Mr Garry John Roberts v Mungo Lodge Investments Pty Ltd T/A Mungo Lodge

[2017] FWC 5652

[2017] FWC 5652

FAIR WORK COMMISSION

DECISION

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

Mr Garry John Roberts
v
Mungo Lodge Investments Pty Ltd T/A Mungo Lodge
(C2017/2836)

COMMISSIONER CIRKOVIC MELBOURNE, 30 OCTOBER 2017

Application to deal with contraventions involving dismissal – effective date of dismissal – whether to extend time for lodging the application.

[1] On 26 May 2017, Mr Garry John Roberts (Applicant) lodged a general protections application (application) with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Mungo Lodge Investments Pty Ltd T/A Mungo Lodge (Respondent). The Respondent lodged their response F8A – Response to General Protections Application on 9 June 2017. 1

[2] The Applicant commenced employment with the Respondent on 5 March 2017. The Applicant was employed as a chef. The Applicant in his Form F8 – General protections application form provided two alternative dates of when he alleges his effective date of dismissal took place. At question 1.1 of his application form, the Applicant submitted that he was dismissed on 3 May 2017. 2 At question 1.3 of the application form, the Applicant submitted that he was terminated on 4 May 2017 and that his dismissal took effect on this date.3 At the telephone hearing before me on 7 July 2017, the Applicant submitted that this was incorrect and he was mistaken.4 The Respondent submitted that the dismissal took effect on 4 May 2017 via telephone.5 Following the production of telephone records by the Respondent, the Applicant confirmed that he was terminated during a telephone call with the Respondent on 4 May 2017 and that the dismissal took effect on that date.6

[3] For the reasons set out below, I have concluded that the dismissal having taken effect on 4 May 2017 was lodged 1 day out of time. 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

[4] The Applicant submits that he was dismissed on the basis that he had secured alternative employment on his rostered days off. The Applicant submits that he informed the Respondent that he was negotiating the possibility of hosting a talent quest one night per week for a six week period. The Applicant submits that he asked the Respondent if he would be able to undertake this role without this affecting his position as a chef with the Respondent. The Applicant further submits that the Respondent was agreeable to this. The Applicant submits that he was in negotiations with the alternative employer when the Respondent took adverse action against him by dismissing him over the telephone. A breach of ss.340 and 346 of the Act.

Legislative scheme

[5] Subsection 366(1) of the Act provides that an application under section 365 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).

[6] 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.

[7] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 7where the Full Bench said:

“[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.” [Endnotes not reproduced]

[8] 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

[9] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[10] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”[Endnotes not reproduced]

Background

[11] On 8 June 2017, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the parties to file and serve submissions as to an extension of time 8. On 23 June 2017, I listed the matter for hearing.

[12] At the telephone hearing on 7 July 2017, the Applicant appeared on his own behalf. Mr Burgess, the owner of the Respondent appeared on behalf of the Respondent.

Effective Date of Dismissal

[13] There was a dispute about the date on which the Applicant’s dismissal took effect.

[14] At the telephone hearing on 7 July 2017, the Applicant submitted alternate dates as to when his dismissal took effect. 9

[15] I stood the matter down for 7 days to enable the parties to produce the relevant telephone records. 10

[16] On 9 July 2017, the Respondent filed telephone records confirming that the Respondent telephoned the Applicant on his mobile on 4 May 2017.

[17] The Applicant did not provide the Commission with any telephone records.

[18] On 17 July 2017, during a telephone discussion with my Associate the Applicant confirmed that he had received the Respondent’s telephone records and that the termination conversation did in fact occur on 4 May 2017. 11

[19] On 19 July 2017, my chambers sent correspondence to the parties confirming that in light of the telephone records provided by the Respondent and the Applicant’s confirmation that the termination conversation occurred on 4 May 2017, the application was lodged 1 day out of time. In that correspondence, the Commission sought clarification from the Applicant, as to whether he wished to proceed with his extension of time application and further, whether he wished to address the Commission as to the criteria in s. 366(2) of the Act. The parties were directed to advise by no later than 5.00 pm, Friday 21 July 2017. 12

[20] The parties failed to respond to this correspondence.

[21] On 25 July 2017, my Associate telephoned the Applicant to follow up on the correspondence of 19 July 2017 and asked the Applicant via voicemail to telephone or email my Chambers as soon as possible. 13

[22] On 28 July 2017, my chambers emailed the Applicant and advised that I would determine the extension of time application on the material currently before me, if I did not receive a response to that correspondence by close of business on 11 August 2017. 14

[23] The Applicant failed to respond to the email of 28 July 2017.

[24] Accordingly, I have determined this application on the materials that were filed by the parties and the submissions made at the telephone hearing on 7 July 2017.

