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

[1] Mr Michael Hyams (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 31 May 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Goat Enterprises Pty Ltd T/A HR Services Australia (the Respondent) on 16 March 2015 in contravention of the general protections provisions in the Act.

[2] The Respondent in its Form 8A – Response to general protections application raised a jurisdictional objection, contending that Mr Hyams had not been dismissed but had resigned from his employment on 16 April 2015.

[3] Based on Mr Hyams’ version of events, his application was lodged fifty five days outside the 21 day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. On the Respondent’s version of events, the Commission’s jurisdiction under s.365 of the Act is not enlivened as there was no dismissal. In the alternative, the Respondent submitted that:

• relying on 16 April 2015 (i.e. the date that Mr Hyams requested an Employment Separation Certificate) as the date Mr Hyams’ employment ceased, Mr Hyams’ application was lodged twenty four days outside the statutory timeframe for lodgement.



• relying on 29 April 2015 (i.e. the date the Respondent’s solicitors wrote to Mr Hyams confirming that the Respondent had accepted his voluntary resignation with effect from 16 April 2015) as the date Mr Hyams’ employment ceased, that Mr Hyams’ application was lodged eleven days outside the statutory timeframe for lodgement.

[4] The Commission convened a conference on 13 November 2015 which was unsuccessful in resolving the dispute.

[5] The Commission subsequently issued Directions on 20 November 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Both parties were asked to indicate if they wished to be heard on the extension of time issue and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the Directions. Neither party requested to be heard.

[6] 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, Mr Hyams’ application will be dismissed.

Background

[7] Mr Hyams commenced work with the Respondent on 23 February 2015 as a casual employee.

[8] On 16 March 2015 an issue arose regarding an email sent to staff in the Respondent’s call centre by Mr Hyams’ Team Leader. The email instructed staff that the use of mobile phones should be limited to work breaks. Mr Hyams objected to this as he needed to use his mobile phone for business purposes unrelated to the work of the Respondent. The issue was escalated through to the Respondent’s Human Resources Services Director who confirmed the instruction given by the Team Leader.

[9] Mr Hyams subsequently made a formal complaint about the Team Leader’s conduct and behaviour. The Respondent contended that the complaint was investigated and found to be unsubstantiated. Mr Hyams alleged that after he made the complaint on 16 March 2015 his Team Leader told him to go home as the Respondent had no work for him for the rest of the week and that she would contact him on Friday regarding work for the next week.

[10] According to Mr Hyams, with the exception of Mr Brown, the Respondent’s Director, texting him for a password for a server he was not subsequently contacted by the Respondent. The Respondent, on the other hand, contended that subsequent to the investigation it made repeated attempts to contact Mr Hyams regarding his availability for upcoming shifts and that Mr Hyams failed to provide an indication as to his availability or attend work after 16 March 2015.

[11] The Respondent contended that on 16 March 2015 Mr Hyams sent an email to Mr Brown, making further complaints about his Team Leader and alleging he had been effectively terminated from his employment. On 20 March 2015, Mr Brown responded and confirmed that Mr Hyams’ employment had not been terminated and the Respondent would be seeking to roster him for further shifts.

[12] In subsequent developments, on 16 April 2015 Mr Hyams sent an email to Mr Brown requesting an Employment Separation Certificate. Mr Brown, despite being overseas at the time, responded on the same day in the following terms:

“Mike,
I am unsure what outcome you are hoping for? I’ve tried to remain professional and fair in all actions and correspondence to date.
My direct instructions to all management staff have been to engage you as required for both training and call centre work.

Your assertions that I have respect for you and value your contributions to date are correct. However the actions you describe in your email seem to be aimed at damaging me, my business and my staff. Certainly they are in contradiction to the relationship you agree we enjoyed.

…

I was also unsure how we could issue a separation certificate when your employment contract is still active. There is no allowance on the separation certificate for the circumstance on foot.

