Micheal Hill v Franzon's Rosewater Hotel Pty Ltd T/A Rosewater Hotel

[2020] FWC 6195

[2020] FWC 6195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Micheal Hill
v
Franzon’s Rosewater Hotel Pty Ltd T/A Rosewater Hotel
(C2020/6222)

DEPUTY PRESIDENT YOUNG MELBOURNE, 18 NOVEMBER 2020

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Mr Micheal Hill under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) 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 section 366(2).

[2] On 3 September 2020, I issued directions for the parties to file materials. Materials were filed by Mr Hill on 1 October 2020 and by the Respondent on the same day. Following receipt of these submissions I conducted a mention on 7 October 2020 and issued further directions for the parties to file further materials. Further materials were filed by Mr Hill on 14 October 2020 and by the Respondent on 15 October 2020.

[3] On 2 November 2020 I conducted the proceeding by way of determinative conference by telephone. At the determinative conference Mr Hill appeared on his own behalf. Ms Amanda Grice, Administration and Finance Manager, appeared on behalf of the Respondent.

Background

[4] Mr Hill was employed by the Respondent in the role of Grade 3 Chef 1 from 13 January 2020.2 In his materials, Mr Hill asserts a number of dates upon which his dismissal took effect.3 At the determinative conference, he said that the dismissal took effect on 16 June 2020 by way of an email on that date which stated that his employment was terminated due to abandonment of employment (16 June Email). He says that the 16 June Email was sent following an email on 12 June 2020 which stated, relevantly, “…Should you fail to contact us and provide us with reasonable reason/s for your absence by Monday 15/6/2020 9am then we shall have no choice but to proceed with termination of employment due to abandonment...”4 Mr Hill did not file a copy of the 16 June Email in his materials and advised at the determinative conference that he could not locate a copy. Mr Hill says that the 16 June Email did not state the date his termination would be effective. The Respondent disputes the existence of the 16 June Email and says that such an email was never sent to Mr Hill. The Respondent says that it sent Mr Hill the email on 12 June 2020 notifying him that it intended to proceed with terminating his employment due to abandonment, however, did not proceed with this following the provision of medical documentation from Mr Hill on 16 June 2020. The Respondent asserts that instead, it notified Mr Hill of his dismissal for misconduct on 17 June 2020 to take effect on 23 June 2020.5

[5] On 17 June 2020, the Respondent sent an email to Mr Hill stating, relevantly, “…After reviewing your documentation yesterday we will not be continuing with abandonment of employment termination, however we will be terminating your employment for misconduct…as there are already several meeting records in your personnel file we will be terminating your employment and providing you with 1 weeks notice which we require you to work through…” 6 It is undisputed that Mr Hill did not attend work following 17 June 2020.

[6] All of the above correspondence was in evidence before the Commission, other than the 16 June Email. Accordingly, on the basis of the probative evidence before the Commission, I find that Mr Hill’s termination of employment took effect on 23 June 2020. Accordingly, the application was required to be lodged by midnight on 14 July 2020. Mr Hill did not lodge the application until 12 August 2020. The application was therefore lodged 29 days out of time. Should I be wrong, and Mr Hill’s employment ended on 16 June 2020 as he contends, the application was required to be lodged by midnight on 7 July 2020 and was therefore lodged 36 days out of time. Mr Hill seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.

Consideration

[7] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 7

[8] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 8 where it was noted that, in order to be exceptional, 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.9

[9] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 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) 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.

Reason for the delay

[10] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 10 or a reasonable explanation.11 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd12 the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.13 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.14

[11] In his materials and at the determinative conference, Mr Hill says that the reasons for the delay in lodgement were manifold.

