Mr Anthony Mayall v French Island Ferries

[2013] FWC 9880

[2013] FWC 9880

FAIR WORK COMMISSION

DECISION

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

Mr Anthony Mayall
v
French Island Ferries
(C2013/7321)

COMMISSIONER WILSON MELBOURNE, 18 DECEMBER 2013

Application to deal with contraventions involving dismissal - jurisdictional objection - whether extension of time should be granted

Background

[1] Mr Anthony Colin Mayall filed an application for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Mr Mayall’s application relates to the termination of his employment by French Island Ferries on 15 July 2013, and was lodged with the Commission on 20 November 2013.

[2] Section 366 of the Act provides that an application under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. As Mr Mayall’s employment was terminated on 15 July 2013, the application would need to have been made to the Commission no later than 5 August 2013 in order for it to be within time. Mr Mayall’s application is therefore more than three months out of time.

[3] The Respondent filed a response to Mr Mayall’s application on 27 November 2013. The Employer Response was attached to an email from the representative of French Island Ferries, in which the representative advised that the Respondent objected to the late filing of the application (the Extension of Time Objection).

[4] On 29 November 2013, both parties were advised that the Extension of Time Objection would be determined on the papers, and were directed to file submissions on the issue.

[5] French Island Ferries opposes the granting an extension of time on the basis that no exceptional circumstances exist.

Legislative scheme

[6] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:

366 Time for application

(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).

(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.

[7] Subsection 366(2) of the Act states that a further period for making an application may be allowed by the Commission in the event there are “exceptional circumstances”, and taking into account five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”: 1

[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.

Consideration

[8] I turn to consider each of the criteria set out in subsection 366(2).

The reason for the delay

[9] Mr Mayall lodged a separate unfair dismissal claim with the Fair Work Commission on 24 July 2013. 2 The unfair dismissal application was lodged within the prescribed time frame. Mr Mayall submits that he subsequently received legal advice through the Fair Work Commission’s pro bono scheme, and as a result withdrew his unfair dismissal claim - replacing it with this general protections application. Mr Mayall made submissions that:

“Without the benefit of legal advice at the outset, I have found the process to be very complex and have attempted to follow the correct procedures to the best of my limited experience with such matters”. 3

[10] The Respondent submits that on 28 September 2013, Mr Mayall was advised of a jurisdictional objection to his unfair dismissal claim, and that he was served with the Respondent’s formal submissions in relation to the jurisdictional issues on 31 October 2013. 4

[11] Mr Mayall filed a Notice of Discontinuance with respect to the unfair dismissal claim on 20 November 2013. As noted above, this general protections application was lodged on the same day. He submits that he withdrew his application immediately after receiving legal advice proximate to a jurisdictional hearing on the unfair dismissal matter.

[12] I note while the Applicant submits that he received legal advice to the effect that he should lodge a general protections claim, the general protections application did not address the issue of being made out of time. I directed the Applicant to file submissions on the Extension of Time Objection by 12:00pm on 6 December 2013. The submissions received did not address the issue of the application being made out of time, but instead addressed specific points made in the Respondent’s Form F8A Employer’s Response regarding the substantive basis of the application. On 16 December 2013, I afforded Mr Mayall another opportunity to provide information on the Extension of Time Objection, to which the Respondent raised strenuous objections. On the same day, Mr Mayall provided submissions on the issue. Mr Mayall’s submissions on these points have not explained why, having been put on notice of the Respondent’s jurisdictional objection on 28 September 2013, he did not lodge a general protections claim until 20 November 2013. The extent of his explanation is that he made the general protections claim only after receiving legal advice on 20 November.

[13] In these circumstances, I am not satisfied the Applicant has provided a credible reason for the delay in making his general protections application.

Any action taken by the person to dispute the dismissal

[14] As indicated above, Mr Mayall took action to dispute his dismissal from French Island Ferries by lodging an unfair dismissal claim with the Commission on 24 July 2013.

[15] The material before me also indicates Mr Mayall has made complaints about his former employer to the following;

1. WorkSafe Victoria about which the Respondent submits that a determination was made by the regulator on 16 August 2013 that the allegations were without foundation 5;

2. Transport Safety Victoria 6; and

3. the Water Police 7.

