Mr Anthony Duncan v Mibus Bros Pty Ltd T/A Mibus Bros

[2018] FWC 3927

[2018] FWC 3927

FAIR WORK COMMISSION

DECISION

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

Mr Anthony Duncan
v
Mibus Bros Pty Ltd T/A Mibus Bros
(C2018/1913)

COMMISSIONER CIRKOVIC MELBOURNE, 4 JULY 2018

Application to deal with contraventions involving dismissal.

[1] Mr Anthony Duncan (“the Applicant”) lodged a general protections application (“the application”) with the Fair Work Commission (“the Commission”) pursuant to s.365 of the Fair Work Act (“the Act”). The Respondent to the application is Mibus Bros Pty Ltd (“the Respondent”).

[2] The Applicant commenced employment with the Respondent on 8 January 2018. He was employed as a truck driver.

[3] There is no dispute and I am satisfied on the evidence that the Applicant was dismissed by the Respondent on 21 March 2018 and the dismissal took effect on that day.

[4] The Applicant lodged his Form F8 on 12 April 2018. The application was therefore one day out of time.

[5] 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.

Alleged contravention

[6] The Applicant submits that he was dismissed because he exercised work place rights. A breach of s.340 of the Act is alleged.

[7] The Respondent denies this allegation and submits that the Applicant was dismissed for threatening and abusive behaviour upon being confronted regarding his performance. 1

Legislative scheme

[8] Subsection 366(1) of the Act provides that an application under s.365 of the Act must be made within 21 days after the dismissal took effect:

(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).

[9] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[10] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 2where the Full Bench said (footnotes omitted):

“[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.”

[11] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[12] The Full Bench of the Commission affirmed in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 3 that the conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each. Further, the Full Bench clarified that with respect to s.366(2)(a), a credible explanation for the entirety of the delay is not a precondition for the granting of an extension of time. The Full Bench held as follows:

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

[41] The ‘reason for the delay’ is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.” (footnote omitted).

Background

[13] On 18 April 2018, the Commission advised both parties that the application had not been filed within 21 days of the dismissal taking effect. On the same day, directions were issued for the filing of submissions regarding the extension of time.

[14] The matter was listed for a telephone hearing on 10 May 2018. The Applicant appeared and gave evidence on his own behalf. The general manager of the Respondent, Mr John Weichert, appeared and gave evidence on the Respondent’s behalf.

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

[15] 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;

[16] The Applicant relied on a combination of factors during the hearing and in his written submissions to explain the delay as follows:

•  he had contacted the Fair Work Ombudsman shortly after 21 March 2018; 4

•  he had accessed the Fair Work Commission website and was aware of the 21 day time limit; 5

•  due to living in a caravan, the Applicant experienced difficulties with internet and emails “getting it to send or getting it to load”; 6

•  he “was waiting for other documents to put the application in.”; 7

•  he was only “new to the area” and had not experienced “many reception issues before.”; 8

•  the difficulties were a consequence of “overcast” weather, 9 detailing that the weather conditions were “just like today, bad weather, bad reception.”; 10

•  accordingly the Applicant had to “drive up out of – well, out of where [he] was into Coleraine to try to get reception” in order to lodge his application. 11

[17] During cross examination, the following interchange occurred between the Applicant and Mr Weichert:

“MR WEICHERT: I’d like to ask Mr Duncan, on the 11th, so the day in question, you sent me an email at 5.30 am.

MR DUNCAN: Yes.

MR WEICHERT: Where was that from?

MR DUNCAN: That would have been the same place if that was the same date. The 11th of - what date was it again, 11th of when?

MR WEICHERT: So that was the date that you’re saying you had difficulty that evening trying to send the email.

MR DUNCAN: Yes.

MR WEICHERT: At 5.30 am that morning was the first contact that I’ve had which you sent an email to Martin in which the content of which is basically exactly copied into this document that we’ve just received.

MR DUNCAN: Yes.

MR WEICHERT: That was sent to me at 5.30 am that morning. Can you tell us where that was sent from?

MR DUNCAN: What date are you talking? The 21st?

MR WEICHERT: Yes, 21 April.

MR DUNCAN: Sorry, the 11th.

MR WEICHERT: 11 April. 11 April.

MR DUNCAN: Which is the same day as - which is the same day as the application was lodged.

MR WEICHERT: No, the application was lodged the following day.

MR DUNCAN: Okay, yes, that night. Yes, that’s correct.

MR WEICHERT: So where was the application - - -

MR DUNCAN: (Indistinct). Sorry?

MR WEICHERT: So where was the application lodged from at 5.30 am that morning?

MR DUNCAN: Are you talking the morning of the 11th or the morning of the 12th?

MR WEICHERT: The morning of the 11th which was when you sent the email and I’ll read part of it, which is -- -

MR DUNCAN: It would have been from the - it would have been from the same place, yes, the caravan at Coleraine.

MR WEICHERT: Okay, all right. So that worked in the morning. Is there any reason that the application wasn’t ready and prepared and sent that morning then?

MR DUNCAN: Yes, because I hadn’t finished preparing the application.

MR WEICHERT: Okay.

MR DUNCAN: I didn’t finish it until that evening. It still isn’t actually finished now because I’m still waiting - I’m still waiting for a document from a gentleman. So, yes.

MR WEICHERT: Any reason why you couldn’t have posted it in the mail?

MR DUNCAN: Because I didn’t expect to have a problem with the internet. If I knew I’d be having a problem with the internet, I would have drove it to Portland.” 12

[18] The Applicant concedes that he was able to email Mr Weichert without interruption, from his caravan, at 5:30am on the day that his application was due.

