Mr David Humphrey v Incitec Pivot Limited

[2019] FWC 265

[2019] FWC 265

FAIR WORK COMMISSION

DECISION

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

Mr David Humphrey
v
Incitec Pivot Limited
(C2018/6123)

DEPUTY PRESIDENT ASBURY BRISBANE, 31 JANUARY 2019

Application to deal with contraventions involving dismissal – Extension of Time – Whether further period to make application should be granted. – No exceptional circumstances – Application dismissed.

[1] This Decision concerns an application by Mr David Humphrey under s. 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a General protections dispute in relation to his dismissal by Incitec Pivot Limited (IPL). Mr Humphrey states in his Form F8 General protections application that he was dismissed on 20 September 2018. The application was made on 31 October 2018.

[2] By virtue of s. 366(1) of the Act an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2). The application was made 20 days outside the time required in s. 366(1) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

[3] IPL did not consent to participate in a conciliation prior to the determination of whether Mr Humphrey should be granted a further period in which to make his application. Directions were issued requiring Mr Humphrey to file a statement setting out the basis for the submission that there were exceptional circumstances justifying the grant of a further period in which to make his application, by 4.00pm on Thursday 22 November 2018. IPL was directed to file and serve any material in relation to the matter by 4.00pm on Thursday 29 November 2018.

[4] The matter was listed for Objections Conference/ Hearing on 5 December 2018 by telephone. Mr Humphrey attended by telephone with his representative, Mr Ravi Henderson. Ms Sally Stokes, Employee Relations Manager and Mr Paul Smith, Employee Relations Advisor appeared on behalf of IPL. Prior to the hearing, Mr Humphrey indicated that he needed to travel overseas for significant personal reasons. Mr Humphrey did not seek an adjournment and stated he was able to attend the hearing by telephone while overseas. At the hearing it became apparent that Mr Humphrey did not have access to his own material which he had filed in the Commission. I also communicated to Mr Humphrey that he had not provided sufficient information in his statement about the reasons for the delay in making his application. In consideration of Mr Humphrey’s personal circumstances and the fact that he was currently overseas, I adjourned the hearing to a time when Mr Humphrey was back in Australia and had access to all of his material. I also gave Mr Humphrey a further opportunity to provide more material including evidence in relation to the reason for the delay, and requested IPL provide further documents that were referred to in its statement that were not provided to the Commission.

[5] The hearing was resumed on 18 December 2018. Mr Humphrey appeared on his own behalf and Mr Smith and Ms Stokes appeared for IPL.

EVIDENCE AND SUBMISSIONS

[6] The background to the present matter can be summarised as follows. Mr Humphrey’s employment was terminated on 20 September 2018 and Mr Humphrey filed an Unfair Dismissal application in the Commission on 23 September 2018. Mr Humphrey states he then went overseas from 28 September 2018 to 11 October 2018 for a holiday that had been booked prior to his dismissal and that IPL was aware of this having approved leave prior to Mr Humphrey’s dismissal.

[7] IPL received Mr Humphrey’s unfair dismissal application on 2 October 2018. IPL filed a Form F3 Employer Response in the Commission on 8 October 2018 by email which was copied to Mr Henderson who was nominated in the application as Mr Humphrey’s representative. In its Form F3 Employer Response at question 2.2 IPL raised a jurisdictional objection to the unfair dismissal application asserting that Mr Humphrey earned over the high income threshold (currently $145,400), and therefore was not eligible to make an unfair dismissal application. IPL also stated at question 2.2;

“The applicant is not protected from unfair dismissal in accordance with section 382 of the Fair Work Act 2009.

The applicant received a salary of $170,000 plus superannuation ($16,500) at the time of dismissal (and for the duration of his employment). This means the applicant’s annual rate of earnings was substantially above the current high income threshold of $145,000.

The applicant was employed as Plant Manager. No enterprise agreement applied to the applicant in this position and the applicant was not covered by a modern award.”