[12] Firstly, he submits that he was focusing his attention on his workers’ compensation claim in respect of “anxiety and depression caused by bullying and harassment by members of the management team.” 15 He says that this claim was submitted on 18 June 2020. Accordingly, Mr Hill’s workers’ compensation claim was lodged prior to his dismissal taking effect on 23 June 2020 and cannot therefore provide an explanation for the delay in lodgement. Further, even if Mr Hill’s employment ended on 16 June 2020 as he contends, the workers’ compensation claim was lodged within the 21 day period following his dismissal. It cannot therefore provide an explanation for the delay in lodgement from 7 July 2020 (on the termination date asserted by Mr Hill) until 12 August 2020 noting that the period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. For completeness, Mr Hill did not provide any probative evidence of the anxiety and depression he says he was experiencing nor any evidence that his asserted mental health concerns in any way precluded him from lodging the application on time.

[13] Secondly, Mr Hill says that he was also dealing with the Fair Work Ombudsman (FWO) in respect of an asserted underpayments issue which he submitted to the FWO in early July 2020. A response to that matter was received from the FWO on 9 July 2020. 16 Accordingly, this matter was also finalised prior to the 21 day period following his dismissal and therefore cannot provide an explanation for the delay in lodgement. Further, even if Mr Hill’s employment ended on 16 June 2020 as he contends, he received a response from the FWO on 9 July 2020 but did not lodge his application until more than one month later, on 12 August 2020. This matter does not provide an acceptable explanation for the delay in lodgement.

[14] Thirdly, Mr Hill says that he was hospitalised on two occasions, once on 11 June 2020 for the day and another sometime prior to that. These hospitalisations occurred prior to both 16 June 2020 and 23 June 2020 and therefore cannot provide an explanation for the delay.

[15] Finally, Mr Hill submits that he lodged an unfair dismissal application with the Commission via post on 19 June 2020 however, he says that when he telephoned the Commission for an update on the progress of that application, he was informed that the Commission was no longer taking postal applications and accordingly, he relodged that application electronically on 4 August 2020. 17The Commission’s records indicate that on 5 August2020, the Commission telephoned Mr Hill and advised him that it appeared he had not met the minimum employment period required to be eligible to make an unfair dismissal application and accordingly, Mr Hill discontinued that application. Mr Hill says that following this call he then lodged the present general protections application. I do not consider this provides an acceptable explanation for the delay. Firstly, the Commission’s records do not indicate that a postal application had been received from Mr Hill at any time nor is it the case that the Commission is no longer receiving postal applications. Secondly, Mr Hill was advised by the Commission on 5 August 2020 that on the material he had provided it appeared that he was ineligible to make an unfair dismissal claim. However, he did not lodge the current application for a further seven days, until 12 August 2020. Finally, it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement.18

[16] Accordingly, Mr Hill has not provided a reasonable or acceptable explanation for the delay. This weighs against the granting of an extension of time.

Action taken by the person to dispute the dismissal

[17] At the determinative conference, Mr Hill submitted that he took action to contest his dismissal through the lodgement of his unfair dismissal application with the Commission. In its materials, the Respondent says that Mr Hill disputed his dismissal by contacting the FWO and making a worker’s compensation claim. 19 However, at the determinative conference, the Respondent submitted that Mr Hill did not ever directly address his termination with the Respondent and accordingly, he did not take action to dispute the dismissal. I accept that by lodging the unfair dismissal application Mr Hill took action to contest his dismissal. This weighs in favour of the grant of an extension of time.

Prejudice to the employer

[18] At the determinative conference, Mr Hill submitted that he does not believe the Respondent is prejudiced by the delay in lodgement. He says that if the Respondent was concerned about suffering prejudice, they would have resolved the matter. The Respondent submits that it will suffer prejudice as the resources of the Respondent have been and will be used defending a claim which they say has no basis. The Respondent says that this use of resources is preventing the business from “moving forward and dealing with COVID-19 restrictions and changes.” 20 The Respondent says that the prejudice also extends to the employment of other employees of the Respondent as they are dealing with COVID-19 related anxiety.

[19] Whilst noting the Respondent’s submissions and acknowledging that businesses are managing COVID-19 related difficulties, I do not consider that the need to defend the application if an extension of time were granted will result in prejudice to the Respondent. However, the mere absence of prejudice is not, in my view, a factor that would weigh in favour of the grant of extension of time. I consider this to be a neutral consideration in the present case.