[19] The Respondent submits that the Applicant’s claims are incongruous with his presentation to the Respondent as an experienced employee in the construction industry who would be well aware of the importance of meeting deadlines. 13 The Respondent further submits that the Applicant’s explanation for the delay is unremarkable.

[20] The Applicant accepts that shortly after he became aware of his dismissal, he contacted the Fair Work Ombudsman and accessed the Fair Work Commission website. He concedes that at that time he became aware of the 21 day time limit. He concedes that he commenced completing the application at some point prior to the expiration of the 21 day period. 14 The Applicant does not offer a reasonable explanation for failing to complete and lodge his application within the required period. The application on its face makes clear the importance of the time limit. On the first page of the Form F8, under the heading ‘[l]odging your completed form’, it states “Lodge your application along with any supporting documents with the Commission. Your application (Form F8) must be lodged within 21 calendar days after the dismissal took effect.”

[21] The Applicant concedes that the internet was functioning at 5.30am on the morning that his application was due and that he successfully forwarded an email to Mr Weichert. The Applicant could have filed his application at that time but chose not to. No reasonable explanation is given by him for not doing so.

[22] Ultimately, I am not satisfied that the reasons relied on by the Applicant, either when considered alone or when considered together, provide a reasonable explanation for the delay. I have considered the fact that the application was lodged one day late but, in this matter, I am inclined to agree with the comments of Deputy President Gostencnik in Ozsoy v Monstamac Industries Pty Ltd, 15 where the Deputy President makes the following observation:

“[21] The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional. The absence of an acceptable explanation for the delay weighs against the Applicant in this case.”

[23] Given my conclusion, this criterion weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[24] The Applicant was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[25] In response to the question ‘did you question or argue against the dismissal after you became aware of it,’ the Applicant said he “[s]poke to Rob From Mibus Bros on 21/03/18 and explained my version of events and I have a right to make a claim with FWC.” 16 He also submitted that he sent an email to Martin Mibus. The Applicant provided an extract of that email,17 which included a proposal to settle the matter, and also provided; “[i]f I receive no response before 12.00pm today I shall have no other option but to lodge a claim with the Fairwork Ombudsman for unfair dismissal, workplace harassment/bullying, discrimination and other.”18

[26] The Respondent stated the Applicant did not take any steps to dispute the dismissal. 19

[27] I accept that the Applicant took steps to dispute the dismissal. This conclusion points in favour of a finding of exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[28] The Respondent submitted that the supervisors involved in the dismissal are “currently difficult to contact” with one working remotely and the other being on annual leave in a remote location. 20 During the hearing, the Respondent further submitted that should an “extension of time be granted and the hearing occur, [they] have already spent significant amount of time on [the matter] and the hearing would take additional significant time.”21

[29] The Applicant submitted he does not believe the lateness of his application would cause any disadvantage or unfairness to the Respondent as he filed 40 minutes late, 22 at 12.40am on 12 April 2018, and the application would not have been processed by the Commission until the “start of work morning of 21/04/18 [sic].”23

[30] Prejudice to the employer will go against the granting of an extension of time. 24 However, the “mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.”25

[31] In this matter, I consider this criterion to be neutral.

(e) the merits of the application;

[32] The Applicant submits that the merits of his application favour the granting of the extension. 26 The Respondent submits the Applicant was dismissed for “threatening and abusive behaviour once confronted regarding performance.”27

[33] In the matter of Kornicki v Telstra-Network Technology Group 28 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 29

[34] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 30 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[35] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 31 considered this criterion and said at [41]:

“…Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[36] The Applicant made a submission that people located in rural areas are at a “very big disadvantage” with respect to technology. 32 The Respondent did not make a submission on this criterion.33

[37] I have considered the Applicant’s submission, but ultimately I find this criterion to be a neutral consideration.

Conclusion

[38] 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.

[39] An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Mr A Duncan, the Applicant;

Mr J Weichert for the Respondent.

Hearing details:

2018

10 May

Melbourne (by telephone).

Final written submissions:

Applicant’s Outline of Argument: Extension of time

Respondent’s Outline of Argument: Extension of time

Printed by authority of the Commonwealth Government Printer

<PR608666>

 1   Respondent’s Outline of Argument: Extension of time, [1h].

 2   [2011] FWAFB 975.

 3   [2018] FWCFB 901.

 4   Transcript PN 199.

 5   Transcript PN 205-207.

 6   Transcript PN 171.

 7   Transcript PN 295.

 8   Transcript PN 183-187.

 9   Transcript PN 237-239.

 10   Transcript PN 229.

 11   Transcript PN 181.

 12   Transcript PN 252-279.

 13   Transcript PN 438-439.

 14   Transcript PN 274-275.

 15   [2014] FWC 479.

 16   Applicant’s Outline of Argument: Extension of time, [1e].

 17   Ibid.

 18   Ibid.

 19   Respondent’s Outline of Argument: Extension of time, [1e].

 20   Respondent’s Outline of Argument: Extension of time, [1g].

 21   Transcript PN 439.

 22   Transcript PN 209.

 23   Applicant’s Outline of Argument: Extension of time, [1f].

 24   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 25   Ibid.

 26   Transcript PN 247.

 27   Respondent’s Outline of Argument: Extension of time, [1h].

 28   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 29   Ibid.

 30   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 31   [2016] FWCFB 6963.

 32   Applicant’s Outline of Argument: Extension of time, [1i].

 33   Respondent’s Outline of Argument: Extension of time, [1f].