[8] Mr Humphrey’s unfair dismissal application was listed for conciliation before a Fair Work Commission Conciliator on 31 October 2018. Mr Humphrey states that during the conference he had a discussion with the Conciliator, who indicated that if it was the case that Mr Humphrey did earn over the high income threshold then the unfair dismissal application could not proceed. On the same date, Mr Humphrey discontinued his unfair dismissal application and filed a general protections application. 1

[9] During the hearing in relation to whether Mr Humphrey’s should be granted a further period to file his general protections application, I put to Mr Humphrey the proposition that IPL had indicated on 8 October 2018 (in response to his unfair dismissal application) that he earned substantially more than the high income threshold and that he reasonably should have known that those assertions were correct. Mr Humphrey stated that his understanding at the time was that because he had only worked for IPL for seven months, he had not earned over $145,000 and that was the reason he pursued an unfair dismissal application. Mr Humphrey also said that he took no steps to verify this information as he was on holiday at the time.

[10] Mr Humphrey stated that he did not have any legal representation, and had formed this view with a family member who was assisting him in making the application. Mr Humphrey also submits that he was unable to procure adequate legal advice as he only had five working days within the 21 day timeframe when he was in the country, and that residing in a rural area added a further difficulty. Mr Humphrey also stated that IPL deliberately withheld its response to his unfair dismissal application as it was filed on what was the 21^st day of Mr Humphrey’s dismissal. IPL submits that the response to the unfair dismissal application was filed within seven days of receiving the application, and was filed three days before the expiry of the 21 day timeframe.

[11] Mr Humphrey conceded at the hearing on 18 December 2018 that he received IPL’s response on 8 October 2018 stating that he earned over the high income threshold. In response to my direction after the hearing on 5 December 2018 requiring that Mr Humphrey file a statement outlining the reasons for the delay in making his general protections application and in particular the actions that he took to contest his dismissal after receiving IPL’s response to the application, Mr Henderson stated on behalf of Mr Humphrey that no action was taken following receipt of the response other than attendance at a conciliation conference on 31 October 2018 in relation to the unfair dismissal application and filing the general protections application on that date.

[12] In relation to merit, Mr Humphrey submitted that he was dismissed for allegedly failing to wear a seatbelt in a vehicle and there was one other occupant of the vehicle so that allegation could not be verified. Mr Humphrey also maintained that he could demonstrate that other vehicles on sites did not have seatbelts and were still in use. Further no employee had been dismissed for not wearing a seatbelt in these vehicles. Mr Humphrey also contends that the alleged offence was not a breach of Victorian occupational health and safety laws given the risks involved: that the incident occurred outside working hours; no other vehicles were on the site at the time; the distance driven was less than 300 metres; and the speed at which the vehicle was driven did not exceed 30 kms per hour.

[13] In the Form F8 General protections application, Mr Humphrey contends that he was dismissed for not wearing a seatbelt in breach of OHS Policy and that the employer has contravened the Act in relation to his workplace rights. In response to a question in the Form F8 as to how the actions of the employer have contravened the relevant sections of the Fair Work Act, the following statement appears:

“Incitec Pivot dismissed David Humphrey for not wearing a seat belt on a 300 metre journey (less than 30 kmh speed limit) as they did not want to pay out the terms of his employment contract (6 months payout on redundancy) as the plant faces imminent closure. Another employee (Site OHS co-ordinator) committed same offense on the same day (2 hours later) and received a warning. David Humphrey was dismissed.”

[14] The Form F8 also states that Mr Humphrey seeks the following in relation to remedy: dismissal overturned to a redundancy and financial fulfilment of employment contract. The assertions made in the Form F8 and the remedy sought are in essentially the same terms as were set out in the earlier Form F2 Unfair dismissal application made by Mr Humphrey on 23 September 2018. In relation to why the application is not filed within the 21 day time period the following statement appears:

“Representation Error.

Unfair dismissal application was lodged instead of General Protections Order. All other aspects of the case are the consistent. Substance of the case has not changed.

No legal, union or industrial relations representation. Just family member advising. Only found out today that the wrong application had been made.”