[16] Mr Mayall's unfair dismissal application was withdrawn by him on 19 November 2013.  The Respondent draws the Commission's attention to Beggs v Login Systems Pty Ltd 8, in which it was held that choice of an ultimately undesirable avenue for the pursuit of a claim is, of itself, not not an adequate or satisfactory explanation that would enliven exceptional circumstances9.

[17] In considering the material submitted in these proceedings, there is no allegation made by Mr Mayall of representative error or of a mistaken intention on his part in initially making an unfair dismissal application instead of making a general protections application.  Instead the evidence is that he made the general protections application only after forming the view that the unfair dismissal matter was unlikely to be capable of proceeding.

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

[18] Mr Mayall submits that no prejudice has been caused to the Respondent as the Respondent has had ‘appropriate time to put its case and the issues are essentially identical’. 10

[19] French Island Ferries made submissions that they would suffer prejudice in the event that an extension of time was granted as they will have to ‘bear the cost and inconvenience of defending a claim without merit’. 11 The Respondent also noted that in relation to Mr Mayall’s unfair dismissal application, Mr Mayall withdrew his application one day after he was meant to make submissions in reply to the French Island Ferries’ submissions regarding jurisdictional issues.12 In a phone call to my Associate on 16 December 2013, Mr Denvir, of French Island Ferries, raised concerns about the process to date, the failure of Mr Mayall to comply with Fair Work Commission deadlines, and the effect on small business.13 I note that the Respondent has engaged legal representation by the firm Scammell Black Mileo.

[20] I also note that the Respondent has had cause to respond to complaints from Mr Mayall in several jurisdictions. In the context of an extension of time application, and the statutory criteria of s.366, prejudice to the employer is considered to mean unfair disadvantage to the employer caused by the delay in filing the application and it has been held that a former employer should not be lightly put to the cost and inconvenience of defending an application lodged out of time unless the interests of justice so dictate 14. Given that the evidence indicates Mr Mayall’s complaints have been, and possibly continue to be, agitated in other jurisdictions, I consider allowing him an extension of time for the making of this application would cause prejudice to the Respondent.

The merits of the application

[21] Beyond the disputed question of whether an extension of time should be granted to Mr Mayall for the making of his application, the basis of his application is a complaint that adverse action was taken against him by French Island Ferries for a prohibited reason, namely that he was dismissed because:

‘3. As the Master I have responsibilities under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 to apply my professional opinion to ensure the safety of the passengers, the vessel and advise the owner where appropriate of such issues.

4. I advised the owner of such safety issues which were not rectified and subsequently refused to operate the vessel.

...

8. When I refused to operate the vessel I was told to take the rest of the day off, that was the last time I was offered work by French Island Ferries’. 15

[22] I note that Mr Mayall’s application does not clearly specify the workplace right that forms the basis for his general protections claim. In his submissions dated 6 December 2013, Mr Mayall responded to the Respondent’s submission that Mr Mayall has not particularised the appropriate sections of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the Marine Act), advising that the relevant sections of the Marine Act are sections 12, 16 and 17. 16

[23] The Respondent submits that ‘[t]here is no allegation of fact made by the applicant which could amount to a breach of General Protections provisions’ and that ‘there is no substantive case to answer’. 17 The Respondent further submits that the Marine Act is not a workplace law or workplace instrument, and that therefore there is no basis to Mr Mayall’s claim. The Respondent relies on Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd18, in which it was held that for a law to be a workplace law, not only must it “regulate”, but “there must be an object of regulation of a particular specified kind — ‘relationships between employers and employees’”19 and that;

“... Common to the definitions of “workplace instrument” and “workplace law” in s 12 of the Fair Work Act is the object of the relationship between employer and employee. Provisions which do no more than use the status of employer or employee as an incidental touchstone for the imposition of duties serving other ends do not fall within the terms of these definitions.” 20

[24] The material provided by Mr Mayall does not draw the necessary connections between his allegations, the provisions of the Marine Act to which he refers, and the need for it to be a workplace law. 21

[25] It is also not entirely clear from the material filed to date how the adverse action, connected with a workplace right, is said to have been taken against Mr Mayall   The Respondent submits that the “applicant last worked for the respondent on 15 July 2013 and after having driven the vessel that day said he would not take it out again” 22.  