Merits of the application

[20] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[21] In his materials, Mr Hill alleges that adverse action was taken against him in breach of sections 340 and 352 of the Act. 21 Section 340 provides, amongst other things, that a person must not take adverse action against another person because the other person has a workplace right, or has, or has not, exercised a workplace right. Section 352 provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

[22] Mr Hill says that he exercised his workplace right to access sick leave due to a medical condition, and that this was the reason he was dismissed on the basis of misconduct, as opposed to abandonment of employment. 22 He says that this was done so that the Respondent would not have to pay him in lieu of notice.23 At the determinative conference, Mr Hill submitted that he was dismissed as he was on sick leave. He says that the employer was informed that he had suffered an electrocution at home and was hospitalised and, accordingly, would not be attending work. He says that the electrocution occurred on 11 June 2020 and he was advised by the hospital to rest for 48 hours. He says that he would have been rostered on the day following that 48 hour period being 14 June 2020, however his shift was removed from the roster.

[23] The Respondent concedes that adverse action in the form of dismissal was taken against Mr Hill. However, in its materials and at the determinative conference, the Respondent says that Mr Hill was dismissed on the basis of misconduct for failing to follow lawful and reasonable directions 24 including failing to attend for work, failing to provide documents when requested and failing to communicate with the Respondent. Mr Hill conceded at the determinative conference that he did not provide medical documentation at that time of his absence, nor did he provide it when requested by his venue manager. He said that it was normal practice that he would provide medical documentation in person, upon his return to work. However, he did not return to work and accordingly, did not provide the documentation until 16 June 2020 and after being requested to do so in the email of 12 June 2020.

[24] Given the interlocutory nature of these proceedings, and on the material currently available to the Commission, it is not possible to form a concluded view as to whether adverse action was taken against Mr Hill in breach of section 340 and/or 352 of the Act. However, given the absence of the provision of medical certification by Mr Hill until 16 June 2020, his claim under section 352 of the Act appears weak. It is also unclear from the material before me that Mr Hill had an entitlement to paid personal leave during that absence such as to found a claim on that basis under section 340 of the Act. However, the evidence of Mr Hill and the Respondent would need to be fully tested under oath. In these circumstances, I am prepared to consider the merits of Mr Hill’s application to be a neutral consideration.

Fairness as between the person and another person in a like position

[25] Applications to extend time generally turn on their own facts. Section 366(2)(e) of the Act is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.²⁵ Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.²⁶ The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Hill and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[26] The time limit that applies to the exercise of a person’s right to bring an application under section 365 of the Act reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[27] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mr Hill’s application.

[28] Accordingly, I decline to grant an extension of time under section 366(2). Mr Hill’s application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

M Hill on his own behalf
A Grice for the Respondent

Hearing details:

2020.
Melbourne and Adelaide (by telephone):
2 November.

Printed by authority of the Commonwealth Government Printer

<PR724678>

 1   Exhibit R4, p.1

 2   Exhibit A14 at q.1.1

 3   See Exbibit A1 at q.1.3, Exhibit A3 and Exhibit A14 at q.1.3

 4   Exhibit A5

 5   Exhibit R1 at q.2.2

 6   Exhibit A9

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

 8   [2011] FWAFB 975

 9   Ibid at [13]

 10   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 11   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

 12   [2018] FWCFB 901

 13   Ibid at [39]

 14   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

 15   Exhibit A3

 16   Exhibit A3

 17   Exhibit A1 at q.1.4; Exhibit A3

 18   Nulty v Blue Star Group Pt Ltd [2011] FWAFB 975

 19   Exhibit R2 at q.1e; Exhibit R3 at q.1e

 20   Exhibit R2 at q.1g; Exhibit R3 at q.1g

 21   Exhibit A1 at q.3.2

 22   Exhibit A2

 23   Exhibit A1 at q.3.1

 24   Exhibit R2 at q.1h; Exhibit R3 at q.1h

25 Wilson v Woolworths [2010] WA 2480 at [24-29]

26 Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]