Findings – Effective Date of Dismissal

[25] A termination of employment ‘does not take effect unless it is communicated to the employee whose employment is being terminated.’ 15

[26] On the evidence before me and in light of the Applicant’s confirmation to my Associate via telephone that the termination phone call occurred on 4 May 2017, I find that the dismissal took effect on 4 May 2017.

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

[27] 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

Relevant chronology of events and reasons for delay

[28] In response to a question from the Commission, as to what took place after 4 May 2017 and up to including the date that the Applicant filed his application, 16 the Applicant submitted that:

• he was not sure how to go about the whole thing; 17



• he could not get an appointment with Centrelink until 12 days after his dismissal; 18



• it was not until he went to Centrelink to register for Newstart benefits and explained what had happened, that he was advised to contact the Commission; 19



• he rang the Commission and they advised him that they would send him the relevant forms and information. He received the forms and he went and emailed the materials through to the Commission; 20
• he could only access email through the public library and that approximately 12 days after his dismissal took effect and he went to see Centrelink, he went to the library; 21



• when he accessed the Fair Work Commission website from the Library, he was aware that after reviewing the material on the website that the application had to be made within 21 days; 22



• three days after the Applicant filed his application, the Applicant was advised that pages of his application were missing. The Applicant emailed the missing pages of his application to the Commission on 30 May 2017. 23

[29] The Respondent submits that the Applicant had enough time to lodge his application within the designated timeframe and that there were no exceptional circumstances. 24

[30] For this consideration there must be an acceptable reason for the delay  25 and this must be for the whole period that the application was delayed.26 I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[31] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 27

[32] The Applicant did not provide any submissions regarding any action taken to dispute his dismissal. The Respondent did not file any submissions addressing this criterion.

[33] This factor is a neutral consideration in considering whether to exercise the discretion to allow a further period for the Applicant to lodge his application.

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

[34] Prejudice to the employer will go against the granting of an extension of time. 28

[35] The Applicant submitted that he did not think the lateness of his application had caused his employer disadvantage or unfairness. 29

[36] The Respondent submits that the lateness of the application has caused the business disadvantage or unfairness and that the Applicant had more than enough time to either contact the Respondent to dispute his dismissal or lodge his application. 30

[37] Whilst I note the Respondent’s submissions, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.

(d) Merits of the application

[38] The Applicant submitted that he was dismissed because he was negotiating the possibility of hosting a talent quest one night per week whilst continuing to work with the Respondent. 31

[39] The Respondent submitted that the Applicant was dismissed because he was unable to fulfil the duties of his role. The Respondent submitted that the Applicant was unable to attend work on a Friday and Saturday which is the Respondent’s busy period. The Respondent further submitted that the Applicant had no means of transport to and from work other than arranging transport through the Respondent and that the Respondent could not accommodate the Applicant’s requirements. 32

[40] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient.  33 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.34 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.

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

[41] The Applicant and Respondent did not provide any submissions on this point.

[42] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 35 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion neutral.

Conclusion

[43] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[44] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 36

[45] 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.

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

COMMISSIONER

Appearances:

Mr G Roberts, Applicant;

Mr J Burgess and Ms L Costello for the Respondent.

Hearing details:

2017.

Melbourne (by telephone):

7 July 2017.

 1   PN26 and PN27.

 2   Form F8 – General Protections Application Form filed 26 May 2017, question 1.1.

 3   PN59 and PN60.

 4   PN164.

 5   PN125.

 6   File note dated 17 July 2017, 12:26 PM.

 7   [2011] FWAFB 975.

 8   PN28.

 9   PN103 – PN 114.

 10   PN168 and PN175.

 11   File note dated 17 July 2017 12.26 pm.

 12   Email from my Chambers to parties dated 19 July 2017.

 13   File note on 25 July 2017 10:24 am.

 14   Email from my Chambers to Applicant dated 28 July 2017.

 15   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 [24].

 16   PN69.

 17   PN69 to PN70.

 18   PN74.

 19   PN72 to PN76.

 20   PN78.

 21   PN80.

 22   PN87.

 23   PN89 and PN90.

 24   Respondent’s Outline of argument: Extension of time filed 9 June 2017, question 1.g.

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

 26   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409.

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

 28   Ibid.

 29   Applicant’s Outline of argument: Extension of time filed 15 June 2017, question 1.f.

 30   Ibid 39.

 31   Form F8 – General protections application involving dismissal lodged 26 May 2017, question 1.3.

 32   Respondent’s Outline of argument: Extension of time filed 9 June 2017, question 1.h.

 33   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

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

 35   Ibid.

 36   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

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