In order to ensure we can resolve this matter in a fair and positive manner, may I ask that you meet with Barb, Ian and I on Wednesday next week when we return to Australia?”

[13] On 29 April 2015, the Respondent’s solicitors wrote to Mr Hyams confirming that the Respondent had accepted his voluntary resignation with effect from 16 April 2015 and providing an Employment Separation Certificate.

[14] As previously noted, Mr Hyams’ general protections application was received by the Commission on 31 May 2015, which is either fifty five or eleven days outside the 21 day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. In his application, Mr Hyams contended that his dismissal contravened s.340 of the Act which deals with protection concerning the exercise or non-exercise of a workplace right.

The Relevant Legislation

[15] 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

[16] 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. I should note that as Mr Hyams’ application was lodged outside the 21 day timeframe irrespective of whether the date his employment ceased was 16 March or 16 or 29 April 2015, it is therefore not necessary for the Commission to first come to a view as to on which date Mr Hyams’ employment ceased prior to considering the extension of time issue.

(a) The reason for the delay

[17] Mr Hyams submitted that the reason for the delay in filing his application was his expectation that the Respondent would contact him to come back to work after he was told that there was not enough work for him for the week commencing 16 March 2015.

[18] The Respondent submitted that Mr Hyams’ submissions were unclear regarding the reason for the delay in lodging his application and did not set out a clear basis upon which an extension of time was sought. The Respondent also contended that Mr Hyams was aware of the cessation of his employment when he asked for an Employment Separation Certificate on 16 April 2015.

[19] Based on the material before the Commission it is clear that as at 16 April 2015 when Mr Hyams emailed Mr Brown requesting an Employment Separation Certificate that he considered his employment with the Respondent had already ceased. Even if this was not the case, Mr Hyams could have been in no doubt from 29 April 2015 when the Respondent’s solicitors wrote to him confirming that the Respondent had accepted his voluntary resignation with effect from 16 April 2015. Despite this, Mr Hyams provided no explanation as to why his application was not then lodged until 31 May 2015. As noted by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 1, an employee needs to provide a credible reason for the whole of the period that the application was delayed. Based on the material before the Commission, I am not satisfied that Mr Hyams has done so.

[20] This does not point to the existence of exceptional circumstances.

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

[21] Mr Hyams did not directly address this factor in his submissions.

[22] The Respondent maintained that Mr Hyams had resigned from his employment.

[23] While I note that Mr Hyams asked for an Employment Separation Certificate on 16 April 2015, this does not entail disputing his dismissal but rather is an acknowledgement that his employment had already ceased. Beyond that, Mr Hyams does not appear to have taken any action to dispute his dismissal prior to lodging his general protections application.

[24] This does not support a finding that there were exceptional circumstances.

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

[25] Neither party made submissions in relation to this factor. Accordingly, I consider it to be a neutral consideration.

(d) The merits of the application

[26] Again, Mr Hyams did not address this factor in his submissions.

[27] The Respondent submitted that Mr Hyams’ employment was not terminated but that his employment ceased on 16 April 2015 by way of a voluntary resignation when he requested an Employment Separation Certificate. The Respondent further submitted that even if Mr Hyams’ employment was terminated at the initiative of the Respondent, Mr Hyams had been unable to produce any credible evidence to support his contention that he had been dismissed in contravention of the general protections provisions in the Act.

[28] Based on the limited material before the Commission, I am unable to form a considered view as to the merits of the application, though I note that Mr Brown’s email of 16 April 2015 to Mr Hyams does not suggest that Mr Hyams’ employment had been terminated at the initiative of the Respondent.

[29] As such, I consider this factor to be a neutral consideration.

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

[30] Neither party directly addressed this factor in their submissions. As such, I consider it to be a neutral consideration.

Conclusion

[31] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 2(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.”

[32] 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).

[33] Accordingly, Mr Hyams’ application will be dismissed. An order to that effect will be issued with this decision.

 1 (2010) 197 IR 403 at 408-409

 2 (2011) 203 IR 1

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