Mr Christopher Parry v University of South Australia

[2020] FWC 2650

[2020] FWC 2650

FAIR WORK COMMISSION

DECISION

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

Mr Christopher Parry
v
University of South Australia
(C2019/7132)

DEPUTY PRESIDENT CROSS SYDNEY, 20 MAY 2020

Application to deal with contraventions involving dismissal.

[1] On 21 November 2019, Mr Christopher Parry (“the Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant was employed, by the University of South Australia (“the Respondent”). The Applicant commenced his employment with the Respondent on 7 May 2019. His dismissal took effect on 8 October 2019, and he was notified of his dismissal on that date.

[2] General protections applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by 29 October 2019. The application was therefore lodged outside of the time prescribed and was lodged 23 days after the last day on which such an application could have been made.

[3] On 4 March 2020, a Directions Hearing was conducted to program the manner in which the Applicant’s application be allowed an additional period within which to lodge his application (“the Application”) would be determined (“the Directions”). The Directions were:

1. Christopher Parry (the Applicant) is directed to resend his email containing his Outline of Submissions to the Chambers of Deputy President Cross at [email protected] (has already been received by Chambers) and to the Respondent.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 18 March 2020.

3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent’s witness statements and documents by 4pm on 1 April.

4. The parties are directed that the matter will be determined on the materials filed unless an application to hear the matter in person is granted.

[4] In the Directions Hearing the parties were specifically directed to the provisions of s.366(2) of the Act, and they were advised to address the considerations outlined therein where appropriate.

[5] In accordance with the Directions:

(a) On 4 March 2020, the Applicant re-sent his Outline of Submissions;

(b) On 18 March 2020, the Respondent filed an Outline of Submissions, a Statement of Dr Nicola Massey-Westropp, Senior Lecturer, Anatomy and Occupational Therapy, School of Health Sciences dated 15 March 2020, and a Statement of Ms Natalie Hamood, Deputy Director: People, Talent and Culture dated 17 March 2020.

(c) On 30 March 2020, the Applicant filed a Response to the Respondent’s Submissions and a separate Response to the Statement of Dr Massey-Westropp.

Relevant Facts

[6] Review of the materials relied upon by the Applicant and Respondent discloses the following relevant facts:

(a) The Applicant was engaged as a casual employee by the Respondent on a series of three casual contracts, beginning on 7 May 2019, to provide casual laboratory support in the Anatomy Laboratory.

(b) The ultimate responsibility for the Anatomy Laboratory rested with Dr Nicola Massy-Westropp, who also had direct control of the day to day work of the Technical Officers in the Anatomy Laboratory. Dr Massy-Westropp had oversight of all Anatomy Laboratory staff, including the Applicant during the period of his employment.

(c) On 8 October 2019, due to the Applicant’s alleged failure to perform the daily duties required of him for a number of days during the preceding week, Dr Massy-Westropp made the decision to cease the Applicant’s engagement. Dr Massy-Westropp communicated this decision verbally to the Applicant on 8 October 2019, and the University provided payment in lieu of the 24 hours’ notice contractually required. The last day of the Applicant’s employment with the University was 8 October 2019.

(d) On 16 October 2019, the Applicant wrote to the Vice Chancellor of the Respondent expressing concerns with respect to his employment.That email was in the following terms:

“Hello,

During the short time I worked at UniSA I was negligently exposed to illegally high levels of a carcinogen.

When the test results came in to confirm this I was offered inadequate PPE. When I expressed my concerns I was fired.
Further to this.
The facilities are not built for the purposes they are used for and do not meet the standards.

Up until the single testing mentioned above no monitoring has been done.

Staff and students are still being exposed to unacceptable levels. Is there anyone I can discuss this with?

Regards
Chris Parry”

(e) After receiving the above email the Respondent commenced an investigation into the safety concerns raised by the Applicant (the “WHS Investigation”), commencing on 16 October 2019. The Respondent, through Ms Hamood, replied to the Applicant the same day by email as follows:

“Dear Chris

Thank you for your email. The Vice Chancellor has referred your concerns to People, Talent and Culture, and our Associate Director Safety and Wellbeing, Ms Jenny Hardy will look to address your safety concerns.

In order to assist you in this matter, can you please provide me with further particulars of the matters you have set out below? It would be beneficial to understand where these incidents took place; who you reported this to; details of staff involved and actions taken to address the issues. This information will assist us to explore your concerns.

The University is committed to providing for the safety and wellbeing of our staff. If you could forward me this information at your earliest convenience, it would be much appreciated.

Kind regards Natalie Hamood”

(f) On Thursday, 17 October 2019, at 10:06am, the Applicant provided the further detail requested in the above email.