[15] At the hearing on 18 December 2018 Mr Humphrey maintained that the Plant at which he had been employed was facing imminent closure and that his contract of employment provided for a six month payment in the event that his employment was terminated for this reason. Mr Humphrey said that the dismissal for the alleged safety breach was to avoid paying him this amount and that this was apparent on the basis that he was dismissed over a “petty thing like driving without a seatbelt” 2. Mr Humphrey accepted that the plant had not closed at the point the hearing was conducted.

[16] IPL filed detailed and comprehensive submissions objecting to the further period being granted. In summary it was submitted that the fact that Mr Humphrey lived in a rural area; took an overseas holiday; was ignorant of jurisdictional issues with his unfair dismissal application and difficulty obtaining legal representation does not constitute exceptional circumstances. IPL also submits that it identified the jurisdictional issue with respect to Mr Humphrey’s unfair dismissal application within the 21 day period and that he could have undertaken some research – including by taking an on-line quiz on the Commission’s website regarding eligibility for making an unfair dismissal application – either before he lodged his unfair dismissal application or on receipt of the response filed by IPL on 8 October 2018.

[17] IPL further submits that Mr Humphrey’s vague and ambiguous general protections application is without merit and that Mr Humphrey was dismissed for a serious safety incident involving a breach of IPL’s “Rules to Live By”. As Plant Manager for the Portland site Mr Humphrey had responsibility for the safe operation of the site and ignored a critical safety requirement.

CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED

The approach to deciding whether a further period should be granted

[18] As previously noted, s. 366(1) of the Act requires that a general protections application under s. 365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.

[19] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a General protections application to be made as follows:

“(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 similar position.”

[20] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking the grant of a further period in which to make an application. 3 A decision as to whether a further period to make an application should be granted, involves the exercise of discretion.4 The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

•  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

•  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.⁵

[21] It is also not correct to construe exceptional circumstances as being only an unexpected occurrence, although frequently it will be. 6 Further, it is also necessary to consider all relevant circumstances even where some or all are not exceptional in order to determine whether in combination, the circumstances may be regarded as exceptional.

[22] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account each if the matters in s.366(2) of the Act. I will consider each of those matters in turn.

The reason for the delay – s. 365(2)(a)

[23] The reasons for the delay which can be gleaned from the information provided to the

Commission by Mr Humphrey are: representative error; inability to obtain legal or other representation; filing the wrong application; absence on an overseas holiday; Mr Humphrey resides in a rural area; and an allegation that IPL delayed its response to Mr Humphrey’s unfair dismissal remedy until the 21 day period had expired so that he was not aware of the jurisdictional issue with his earlier unfair dismissal application.

[24] As previously stated, Mr Humphrey was dismissed on 20 September 2018 and was required to file his general protections application by 11 October 2018. His unfair dismissal application was filed on 23 September 2018. From 28 September until 11 October 2018 Mr Humphrey was overseas on a pre-planned holiday. On 8 October 2018 IPL filed its response to Mr Humphrey’s unfair dismissal application clearly setting out a jurisdictional objection on the grounds that Mr Humphrey’s annual income exceeded the high income threshold. When Mr Humphrey returned to Australia on 11 October 2018 he took no action to investigate whether the jurisdictional objection had any basis. It was only after attending a conciliation conference into his unfair dismissal application on 31 October 2018 that Mr Humphrey filed a general protections application.

[25] I do not accept that any of matters advanced by Mr Humphrey to explain the delay in filing his general protections application constitute exceptional circumstances. Mr Humphrey’s representative was a family member with expertise in occupational health and safety. As such that representative did not owe any duty to Mr Humphrey in the way that a lawyer or paid agent would owe a duty to take reasonable care and the necessary steps to file an application within the required time. The fact that Mr Humphrey resides in a rural area is not exceptional – many persons who reside in rural areas are able to make applications to the Commission within the required time. It is not exceptional that Mr Humphrey went on an overseas holiday. Mr Humphrey did not leave for his holiday until 28 September which gave him over one week to make an application. Mr Humphrey was able to make an application for an unfair dismissal remedy before he departed for his overseas trip notwithstanding that he lives in a rural area. The fact that Mr Humphrey, with the assistance of a family member, picked the wrong application to make, is not an exceptional circumstance. Ignorance of the relevant legislative provisions is also not an exceptional circumstance.