[26] The Applicant's submissions also refer to "paid invoices"  and "unpaid invoices" 23.  His General Protections application refers to him being "employed/contracted"24.  I am therefore unclear as to Mr Mayall's status as an employee.  This is relevant only insofar as  the correct characterisation of his relationship with the Respondent may have bearing on the correct characterisation of his workplace rights, whether they have been breached and what should be done as a result. I draw from the uncertainty of his employment status that there may also be uncertainty about his prospects of success were the matter to proceed.

[27] I note that Applicant has made complaints about the Respondent to WorkSafe Victoria, and that the Respondent submits the Authority determined on 16 August 2013 that the allegations were without foundation 25. I note that the Applicant has not contradicted that submission in his response material. I therefore rely upon the Respondent’s submission in this regard and accordingly have formed the view that such part of the Applicant’s claim as may rely upon adverse action for the making of a complaint under occupational health and safety law would have either low or no prospects of success.

[28] The relevant general protections provisions of the Act are set out below.

340 Protection

(1) [When a person must not take adverse action] A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

...

341 Meaning of workplace right

Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or


(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or


(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or


(ii) if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a) a conference conducted or hearing held by FWA;


(b) court proceedings under a workplace law or workplace instrument;


(c) protected industrial action;


(d) a protected action ballot;


(e) making, varying or terminating an enterprise agreement;


(f) appointing, or terminating the appointment of, a bargaining representative;


(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;


(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;


(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);


(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;


(k) any other process or proceedings under a workplace law or workplace instrument.

[29] A “workplace law” is defined by s 12 of the Act as:

(a) this Act; or


(b) the Fair Work (Registered Organisations) Act 2009; or


(c) the Independent Contractors Act 2006; or


(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

[30] Section 12 of that Act also supplies a definition of “workplace instrument”:

“workplace instrument” means an instrument that:

(a) is made under, or recognised by, a workplace law; and


(b) concerns the relationships between employers and employees.

[31] On the basis of the material presently before the Commission, I am not satisfied there are sufficient merits to Mr Mayall’s claim for it to proceed.

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

[32] The Commission’s consideration in respect of this criterion is a consideration of Mr Mayall’s situation in comparison to other persons who may have been dismissed and who allege a breach of the Act’s general protections provisions.

[33] In this regard, the reasons for the delay in making an application become relevant. While the Applicant’s unfair dismissal application was made within time, the delay between the time of the employer’s jurisdictional objection and the making of this application is not sufficiently explained.

[34] I have formed the view that granting Mr Mayall’s application for an extension of time would represent unfairness between him and others who might claim a breach of the Act’s general protections provisions.

Decision

[35] Having considered all of the circumstances relating to Mr Mayall’s application to the Commission I am not satisfied there are exceptional circumstances in the manner envisaged by s.366 of the Act for the grant of a further period to Mr Mayall for the making of an application under s.365.

[36] An Order dismissing Mr Mayall’s application is issued at the same time as this Decision.

COMMISSIONER

 1   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 2   U2013/11870

 3   Applicant’s submissions dated 16 December 2013, point 1

 4   Respondent’s submissions dated 13 December 2013, p 1

 5   Respondent's Amended Submissions, 16 December 2013, para 6

 6   Application for FWA to deal with a General Protections Dispute, Form F8 item 2.2 (7); and Employer’s Response, Form F8A item 4.3

 7   Application, Form F8, item 2.2 (7)

 8   [2013] FWC 5357

 9   Ibid, at [37]

 10   Applicant’s submissions dated 16 December 2013, point 3

 11   Respondent’s submissions dated 13 December 2013, p 3

 12   Respondent’s submissions dated 13 December 2013, p 2

 13   16 December 2013, 11:55am.

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at 299

 15 F8 Application file by the Applicant on 20 November 2013, 2.2

 16   Applicant’s submissions dated 6 December 2013

 17   Respondent’s amended submissions dated 16 December 2013, pp 3-4

 18 [2012] FCA 1222

 19   Ibid, at [32]

 20   Ibid, at [33]

 21   See for example, Applicant’s Submissions, 6 December 2013, at response to item 2.3

 22   Respondent's Submissions, 13 December 2013, page 3

 23   Applicant's Submissions  6 December 2013, pages 1 & 3

 24   Application, Form F8, item 2.2 (1)

 25   Respondent's Amended Submissions, 16 December 2013, para 6

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