(g) On 19 October 2019, Ms Hamood referred the matter to Ms Anne-Marie Edmonds, to investigate the issues with respect to Mr Parry's employment and the termination of his employment. On that date the Respondent also commenced an investigation into the circumstances of the Applicant’s concerns with respect to matters raised to the Vice Chancellor about the termination of his employment (the “Termination Investigation”).

(h) On 21 October 2019, at 3.01pm, in response to further information provided by the Applicant in his email of 17 October 2019, regarding the WHS Investigation, Ms Hardy wrote the following email to the Applicant:

“Dear Chris,

Natalie Hamood has referred your concerns about laboratory safety in relation to potential formaldehyde exposure to myself and my team .

I have started an investigation and now that you have provided us with the additional information in the email below we should be able to respond to you more fully.

It will take a few more days to investigate as we need to consult others who have some knowledge or involvement and subject to their availability hope to come back to you by the middle of next week.

Sincerely Jenny Hardy”

(i) On 21 October 2019, at 7.34pm, the Applicant sent an email to the Respondent which stated:

“Do you have procedures in place to deal with my wrongful dismissal or should I seek legal redress?”

(j) On 22 October 2019, at 6.25pm, Ms Natalie Hamood responded to the Applicant’s above enquiry regarding wrongful dismissal, by stating:

“Thank you for your email. We received the further information you have provided specific to your concerns. I am reviewing the matter in line with applicable University policy and procedures and will provide a response to you in due course.”

(k) On 29 October 2019 the Respondent informed the Applicant that there would be a delay in the WHS Investigation by way of an email from Ms Hardy as follows:

“Dear Chris,

I just wanted to come back to you to let you know that the investigation into your concerns is still in progress as a key person was unavailable until just yesterday.

We will endeavour to provide our response to you as soon as possible once the investigation is complete. Sincerely,

Jenny Hardy”

(l) On 5 November 2019 the Respondent states that the WHS Investigation and the Termination Investigation were completed. The Respondent does not state at what time on 5 November 2019 those investigations were concluded, but at 7.58pm on that date, the Applicant emailed the respondent as follows:

“Hello,

At this point I am still hoping that we will be able to resolve these issues amicably. However, you have been investigating them for three weeks and have had plenty of time to assess the merits of my claims. I feel I am being kept in the dark, my patience is strained and I've received no income for four weeks. At what point do we discuss how we proceed?

Regards Chris Parry”

(m) On 21 November 2019, the Applicant lodged his application pursuant to s.365 of the Act. In answer to the question as to why the document was filed out of time, the Applicant stated:

“My former employer is investigating this matter and is going to respond as soon as their investigation is complete - I'm still waiting for that response.

I also had trouble finding a solicitor to check this application - I took the first option available to me and he cancelled a week after the appointment was made.”

(n) On 22 November 2019, following what the Respondent has described as “a period of consideration”, the Executive Director: People, Talent and Culture provided a formal response to the Applicant, though that response focussed on the WHS Investigation and not the Termination Investigation.

(o) On 25 November 2019, the Vice Chancellor received correspondence from the Commission indicating that Mr Parry had lodged a General Protections Application Involving a Dismissal on 21 November 2019.

Consideration

[7] Section 366 of the Act determines the permissible time limit for a general protections application. Section 366(1) of the Act provides:

“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).”

[8] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(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.”

[9] It is clear from the structure of s.366(2) of the Act that 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 show exceptional circumstances.

[10] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[11] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd 1:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[12] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd 2:

“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.” (Emphasis added)

[13] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[14] The Applicant’s answers to Question 1.4 of the Form F8 (recorded at [6(m)] above are instructive. The Applicant was waiting for a response from the Respondent regarding the investigations, however, he had also apparently completed the Form F8 Application but was having trouble finding a Solicitor to “check” that application.

[15] Having completed a draft of the Form F8 Application, the Applicant would have been aware of the 21 day period within which an application should be made. He does not say on what date he drafted the Form F8 Application, but having waited a week for attendance upon a Solicitor I consider it fair to assume that the Applicant would have become aware of the 21 day period at least a week before he eventually filed the Form F8 Application, and possibly some time before that.

[16] The Respondent submitted that the Applicant’s reasons for the delay in filing the Application should not be considered sufficient for the purposes of granting an extension of time because:

(a) It cannot be considered that a former employee raising concerns with their former employer, and that employer engaging in an internal review, meets the test of “exceptional circumstances”, being, “out of the ordinary course, or unusual, or special, or uncommon”, as this is a circumstance experienced by employers “regularly or routinely” where employment is terminated at the initiative of the employer; and

(b) No previous decision of the FWC or its antecedents can be identified where an extension of time was granted relying solely on the fact that the dismissal was disputed with the employer.