[26] On 8 October 2018 IPL filed and served its response to Mr Humphrey’s unfair dismissal application. There is no basis for the assertion that IPL delayed its response deliberately so that Mr Humphrey was prevented from filing his general protections application within the 21 day period. Contrary to Mr Humphrey’s submission, IPL’s response was filed three days before the expiration of the 21 day period and clearly indicated that there was likely a significant jurisdictional issue with the application. Mr Humphrey accepted that he received the response on 8 October. It is also the case that Mr Humphrey returned from his overseas trip on 11 October.

[27] The response of IPL should have put Mr Humphrey on notice and caused him to undertake some investigation. Mr Humphrey took no step to ascertain whether the information in the response was correct. While Mr Humphrey moved rapidly following the conciliation conference on 31 October by withdrawing his unfair dismissal application and filing a general protections application, he has provided no explanation as to why he did not take these steps at an earlier time. Mr Humphrey was a plant manager for a large employer and there is no apparent reason why he did not carry out some investigation about jurisdictional barriers to his unfair dismissal application. The fact that Mr Humphrey disregarded the contents of the response is not consistent with his assertion that the timing of the response impacted on his ability to file his general protections application within the 21 day period.

[28] I do not accept that any of the reasons for the delay in filing the application advanced by Mr Humphrey – considered individually or in combination – are exceptional circumstances. This is a matter that weighing against the grant of a further period in which to make the application.

Any action taken by Mr Humphrey to dispute the dismissal – s. 366(2)(b)

[29] Other than filing an unfair dismissal application on 28 September 2018 that was jurisdictionally barred, Mr Humphrey did nothing to dispute his dismissal until 31 October 2018 when he filed a general protections application, 41 days after he was dismissed and 20 days outside the required time frame. This is a matter weighing against the grant of a further period in which to make the application.

Prejudice to IPL including prejudice caused by the delay – s. 366(2)(c)

[30] IPL asserts that it will be prejudiced if the further period is granted on the basis that it will be required to allocate resources to defend what it considers to be an unfounded claim that has not properly been considered since lodgement. Other than the having to defend the claim, which would be the case had it been made within the required time, there is no prejudice to IPL caused by the delay. This is not a case where a lengthy delay may result in witnesses not being available or failing to recollect events. This is a matter which favours the grant of a further period.

The merits of the application – s. 366(2)(d)

[31] In Kornicki v Telstra-Network Technology Group 7 the Commission considered the principles applicable to the exercise of the discretion to extend time under 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.” 8

[32] It is clear that there are factual disputes between the parties in relation to the application of the policy and whether there was an ulterior motive for Mr Humphrey’s dismissal. At that time this application was heard the Plant remained operational and there was no evidence of it closing. Mr Humphrey was not able to clearly articulate how his claim came within the general protections provisions however it is a claim that could be articulated in that framework. It is also the case that the application has the appearance of an unfair dismissal claim in another guise. I am not satisfied that the application has no merit so that this factor weighs against the grant of a further period. Neither am I satisfied that there is such apparent merit that it weighs in favour of an extension. Merit is a neutral factor in this case.

Fairness as between Mr Humphrey and other person in a like position – s. 366(2)(e)

[33] There are no other employees of IPL who are in a like position. If this consideration is approached on the basis of cases generally where consideration has been given to whether extensions of time should be granted, then as a general rule the matters raised by Mr Humphrey are not matters that would result in a further period being granted and many persons who have raised similar matters have had extensions refused. Fairness is a neutral factor in this case.

CONCLUSION

[34] I am not satisfied that there are exceptional circumstances taking into account the matters in s. 366(2) of the Act such that an extension of time should be granted. The application must be dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr D Humphrey on his own behalf.

Mr P Smith on behalf of IPL.

Hearing details:

18 December.

2018.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR703910>

 1   Transcript 18 December 2018 at PN57.

 2   Transcript 18 December 2018 at PN51-52.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

 4   Halls v McCardle and Ors [2014] FCCA 316.

5 Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 6   Nulty v Blue Star Group[2011] FWAFB 975 at [13].

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

 8   Ibid