[17] The Respondent’s submission, however, downplays the Respondent’s involvement in the delay. In particular:

(a) On 21 October 2019, eight days before the 21 day period expired, the Applicant was advised “It will take a few more days to investigate as we need to consult others…”;

(b) On 22 October 2019, after making his enquiry about wrongful dismissal the day before, the Applicant was advised the Respondent “will provide a response to you in due course”;

(c) On 29 October 2019, the day by which the Form F8 Application should have been filed, the Applicant was advised “… the investigation into your concerns is still in progress as a key person was unavailable until just yesterday. We will endeavour to provide our response to you as soon as possible once the investigation is complete”; and

(d) Notwithstanding the above statement, while the investigations were completed on 5 November 2019, and the Applicant sought the results late on that date, the Applicant was not advised of the results until 22 November 2019, some 17 days later.

[18] The Applicant certainly does not have an acceptable explanation for the whole of the delay from 30 October to 21 November 2019. I find, however, that the Applicant has an acceptable reason for approximately half that period of delay. The Applicant did not impose timeframes for response regarding the WHS Investigation and the Termination Investigation. The Respondent imposed, and thereafter failed to comply with, timeframes for response, and it did so in circumstances where persons including Ms Hamood, the Director: People, Talent and Culture, would most likely have been aware of the 21 day limitation period.

[19] As the Applicant does not have an acceptable explanation for half the period of the delay from 30 October to 21 November 2019, this factor weighs in the Respondent’s favour, but with a partial reduction in weight.

(b) Action taken by the person to dispute the dismissal

[20] The Applicant certainly took a number of steps to put the Respondent on notice that he was challenging the dismissal, and the Respondent participated in that dispute by conducting the WHS Investigation and the Termination Investigation. Accordingly, this factor weighs in the Applicant’s favour.

(c) Prejudice to the employer

[21] The Respondent accepted that no prejudice has been caused to the Respondent by the delay by the Applicant. The absence of prejudice does not establish a basis for extension of time. In the circumstances of this matter I consider this a neutral consideration.

(d) Merits of application

[22] This is a general protections claim. In order to maintain such a claim, the Applicant must show that adverse action took place and that this action took place because of a prohibited reason. The parties have relied upon significant materials of a scientific nature, but the issue of merits goes to the legal issue at the heart of the Form F8 Application.

[23] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd 3:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[24] As these matters are contested, I am unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

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

[25] As to fairness between the Applicant and other persons in a similar position, the Respondent submitted as follows:

“If the Commission is minded to grant the extension of time for this Application, it would be because it has formed the view that the mere act of disputing a dismissal with the employer meets the definition of “exceptional circumstances”. As previously noted in this submission, the context of previous cases contemplated by the FWC have considered more than just the act of an employee disputing a dismissal at the heart of the decision to grant the extension. To that end, to grant the application in this circumstance would create a novel precedent for future circumstances where an employee has simply ignored the requirements of s365 of the FW Act on the basis that they have raised the matter with their former employer.”

[26] I reject that submission on the basis that it is incorrect to characterise this matter as no more than just the act of an employee disputing a dismissal being at the heart of the decision to grant the extension. Such a truncated characterisation disregards the very real involvement of the Respondent in the delay.

[27] Neither party made any other material submissions on this issue. Consequently, no weight can be given to this consideration.

Conclusion

[28] In its Outline of Submission, when addressing each factor for consideration, the Respondent had put that each factor on its own did not constitute exceptional circumstances. For example, regarding prejudice to the Respondent, it had submitted:

“On that basis, the Respondent submits that the fact that limited or no prejudice has been caused to the Respondent as a result of the Applicant’s delay does not constitute “exceptional circumstances” for the purposes of section 366(2) of the FW Act.”

[29] That submission was of course correct. As noted above, 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.

[30] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight, were acceptable reason for delay in the Respondent’s favour, and action to dispute the dismissal in the Applicant’s favour. Apportioning appropriate weight to each factor, and with greater weight accorded to the Applicant’s action to dispute the dismissal, I consider the balance weighs in the Applicant’s favour, and so find that exceptional circumstances exist.

[31] Having been persuaded that, in the overall balance, exceptional circumstances exist, I extend the period of time for the filing of the Applicant’s Form F8 Application to 21 November 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR719523>

 1   [2014] FWCFB 2149 stated at [30].

 2   [2018] FWCFB 901 noted at [39].

 3 Unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000. Print T2421 stated at [14].